M.K. Smith Corp. v. Ellis

• Decision Date: 19 October 1926
• Citation: M.K. Smith Corp. v. Ellis, 257 Mass. 269, 153 N.E. 548 (Mass. 1926)
• Parties: M. K. SMITH CORPORATION v. ELLIS.
• Court: Supreme Judicial Court of Massachusetts

257 Mass. 269

153 N.E. 548

M. K. SMITH CORPORATION

v.ELLIS.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 19, 1926.

Appeal from Superior Court, Worcester County; J. D. McLaughlin, Judge.

Action of contract by the M. K. Smith Corporation against E. W. Ellis to recover for cost of construction of a cider tank. From finding for plaintiff on one count only of its declaration, it appeals. Order for judgment affirmed.

G. R. Stobbs, H. H. Hartwell, and L. E. Stockwell, all of Worcester, for appellant.

J. H. Reid, of Worcester, for appellee.

CROSBY, J.

Under the first count of the plaintiff's amended declaration, it seeks to recover the sum of $750, the cost of the construction of a cider tank for the defendant, at his request. The answer of the defendant admits that he made a verbal agreement with the plaintiff to build a tank in which to store cider, but that the tank as constructed was not suitable for that purpose, and never was accepted by the defendant. The case was referred to an auditor, whose findings of fact were to be final. The judge of the superior court, after hearing upon the auditor's report, found for the defendant on the first count and for the plaintiff on the second count.

The auditor made the following and other findings: That the defendant gave the plaintiff an order for the construction of the tank in the summer of 1922; that the dimensions and material were stated; that it was to be built according to plans made by the plaintiff, it being understood that it was to be used for the storing and holding of cider; that if properly constructed it would be suitable for storing and holding cider; that the defendant in ordering the tank relied on the skill and judgment of the plaintiff to construct it properly; that after it was finished it was found to leak and the plaintiff's men tightened it on several occasions; that after it had been so tightened, it apparently stopped leaking but began to leak again after the men had left it; that it could be made to leak by any one meddling with it by a slight loosening of the joints; that the cost of preventing the leaking would be comparatively small; that the defendant waived any defect in the construction of the tank with the exception of the leak; that after it had been constructed, the defendant told the plaintiff's treasurer that if he would repair it by the following September so that it would not leak, he (the defendant) would pay for it; that without fault of thedefendant from some unknown cause it was destroyed by fire on or about July 1, 1923, before it had been used by the defendant and the leak stopped by the plaintiff; that the defendant never formally accepted the tank, nor did he offer to return it to the plaintiff.

[1] The agreement was for the building of a specific article in accordance with the terms of the agreement. It was not a sale of the article to be built, and was not within the terms of the provision of the statute of frauds in the Sales Act (G. L. c. 106, § 6) which is declaratory...