Menici v. Orton Crane & Shovel Co.

• Decision Date: 30 March 1934
• Citation: 189 N.E. 839,285 Mass. 499
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MENICI v. ORTON CRANE & SHOVEL CO.

285 Mass. 499

189 N.E. 839

MENICI

v.ORTON CRANE & SHOVEL CO.

Supreme Judicial Court of Massachusetts, Essex.

March 30, 1934.

Exceptions from Superior Court, Essex County; W. D. Gray, Judge.

Action of contract or tort by Octavius Menici against the Orton Crane & Shovel Company, tried before a judge sitting without a jury. Findings in favor of the plaintiff on the first count of the declaration, and for the defendant on the second count of the declaration, and the defendant brings exceptions.

Exceptions overruled.W. Herbits, of Boston, F. J. Quirico, of Pittsfield, and J. Rommell, of Dorchester, for plaintiff.

P. H. Breen, of Worcester, for defendant.

DONAHUE, Justice.

The plaintiff purchased a gasoline operated shovel from the defendant on a conditional sales agreement. After the defendant had sued this plaintiff on certain promissory notes given by him in payment for the shovel, the plaintiff brought the present action which is described in the writ as an action of contract or tort. The two actions were tried together before a judge of the Superior Court sitting without a jury. The plaintiff's declaration, as it was during the trial, alleged in its first count the breach by the defendant of a warranty that the shovel was suitable and fit for excavation, and in the second count fraudulent representations as to the shovel. The trial judge found for the present defendant in its action on the promissory notes for the full amount of the notes and interest. He found for the plaintiff in the present action for $3,500 on the first count of the declaration and for the defendant on the second count.

At the close of the evidence the defendant filed a motion praying that ‘the court enter a verdict for the defendant’ and excepted to its denial. We treat this as a motion that a finding be entered for the defendant and as raising only the question whether as matter of law on all the evidence a finding in favor of the plaintiff was permissible. New Bedford Cotton Waste Co. v. Eugen C. Andres Co., 258 Mass. 13, 16, 154 N. E. 263;Ashapa v. Reed, 280 Mass. 514, 516, 182 N. E. 859. There was evidence which justified the finding by the judge that the machine was defective; that, although it was given proper care and use, material parts broke soon after its operation; that it was not, as guaranteed, in accordance with the specifications which were part of the contract; and that its efficiency was thereby materially impaired. There was testimony to the contrary but the evidence permitted a finding for the plaintiff and hence the motion was rightly denied. The defendant excepted to the specific findings made by the judge upon requests filed by the plaintiff that the machine was not as represented, not in accordance with the written specifications, was unfit for the purpose for which the plaintiff intended it to be used and that there was a breach by the defendant of an express warranty. Since there was evidence, which, if believed, justified such findings, these exceptions must be overruled. As to misrepresentations, the judge correctly ruled that by keeping and using the machine the plaintiff had lost his right to rescind the contract; that his only remedy was for breach of warranty and hence found for the defendant on the second count. The ‘guarantee’ contained in the specifications that the machine was in accordance with the specifications constituted a warranty of which it could be found that there was a breach. Wiley v. Athol, 150 Mass. 426, 23 N. E. 311,6 L. R. A. 342;Raymond Syndicate, Inc., v. American Radio & Research Corp., 263 Mass. 147, 160 N. E. 821; 12 R. C. L. 1056, § 5. The defendant's exception to the refusal by the judge to rule as requested that there was no breach of warranty by the defendant cannot be sustained. The plaintiff contends that the defendant did not seasonably file in writing an exception to the action of the trial judge upon request for rulings filed by the parties. Since the decision here is for the plaintiff, we do not deem it necessary to pass upon this contention.

The defendant filed a motion for a new trial on the stated grounds that the finding for the plaintiff was against the evidence, the weight of the evidence, the law and the evidence, and that the damages were excessive. The motion was denied. In a case tried before a judge without a jury a party may not, as of right, be heard on a motion for new trial except on the grounds of ‘mistake of law’ and ‘newly discovered evidence.’ G. L. (Ter. Ed.) c. 231, § 129; O'Grady v. Supple, 148 Mass. 522, 20 N. E. 114. The statute does not limit the power of such a judge, in the exercise of sound judicial discretion, to set aside a finding made by him, McKinley v. Warren, 218 Mass. 310, 312, 105 N. E. 990, but ‘it is only in an extraordinary case revealing an abuse of judicial power, or an excess of jurisdiction or similar error, that the action of the trial court upon a motion for a new trial can be reversed.’ Berggren v. Mutual Life Ins. Co., 231 Mass. 173, 176, 120 N. E. 402, 403;Carrato v. Miller, 264 Mass. 533, 163 N. E. 251. In the denial of the defendant's motion for new trial there was no abuse of judicial discretion and no error.

At the hearing on the defendant's motion for a new trial the judge allowed, subject to the defendant's exception, a motion of the plaintiff to amend his declaration. The amendment consisted of the addition to the first count of the declaration of an allegation that the machine sold and delivered was not in accordance with the specifications. A copy of the specifications was annexed to the amendment to the declaration. The contract of sale warranted that the machine was in good working order and provided that no warranties should be implied. The specifications contained a guarantee that with proper care and use the machine would operate in accordance with the specifications. The statutes gave to the trial judge broad powers to allow amendments to pleadings (G. L. [Ter. Ed.] c. 231, §§ 51, 138) and his finding that the amendment enabled the plaintiff to sustain his action for the cause for which it was intended to be brought rested in his sound judicial discretion. Nolan v. New York, New Haven & H. R. R., 283 Mass. 156, 185 N. E. 925;Melanson v. Smith, 282 Mass. 85, 87, 184 N. E. 382. Here the amendment was allowed after the trial and care must be taken to be certain that the issue presented by the amendment was fully and fairly tried. Pizer v. Hunt, 253 Mass. 321, 331, 148 N. E. 801;Bucholz v. Green Brothers Co., 272 Mass. 49, 55, 172 N. E. 101;Ames v. Beal, 284 Mass. 56, 61, 62, 187 N. E. 99. A reading of the record indicates that there was a full and fair trial of that issue, in no particular respect was the contrary pointed out in argument and the exception to the allowance of the amendment must be overruled.

The plaintiff, subject to the defendant's exceptions, was permitted to testify that, in his opinion, the value of the machine when delivered to him was $2,000. The defendant contends that this was error because as it asserts the plaintiff was not the owner of the machine. By...