Nashua River Paper Co. v. Lindsay

• Decision Date: 01 July 1922
• Citation: 136 N.E. 358,242 Mass. 206
• Parties: NASHUA RIVER PAPER CO. v. LINDSAY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 206

136 N.E. 358

NASHUA RIVER PAPER CO.

v.LINDSAY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1922.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Action by the Nashua River Paper Company against Edwin P. Lindsay and others for breach of warranty in a sale of pulp. Finding for defendants, and plaintiff brings exceptions. Exceptions sustained.R. G. Dodge and R. S. Wilkins, both of Boston, for plaintiff.

Robert W. Nason and Thomas W. Proctor, both of Boston, for defendants.

RUGG, C. J.

This is an action of contract. The single count of the declaration now material alleges that the plaintiff, a paper manufacturer, bought of the defendant, a dealer, large quantities of pulp warranted to be of quality known as ‘No. 1. Kraft,’ fit for the manufacture of ‘No 1. Kraft’ paper, relying upon the defendant's skill and judgment to furnish such pulp, breach of that warranty as to quality and loss to the plaintiff. The answer sets up sale of pulp by sample without warranty, acceptance of same by the plaintiff acting independently of the defendant, and otherwise denies the allegations of the declaration. The answer did not set up that, if there was a warranty and breach, the plaintiff had waived it. The case was referred to an auditor, who found that there was a warranty and breach as alleged, and assessed substantial damages in favor of the plaintiff. It then was tried before a judge without a jury, the evidence being the auditor's report, a stenographic copy of the testimony before the auditor and the exhibits put in evidence before the auditor. Findings made by the judge are incorporated in the exceptions. He did not reverse the finding of the auditor as to warranty of quality and breach, but apparently assumed their correctness. See Leonard v. Carleton & Hovey Co., 230 Mass. 262, 264, 119 N. E. 674. He found that the pulp shipped to the plaintiff by the defendant--

‘was received and accepted by the plaintiff and manufactured into paper, which it put upon the market as No. 1 Kraft paper, and represented and sold as such through the agency of the defendant, its selling agent.’

The conclusion of the finding is that--

‘In view of all circumstances in the case, the relations of the parties and their written correspondence, and of all the evidence, I am satisfied that if there was any breach of warranty on the defendant's part the plaintiff waived it, and I find for the defendant.’

The plaintiff excepted to the rulings (1) that the defendant was not liable; (2) that the fact that the plaintiff complained to the defendant of the quality of the pulp was not sufficient notice of the breach of warranty; and (3) that it was necessary for the plaintiff to give the defendant reason to understand that it intended to hold him to damages.

[2] It is indubitable that the finding in favor of the defendant, rightly interpreted and construed, was founded upon waiver. The exception to the ruling that the defendant was not liable was in substance and effect an exception to the instruction, which the judge necessarily must have given himself, that as matter of law a finding might be made in favor of the defendant on the ground of waiver. That ruling was erroneous. Waiver in a case like the present is an affirmative defense. Waiver is the intentional relinquishment of a known right. It is not open as a defense under a general denial. It must be pleaded and proved by the party alleging it. Boyden v. Hill, 198 Mass. 477, 486, 85 N. E. 413;Wood v. Blanchard, 212 Mass. 53, 56, 98 N. E. 616;St. John Bros. Co. v. Falkson, 237 Mass. 399, 402, 130 N. E. 51. It is analogous in this respect to laches, which when relied on as a defense must be pleaded. Kershishian v. Johnson, 210 Mass. 135, 139, 96 N. E. 56,36 L. R. A. (N. S.) 402. See Wylie v. Marinofsky, 201 Mass. 583, 88 N. E. 448;Leary v. Wm. G. Webber Co., 210 Mass. 68, 96 N. E. 136. Waiver was not pleaded by the present defendant, nor in any wise open under the answer. There is nothing in the record to show that the trial proceeded on the theory of waiver as a defense. The auditor in his report does not discuss nor pass upon waiver. Evidence bearing directly upon that question does not appear on the record. A plaintiff cannot rightly be precluded from recovery on the ground of waiver when his attention has not been called to that defense by the answer unless clearly the trial has been conducted as if it had been properly pleaded. A judge cannot open such a defense at the conclusion of the trial without the express consent of the parties. Plummer v. Boston Elevated Railway, 198 Mass. 499, 516, 84 N. E. 849;Elkins v. Boston & Albany Railroad, 115 Mass. 190, 201;Commonwealth v. Hassan, 235 Mass. 26, 32, 126 N. E. 287.

[4] There is grave doubt whether on this record...