Nashua River Paper Co. v. Lindsay

• Decision Date: 27 May 1924
• Parties: NASHUA RIVER PAPER COMPANY v. EDWIN P. LINDSAY. SAME v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 365

NASHUA RIVER PAPER COMPANY v. EDWIN P. LINDSAY. SAME v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1924

March 11, 1924.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Sale, Warranty what constitutes breach, notice of breach to vendor. Evidence, Presumptions and burden of proof. Practice, Civil Auditor's report.

An action of contract for breach of warranty of the quality of goods sold was heard by a judge without a jury by agreement of the parties upon a report by an auditor and evidence which was before the auditor. The judge adopted findings by the auditor, supported by evidence, as to the nature of the warranty and as to its breach. The defendant alleged exceptions to such action by the judge. Held, that the exceptions must be overruled.

The question, at the hearing of the action above described, whether the plaintiff had waived the breach of warranty, was one of fact the burden of proving which was on the defendant; and therefore an exception to a finding by the auditor, supported by the evidence and sustained by the judge, that such waiver had not been proved must be overruled.

G.L.c. 106, Section 38, does not attempt to define the kind of "notice" of breach of warranty of quality that must be given by the purchaser of merchandise to the seller within a reasonable time in order to hold the seller liable, nor do the decisions of this court formulate any definite standard therefor.

Without attempting to lay down a general rule of construction as to the substance of the notice of the breach of warranty which the buyer of merchandise must give, after acceptance of the goods, in order to hold the seller liable, it seems clear that it must refer to particular sales, so far as that is practicable; that it must at least fairly advise the seller of the alleged defects, and that it must be such as to repel the inference of waiver. Although it need not necessarily take the form of an express claim for damages or threat of such, it ought to be reasonably inferable therefrom that the buyer is asserting a violation of his legal rights. Per DE COURCY, J.

Rulings of law by a judge, hearing without a jury the action above described that none of several complaints made by the purchaser to the seller constituted sufficient notice under G.L.c. 106, Section 38, of breach of warranty of quality, were held to be erroneous, the question of the sufficiency of the complaint as notice being one of fact and not of law.

CONTRACT, with a declaration in three counts, only one of which, the first count, alleging a breach of contract described in the opinion, now is material. Writ dated March 20, 1919.

The action previously was before this court after a finding for the defendant by McLaughlin, J., who had heard the action without a jury, when, in a decision reported in 242 Mass. 206 , exceptions by the plaintiff were sustained.

The action was heard a second time by Weed, J., without a jury. The defendant asked for the following rulings:

"9. This contemporaneous interpretation put upon the contract by the parties shows unequivocally the plaintiff to have bought and accepted pulp of the quality equal to the making of paper commercially acceptable as No. 1 Kraft, and that the same was bought and paid for in the general market as such throughout the entire series of contracts with the full acquiescence of the plaintiff in this classification as to quality put upon it in all of which the Mullen test played no part.

"10. In other words, throughout down to and including the last completed transaction in the series of contracts it was the agreement of the parties to each contract that as to warranty the standard of quality was that of the preceding one, namely, the quality that had been acceptably sold in the market as No. 1 Kraft.

"11. It is submitted that upon all the evidence the only warranty was that the pulp was of the quality equal to making paper commercially acceptable as No. 1 Kraft, and in this there was no breach. It was all sold and paid for as such."

The trial judge refused to grant the rulings. He found that "Each shipment was a sale"; that the warranty of quality by the defendant was that all the sulphate pulp which the defendant sold to the plaintiff was number one grade of pulp and was suitable for use in the manufacture of number one grade paper; that the warranty had been broken and that the plaintiff had not waived and excused "the failure or failures of the defendant to deliver to the plaintiff pulp of the first quality and fit for the purpose of making No. 1 Kraft paper"; but that, however, as to all but certain pulp known as "the Van Buren pulp and some eleven carloads shipped from the Howland or Deerfield mills," the plaintiff had failed to give the notice required by G.L.c. 106, Section 38. He found for the plaintiff in the sum of $52,300.80 for breach of warranty of quality as to the Van Buren pulp and the eleven carloads shipped from the Howland and Deerfield mills. Both the plaintiff and the defendant alleged exceptions.

R. G. Dodge, (R.

S. Wilkins with him,) for the plaintiff.

T. W. Proctor, for the defendant.

DE COURCY, J. This is an action to recover damages for breach of warranty of quality in the sale of Kraft pulp, delivered by the defendant to the plaintiff from June, 1917, to January, 1919. After the earlier decision of this court (reported in 242 Mass. 206), it was retried in the Superior Court by a judge sitting without a jury. The evidence before him, by agreement of parties, consisted of the report of the auditor, and the testimony and exhibits which were in evidence before the auditor. The plaintiff waived counts 2 and 3. The judge found for the plaintiff in the sum of $40,860 and interest. The case is now before us on exceptions taken by both parties.

The facts are stated at length in the earlier decision, and only those essential to the questions before us need be repeated here. The trial judge adopted the findings of the auditor, that the defendant expressly warranted all sulphate pulp which he sold to the plaintiff to be No. 1 Kraft pulp, and suitable for use in the manufacture of No. 1 Kraft paper; and that in fact more than ninety per cent of it was not No. 1 Kraft pulp and was not suitable for use in the manufacture of No. 1 Kraft paper.

We consider first the exceptions taken by the defendant. The first, which was to the ruling that the defendant is liable, depends upon the disposition of his requests numbered 9, 10 and 11. These are in substance, that the only warranty of the defendant was that the pulp supplied by him to the plaintiff should be of a quality equal to the making of paper commercially acceptable as No. 1 Kraft, and that there was no breach of such warranty. As to these it is enough to say that the finding of the auditor, later adopted by the trial judge, as to the construction of the warranty, was amply supported by the evidence. Indeed at the trial the defendant substantially admitted that the warranty was that all sulphate pulp which he sold was No. 1 Kraft pulp. The fact, that as selling agent for the paper, he was able to obtain the prices he did, is explained by the fact that during the war there was such an unusual demand for Kraft paper that even the poorer quality commanded a higher price than usual. The third exception was to the refusal of the judge to rule that on the evidence the plaintiff had waived any failure of the defendant to deliver pulp of the warranted quality. The question of waiver was one of fact, and the burden of proving it was on the defendant. It could not properly be ruled as matter of law that he had established that defence. Nashua River Paper Co. v. Lindsay, 242 Mass. 206 , 209. See Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133 , 136. The defendant's remaining exception is to the...