Ofgant-Jackson Chevrolet, Inc. v. MacQuade
| Decision Date | 02 December 1958 |
| Docket Number | OFGANT-JACKSON |
| Citation | 338 Mass. 144,154 N.E.2d 344 |
| Parties | CHEVROLET, INC. v. John MacQUADE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Samuel B. Mannos, Boston, Samuel E. Kaufman, Boston, for plaintiff.
No argument nor brief for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.
This is an action of contract to recover $1,230, the alleged balance due for sixteen used motor vehicles sold and delivered to the defendant, who filed a general denial and pleaded payment. A judge of the Superior Court sitting without a jury found for the defendant without making detailed findings of fact. The plaintiff excepted (a) to the action of the judge in admitting in evidence what purported to be a receipt given to the defendant signed by one McGovern for the delivery to him of seven automobiles to be returned by him to the plaintiff; (b) to the finding for the defendant and the denial of certain requests for rulings; and (c) to the denial of its motion for a new trial.
The bill of exceptions shows that findings of the following facts would have been warranted. The plaintiff sold to the defendant sixteen automobiles for $2,330 on July 31, 1954, 'warranted * * * to be in a saleable condition' and requiring 'no major repairs,' under an agreement 'that the cars * * * could be returned if not as so warranted.' The automobiles were delivered to the defendant in Sandwich within two days and down payments were made in the aggregate amount of $1,100. '[S]everal months' after the delivery of the automobiles, the defendant orally complained to one Ofgant 'about the quality of the vehicles' and Ofgant told the defendant to get in touch with 'the salesman who had sold * * * the * * * vehicles and that he would take care of him.' On March 4, 1955, McGovern went to Sandwich and picked up seven of the motor vehicles which were not in saleable condition and gave a receipt thereof. The receipt listed an amount against each vehicle, which in the aggregate came to $1,230, the precise amount of the unpaid balance for which the plaintiff sued. The receipt also stated that the seven vehicles were Before the vehicles were delivered to McGovern, the defendant called by telephone one Gendreau, the plaintiff's sales manager, who advised that 'it would be all right to turn the vehicles over to * * * McGovern.'
1. The receipt was properly admitted in evidence. The evidence that the plaintiff's sales manager told the defendant that he could properly deliver the seven automobiles to McGovern was, if believed, adequate proof of authority from the plaintiff to McGovern to take delivery of the seven automobiles and to give a receipt. McGovern's own statements are not the sole proof of his authority. Proof of that could be found in the statement of the plaintiff's sales manager, who reasonably by virtue of his position was clothed with authority in relation to sales. See Sacks v. Martin Equipment Corp., 333 Mass. 274, 279-280, 130 N.E.2d 547; Restatement 2d: Agency, §§ 285, 286.
2. The trial judge denied several requests for rulings made by the plaintiff. These are set out in part in the margin. 1
There was evidence warranting the judge in finding that delivery of the seven vehicles to McGovern, on March 4, 1955, was acceptance by the plaintiff of the return of a part of the vehicles for credit. He could have reached such a conclusion on the basis of the testimony about (a) the conversation between the defendant and Ofgant; (b) the telephone conversation between the plaintiff's sales manager and the defendant; and (c) the return of the seven automobiles to McGovern. 2 Whether the defendant could have required the plaintiff to accept return of the seven vehicles (see National Wholesale Grocery Co., Inc. v. Mann, 251 Mass. 238, 249, 146 N.E. 791; Heyman v. DeChristopero, 259 Mass. 29, 31, 155 N.E. 657) became irrelevant if the plaintiff in fact did accept them. The judge could have found on the testimony just mentioned that a partial rescission of the original sale took place without regard to whether there was an actual breach of warranty. Friedman v. Pierce, 210 Mass. 419, 423, 97 N.E. 82; Ernest E. Fadler Co. v. Hesser, 10 Cir., 166 F.2d 904, 907; Schutz v. Tostove, 191 Minn. 116, 253 N.W. 372, and note 106 A.L.R. 703, 706-707. See Williston, Sales (Rev.Ed.) §§ 497, 507b, and also §§ 271, 493b. See also Keller Tailors Trimmings Co., Inc. v. Burke Rugby, Inc., 308 N.Y. 441, 444, 126 N.E.2d 551. Cf. Jones v. Le MayLieb Corp., 301 Mass. 133, 134, 16 N.E.2d 634, 118 A.L.R. 562, where a return was not accepted. The evidence here warranting a finding of partial rescission disposes of the exception to the denial of the plaintiff's request numbered 2, for this evidence did warrant a finding for the defendant.
There was no error in refusing request numbered 10 (that the evidence did not warrant a finding that notice of breach of warranty was seasonably given) and request numbered 11 (that, as a matter of law, notice of a breach of warranty given forty days after purchase was unreasonable). The evidence already mentioned as warranting the conclusion that there had been a partial rescission also would warrant the judge in finding that the plaintiff either (1) had treated any notices given as seasonable, or (2) had waived, or regarded as irrelevant, more prompt notice of any breach of warranty. Cf. Monroe Auto Equipment Co. v. Bloom, 326 Mass. 65, 67, 93 N.E.2d 231, where no such evidence was present. Request numbered 9 was properly denied because the defendant's testimony that the seven automobiles returned to the plaintiff were not in saleable condition sufficiently tended to show a breach of warranty by the plaintiff.
The judge could not rule (see request numbered 3) that there was 'a variance between the defendant's answer and his proof.' If the judge found that there had been a partial rescission of the original sale, the plaintiff could not 'recover the entire contract price' for it could recover only on the contract as modified. Friedman v. Pierce, 210 Mass. 419, 423, 97 N.E. 82, 83. See Keller Tailors Trimmings Co., Inc. v. Burke Rugby, Inc., 308 N.Y. 441, 444, 126 N.E.2d 551. The modification of the original contract by a partial rescission could be shown under a general denial to prove that the contract, as of the date of the writ, was not what the plaintiff alleged it to be.
The plaintiff contends that the defendant is bound by testimony 'that he agreed to pay an average of $150 for each * * * vehicle.' Since the total price of sixteen vehicles at $150 each would amount to $2,400 and the plaintiff itself alleged that the total price was $2,330, it seems reasonably plain that the defendant's testimony, properly construed, meant nothing more than that the aggregate of the separate prices which he agreed to pay for the sixteen vehicles came to an average of approximately $150 per vehicle. This is supported by the receipt given by McGovern which showed a separate, nonuniform price set against each vehicle. It was open to the judge to find that the return of the seven vehicles was accepted at the prices set against the several vehicles in the receipt.
There was no error in the denial (plaintiff's request numbered 8) of a ruling that the defendant could not accept a part and reject a part...
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