Piekos v. Bachand

• Decision Date: 08 November 1955
• Citation: 129 N.E.2d 890,333 Mass. 211
• Parties: Joseph J. PIEKOS v. Albert BACHAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 890

129 N.E.2d 890

333 Mass. 211

Joseph J. PIEKOS v. Albert BACHAND.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Sept. 20, 1955.

Decided Nov. 8, 1955.

J. Norman O'Connor, Adams (Walter J. Donovan, Adams, with him), for plaintiff.

John N. Alberti, North Adams (Benjamin Apkin, North Adams, with him), for defendant.

Before QUA, C. J., and RONAN, SPALDING, WILLIAMS and COUNIHAN, JJ.

COUNIHAN, Justice.

This is an action of contract brought in a District Court to recover the amount due on the sale of forty-six spruce trees by the plaintiff to the defendant. The judge found for the plaintiff and at the request of the defendant reported the action to the Appellate Division which found no error in the judge's rulings and dismissed the report. The defendant appealed. There was no error.

There was evidence as follows: The plaintiff, who was a farmer in Cheshire, planted spruce trees on his farm for the purpose of raising Christmas trees. In December of 1952 he advertised in a local newspaper that he had Christmas trees for sale. As a result the defendant went to the farm and told the plaintiff that he wanted to purchase some of these trees 'for the purpose of transplanting them on land' in Williamstown. He bought forty-six trees at a price of $12 each. The trees were later delivered to the defendant and the plaintiff assisted him in planting them. The plaintiff's grove had not been inspected by the department of agriculture in accordance with G.L. (Ter.Ed.) c. 128, § 17, and the plaintiff had not received a certificate under that section, nor was he licensed under § 18, so that he would be prohibited from selling trees commonly known as nursery stock unless he comes within the exception provided under § 19. ¹

The judge made the following findings. 'The plaintiff is a farmer. His farm is devoted in part to the raising of Christmas trees which were in connection with and incidental to it. He does not conduct a 'nursery' and his farm is not a place where nursery stock is grown. The sale of the trees was not a sale of nursery stock. The so called Christmas tree is cone bearing, needle leaved, and retains its leaves throughout the year. They are a small fir tree and may be of pine, spruce or balsam. In this case the forty-six (46) trees were spruce commonly known as Christmas trees.'

The defendant filed requests for rulings several of which challenged the validity of the sale because it was not made according to the provisions of c. 128, §§ 17, 18, and 19. The judge denied these requests because they were not material and applicable to the facts found by him. The plaintiff filed three requests all of which were allowed. ² The judge ruled that the plaintiff was not conducting a nursery and the sale was not in violation of law. These rulings of the judge present the only questions before us.

The accuracy of these rulings depends in large measure upon the correctness of the findings of fact by the judge. We are of opinion that the findings of the judge were warranted by the evidence. While it is true that these trees were sold by the plaintiff to the defendant for transplanting, they were grown to be cut as Christmas trees and they were advertised for sale as such. It is apparent on the record that the plaintiff was not maintaining a nursery. It was said in Town of Needham v. Winslow Nurseries, Inc., 330 Mass. 95, at page 100, 111 N.E.2d 453, at page 456: 'According to dictionary definition a nursery is a place where trees, shrubs, plants, and so...