Royal Paper Box Co. v. Munro & Church Co.

• Decision Date: 29 November 1933
• Parties: ROYAL PAPER BOX CO. v. MUNRO & CHURCH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 446

188 N.E. 223

ROYAL PAPER BOX CO.

v.MUNRO & CHURCH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 29, 1933.

Exceptions from Superior Court, Suffolk County; A. R. Weed, Judge.

Action of contract by the Royal Paper Box Company against the Munro & Church Company. Order for judgment in favor of plaintiff for $4,963.99 and both parties bring exceptions, and defendant appeals.

Plaintiff's exceptions sustained. Defendant's exceptions overruled. Appeal dismissed.

L. R. Eyges, of Boston, for plaintiff.

Joslin & Pugh, J. T. Pugh, and C. B. Mahoney, all of Boston, for defendant.

LUMMUS, Justice.

This is an action of contract, brought by a manufacturer of cardboard boxes against a wholesale dealer in cardboard, to recover damages for the breach of a warranty, in a sale by the defendant to the plaintiff of a carload of cardboard for the price of $1,223.94, that the goods were of merchantable quality and fit for the purpose of making into boxes for the packing and sale at retail of candy. The case was referred to an auditor, whose findings were to be final as to all questions of fact, and whose final report was filed on July 11, 1931, before Rule 89 of the Superior Court (1932) took effect. His report was in effect a case stated. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 181 N. E. 219. Upon the auditor's report, the judge ordered judgment in favor of the plaintiff for $3,419.15, plus interest from December 20, 1924, the date of the writ. Instead of relying exclusively upon the simple but adequate remedy of appeal (G. L. [Ter. Ed.] c. 231, § 96; Federal National Bank v. Koppel, 253 Mass. 157, 148 N. E. 379, 40 A. L. R. 1443;Manning v. Woodlawn Cemetery Corp., 239 Mass. 5, 9, 131 N. E. 287), both parties alleged exceptions (Haverhill v. Marlborough, 187 Mass. 150, 152, 153, 72 N. E. 943), which are presented by separate bills and not by a consolidated bill. Barrell v. Globe Newspaper Co., 268 Mass. 99, 167 N. E. 910. The defendant furthermore claimed an appeal from the order for judgment. A party cannot have both modes of appellate review upon the same matters. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 158, 181 N. E. 219. Since both parties have filed bills of exceptions, and nothing could be open on appeal that is not open on the exceptions, we deal with the exceptions, and dismiss the defendant's appeal.

The exceptions taken by each party to the order for judgment present all the questions in the case. It is unnecessary to discuss the requests for rulings.

The defendant knew that the plaintiff's business was principally the manufacture of candy boxes, and that the probable use of the carload in qestion was as material for such boxes. The defendant's method of doing business was to obtain orders from customers and then to buy cardboard from the mills with which to fill the orders. The defendant had direct contractual relation with the mills, and could insist upon the fitness of the cardboard for the intended use. The plaintiff had no rights against the mills, and could rely on no one except the defendant. If the defendant were to take no care or responsibility. It is hard to see why the plaintiff should deal with it, for the plaintiff could buy from the mills at the same price. The Continental Mills, from which the cardboard was to come, were in New Jersey, and the plaintiff had not been using their cardboard for some time. G. L. (Ter. Ed.) c. 106, § 17 (1) provides: ‘Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.’ The language of the trial judge in his order for judgment, ‘I find and rule upon the facts found by the Auditor that there was such an implied warranty’ of fitness for use in making candy boxes, is a ruling that the statutory basis for such a warranty could be found in the facts stated by the auditor, and a finding by inference from the auditor's report that the statutory basis had in fact been established. Sylvester v. Shea, 280 Mass. 508, 182 N. E. 916;Automatic Sprinkler Corp. of America v. Rosen, 259 Mass. 319, 323, 156 N. E. 693. The judge's conclusion that there was such a warranty of fitness is supported by the auditor's findings, and must stand. Agoos Kid Co., Inc., v. Blumenthal Import Corp., 282 Mass. 1, 184 N. E. 279;Country Club Soda Co., Inc., v. Arbuckle, 279 Mass. 121, 181 N. E. 256. Compare S. F. Bowser & Co., Inc., v. Independent Dye House, Inc., 276 Mass. 289, 177 N. E. 268, where the statutory implied warranty was modified by contract.

The finding of the trial judge, upon the facts found by the auditor that there was a breach of the warranty of fitness for the contemplated use, was amply justified. It was found that the cardboard appeared satisfactory when delivered, but because of a vegetable growth in the water used by the mills in New Jersey where the cardboard was made, an oily substance was deposited in the cardboard, which gradually became very offensive because of a strong and disagreeable odor which it gave forth. Obviously such cardboard was unfit for the making of candy boxes.

The cardboard arrived from the mills on October 8, 1924. On October 15, 1924, the plaintiff paid for it, in ignorance of its condition, although before that date, because of a complaint from one Daley about a similar shipment, the defendant suspected that there might be trouble with the lot in question. The plaintiff proceeded to use the cardboard in the manufacture of candy boxes. The auditor finds, justifiably so far as appears, that the first definite knowledge of the condition of the cardboard came to the plaintiff on October 25, 1924. The damages of the plaintiff are not merely the difference between the value of the goods as they were, and the value they would have had if answering to the warranty, as the defendant contends, but include damages resulting from a reasonable attempt to use the goods in manufacture, prior to October 25, 1924. Country Club Soda Co., Inc., v. Arbuckle, 279 Mass. 121, 134, 181 N. E. 256. Such damages were allowed in Agoos Kid Co., Inc., v. Blumenthal Import Corp., 282 Mass. 1, 184 N. E. 279, as appears clearly from the original papers. Accordingly, the judge properly allowed an item of damages of $3,202.43 on this ground. A smaller additional item of $138.34 for labor in getting rid of the worthless boxes falls within the same principle.

After it became clear that the goods were unfit, the defendant took back the uncut part, and repaid the plaintiff proportionately. The increased cost to the plaintiff of replacing the unfit cardboard taken back by the defendant with good material at a higher price, amounting to $78.38, was properly allowed as an element of damages. It could be found to represent the difference in market value between the goods as they were and the goods as they should have been. The allowance was necessary in order to give the plaintiff the benefit of its bargain.

The trial judge allowed as damages only the three items already mentioned, a total of $3,419.15, and ordered judgment for the plaintiff for that sum, with interest from December 20, 1924, the date of the writ. Although the plaintiff's claim was for unliquidated damages, it was proper to include interest in the damages, at least from the date of the writ, to compensate for the delay in obtaining compensation. New York Bank Note Co. v. Kidder Press Mfg. Co., 192 Mass. 391, 406, 78 N. E. 463;Childs v. Krey, 199 Mass. 352, 358, 85 N. E. 442;McGrimley v. Hill, 232 Mass. 462, 122 N. E. 186;H. D. Foss & Co., Inc., v. Whidden, 254 Mass. 146, 151, 152, 149 N. E. 679;Cochrane v. Forbes, 267 Mass. 417, 420, 166 N. E. 752;Hawkins v. Jamrog, 277 Mass. 540, 545, 179 N. E. 224,7 A. L. R. 979;Barrett Co. v. Panther Rebber Mfg. Co. (C. C. A.) 24 F.(2d) 329, 337, 338. In Agoos Kid Co., Inc., v. Blumenthal Import Corp., 282 Mass. 1, 184 N. E. 279, the original papers show that interest from a time antedating the suit was included in the damages for breach of warranty. Even in tort, interest is often allowed as a part of the damages. Cochran v. Boston, 211 Mass. 171, 97 N. E. 1100, 39 L. R. A. (N. S.) 120, Ann. Cas. 1913B, 206; Young v. New York, New Haven & Hartford Railroad Co., 273 Mass. 567, 571, 572, 174 N. E. 318;Belkus v. City of Brockton, 282 Mass. 285, 291, 184 N. E. 812. The omission of the auditor to include interest in the damages did not prevent the judge from doing so. Young v. Winkley, 191 Mass. 570, 575, 78 N. E. 377. The plaintiff does not lose its interest merely because the case has been delayed a long time; it has waited equally long for its compensation. Dodge v. Inhabitants of Rockport, 199 Mass. 274, 278, 85 N. E. 172.

The plaintiff claims damages for loss of good will resulting from the furnishing by the plaintiff to its...