S.F. Bowser & Co. v. Birmingham

• Decision Date: 22 July 1931
• Citation: 177 N.E. 268,276 Mass. 289
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: S. F. BOWSER & CO., Inc., v. BIRMINGHAM.

276 Mass. 289

177 N.E. 268

S. F. BOWSER & CO., Inc.,

v.BIRMINGHAM.

Supreme Judicial Court of Massachusetts, Suffolk.

July 22, 1931.

Action by S. F. Bower & Co., Inc., against John C. Birmingham, trustee in bankruptcy. Verdict for plaintiff. On report from Superior Court.

New trial ordered.

M. C. Taylor, of Boston, for plaintiff.

R. P. Boruchoff, of Boston, for defendant.

PIERCE, J.

This is an action of contract wherein the plaintiff, a manufacturer of many years' experience of systems or installations for the clarification of the solvent used in dry cleaning establishments, entered into a written contract with the defendant for the furnishing and installation by the plaintiff in the plant of the defendant of ‘one complete continuous white solvent circulating system for eight washers as shown on blueprint 6314.’ It was ‘agreed’ at the trial ‘that the contract may be regarded as amended or modified by mutual agreement by substituting ‘blueprint 6358’ for ‘blueprint 6314,’ and point is made of a variance, the pleadings [so] being treated for the purposes of the trial and of this report. * * *' The plaintiff in the first count of its declaration seeks to recover the unpaid balance of the contract price. The jury found for the defendant upon the second and third counts of the declaration and no issue arising during the trial of either of these counts is before this court.

The answer of the defendant to the first count ‘admits it made with the plaintiff the contract substantially as alleged in the declaration’; and ‘admits also the payment by it to the plaintiff as alleged in said first count,’ but ‘denies that the plaintiff has fully performed its contract.’ Passing further answer of the defendant which alleged facts in the nature of recoupment and which might be a possible basis of a cross action for damages, the defendant answered ‘that it made known to, and informed the plaintiff of the particular purpose for which it required the equipment, in question, to wit, for eight washers, shown to and described to the plaintiff; twelve to eighteen hours being required for washing. And the defendant relied upon the plaintiff's experience, skill and judgment to supply a system adequate, suitable and proper to such purpose and conditions. But the defendant says that the system which the plaintiff in fact supplied and installed, was not one complete continuous white solvent circulating system for eight washers, which the plaintiff was bound by its contract to furnish and install.’

At the trial witnesses for the plaintiff testified that installation called for by the ‘blueprint 6358’ was in fact made. A witness for the plaintiff testified that he installed the plaintiff's system and that he placed one connecting supply pipe underground across the middle of the room instead of around the wall at the end of the building, as shown by the blueprint; that this pipe was placed in a trench which was dug by the defendant's contractor; that this installation had to be done-it made no difference whatever, it merely shortened the pipe. No evidence is reported to show an express assent to this departure from the blueprint, or any implied assent except as may be inferred from the facts stated in the above testimony.

‘After the plaintiff's system was put in operation along with the other machinery in the defendant's plant, a large proportion of the garments which went through the plant were found on completion of processing to have yellow spots upon them.’ At the trial certain of the defendant's witnesses, having various degrees of experience with, and knowledge of, dry cleaning clarification systems, including the plaintiff's system, testified that in their opinions the system was not a ‘continuous white solvent circulating system’; that it was a continuous system; that it was a circulating system; that it was a white solvent system; but that it was not ‘a continuous white solvent circulating system for eight washers,’ because of the fact that in order to get ‘white solvent’ it is necessary with this system, as described in the reported evidence, ‘to take certain ‘batches' of solvent from time to time out of the solvent then circulating in the other parts of the system and purify it to a water white color, and during the time said batch is being purified, the remaining solvent then circulating through the system may or may not be so purified as to be water white.’ In contradiction of this evidence the plaintiff introduced various witnesses who testified that the system was a continuous white solvent circulating system for eight washers, for the reasons that it is a continuous system, a white solvent system and a circulating system, and because the ‘practices in the dry cleaning industry do not call for, and manufacturers do not make, systems which produce water white solvent as an automatic part of the operation, but only by purifying certain parts of the solvent from time to time in ‘batches' according to the wishes and requirements of the owner of the particular system.’

The plaintiff's system is described in the reported evidence at great length and in detail. In general it supported the contention of the plaintiff and would have warranted the jury in finding that the system was installed in accordance with the written contract. There was evidence, however, on behalf of the defendant tending to show that the yellow spots which occurred on garments were caused by Huron alkali carried in the current of circulating solvent from the clarifying tanks to the washers, and that the yellow stains were caused by the failure of the plaintiff's system properly to clarify the solvent, thus sending back into the washers unclarified solvent. There was evidence on behalf of the plaintiff tending to show that the system is so constructed that Huron alkali cannot travel with the solvent in the manner contended by the defendant; that the Huron alkali is in any event harmless to fabrics; and that the particular yellow spots were caused by faulty cleansing practices consisting of failure to pre-spot garments to remove fruit stains and the like, the improper use of ammonia thrown directly onto the clothes in the washers, and excessive heat in the drying tumblers; that the method of operating a system such as that of the plaintiff in any particular plant depends upon the wishes of the owner and operator, and that they vary materially from plant to plant; that the amount of purified gasoline is a matter resting wholly upon the decision of the owner and operator of the plant and the type of clothing being washed there.

In the direct testimony of William B. Cooper, the defendant's...