Salinsky v. Perma-Home Corp., PERMA-HOME

CourtMassachusetts Court of Appeals
Writing for the CourtBefore HALE; CUTTER
Citation443 N.E.2d 1362,15 Mass.App.Ct. 193
Decision Date20 January 1983
Docket NumberPERMA-HOME
PartiesJune SALINSKY et al. 1 v.CORPORATION.

Page 1362

443 N.E.2d 1362
15 Mass.App.Ct. 193
June SALINSKY et al. 1
v.
PERMA-HOME CORPORATION.
Appeals Court of Massachusetts,
Essex.
Argued Oct. 14, 1982.
Decided Jan. 20, 1983.

Page 1363

Bruce N. Sachar, Lynn, for plaintiffs.

Santo J. Ruma, Boston, for defendant.

Before HALE, C.J., and CUTTER and PERRETTA, JJ.

CUTTER, Justice.

The evidence in this action would permit the jury to make the following findings.

A. In July, 1958, Perma-Home Corporation (the seller) installed aluminum siding on a house in Marblehead owned by the Salinskys. Mrs. Salinsky, who had seen advertising of Alcoa aluminum siding, had consulted the seller. One Caplan, then the owner of the seller, came to see the Salinskys. He gave them a quotation for Alcoa siding and quoted a "lesser figure" for "a different type of aluminum siding." [15 Mass.App.Ct. 194] Mrs. Salinsky did not choose the less expensive type. Later Caplan returned with an agreement which he read to the Salinskys. They did not read the agreement but signed it. The agreement was on a printed form with certain blanks filled in by somewhat illegible handwriting. Mrs. Salinsky could not find her copy of the agreement. A photocopy, obtained from the bank which handled the financing, was introduced in evidence. [Examination of the copy of the agreement 2 before us leaves doubt whether it called for Alcoa siding or Alcon siding.] 3

B. Installation of the siding took about six weeks. Mrs. Salinsky was then working for her husband from 9:00 A.M. to 5:00 P.M. The seller's workmen, however, sometimes arrived at her house to drop off supplies before she left for work. Cartons of siding were stored in the Salinskys' garage or on the driveway. Mrs. Salinsky could not remember whether there was writing on the cartons although "[t]here may have been."

C. Partly surrounding the house in 1958 were "big tall trees." These were cut down in June, 1971. It was then, so Mrs. Salinsky testified, that she first noticed brown dirt discoloration and pitting of the siding, although she had lived in the house and, for thirteen years, in all seasons, had [15 Mass.App.Ct. 195] looked at the siding and "watered it down." She complained to Alcoa, whose representative, after examining the house, determined that the siding was not an Alcoa product. The parties stipulated that the siding was not Alcoa siding. If the siding had been an Alcoa product, the discoloration, a result of corrosion and mildew, might not have occurred because Alcoa siding (so it was testified) is treated chemically with a special process unique to Alcoa. Mrs. Salinsky then got in touch with the seller.

This action against the seller was started on January 30, 1973. In two counts it was

Page 1364

alleged (1) that the seller knowingly made fraudulent misrepresentations and warranties upon which the Salinskys relied to their detriment, and (2) that the seller represented that it would use Alcoa siding and negligently installed an inferior product on the Salinskys' house. The seller denied the Salinskys' allegations and asserted several defenses, including various statutes of limitation. At the close of the Salinskys' evidence, the seller filed a motion for a directed verdict. As to count 1, the motion purported to be based on G.L. c. 260, § 2, under which the action should have been commenced within six years from July 25, 1958. With respect to count 2, it was asserted that (under c. 260, § 2A, prior to its amendment by St.1973, c. 777, § 1) the action should have been commenced within two years from July 25, 1958. The seller also claimed that under both counts there was no compliance with the time limit set out in c. 260, § 2B. Without objection by counsel, the case was submitted to the jury on count 1, essentially only as an action alleging deceit (and thus a tort) and on instructions which did not deal in any direct way with any questions under any statute of limitations.

The jury returned a verdict for the Salinskys of $7,000 on count 1, and a verdict for the seller on count 2. There was evidence that the cost of removing the present siding and replacing it with Alcoa siding would be about $7,000.

After the verdicts were returned, the seller filed a motion for judgment in its favor notwithstanding the verdict on [15 Mass.App.Ct. 196] count 1. The motion referred to the grounds set forth in the seller's earlier motion for a directed verdict. 4 The trial judge granted the motion, and then in effect merely stated to the jury that the Salinskys' claim was barred by a statute of limitations. It thus is necessary to determine whether any of such statutes possibly applicable was tolled during the thirteen years from the installation of the siding in 1958 until 1971, when the Salinskys cut down their trees and first noticed the discoloration and pitting. The period exceeded the six year limitation period in G.L. c. 260, §§ 2 and 2B. The Salinskys have the burden of proving that the injuries of which they complain arose within the applicable period of limitation prior to initiation of this action. See Frank Cooke, Inc. v. Hurwitz, 10 Mass.App. 99, ---, Mass.App.Ct.Adv.Sh. (1980) 1197, 1207, 406 N.E.2d 678. See also Friedman v. Jablonski, 371 Mass. 482, 487-488, 358 N.E.2d 994 (1976).

1. The Salinskys rely on G.L. c. 260, § 12, which provides that, if "a person liable to a personal action fraudulently conceals the cause of such action from the knowledge of the person entitled to bring it, the period prior to the discovery of his cause of action by the person so entitled shall be excluded in determining the time limited for the commencement of the action." In the absence of a fiduciary relationship between the seller and the Salinskys, the record contains no evidence permitting a finding of fraudulent concealment. The Salinskys were given a copy of the contract which they later lost. They could have read it at any time and, if its contents contradicted their view of the arrangement or if their copy was illegible, they could have sought clarification from the seller. The siding actually installed was delivered in cartons over a substantial period of time, and the siding, the cartons, and their markings (if any) could have been examined by the Salinskys. If it be [15 Mass.App.Ct. 197] assumed, as the jury found, that there was initial fraud in the sale of the siding, that did not amount to fraudulent concealment under § 12. Connelly v....

To continue reading

Request your trial
20 practice notes
  • Mammoet Usa v. Entergy Nuclear Generation, No. 04-P-249.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 18 Julio 2005
    ...1009 (1990) (installation of permanent electrical distribution panel in an electrical generating plant); Salinsky v. Perma-Home Corp., 15 Mass.App.Ct. 193, 198-199, 443 N.E.2d 1362 (1983) (installation of aluminum Mammoet's activity here could not be deemed an improvement under these author......
  • Solomon v. Birger
    • United States
    • Appeals Court of Massachusetts
    • 26 Junio 1985
    ...some affirmative act of concealment of the cause of action. Salinsky v. Perma-Home Corp., 15 Mass.App. [19 Mass.App.Ct. 640] 193, 197, 443 N.E.2d 1362 (1983). Compare Kannavos v. Annino, 356 Mass. 42, 50, 247 N.E.2d 708 2. The building law clause. It requires a very expansive, indeed, imagi......
  • Parent v. Stone & Webster Engineering Corp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 18 Julio 1990
    ...a ship); Milligan v. Tibbetts Eng'g Corp., 391 Mass. 364, 461 N.E.2d 808 (1984) (extension of a road); Salinsky v. Perma-Home Corp., 15 Mass.App.Ct. 193, 443 N.E.2d 1362 (1983) (aluminum siding); Cournoyer v. Massachusetts Bay Transp. Auth., 744 F.2d 208 (1st Cir.1984) (prefabricated steel ......
  • Snow v. Harnischfeger Corp., Civ. A. No. 90-13096-WD.
    • United States
    • U.S. District Court — District of Massachusetts
    • 20 Abril 1993
    ...1079 (1992). 6 Parent v. Stone & Webster Engineering Corp., 408 Mass. 108, 556 N.E.2d 1009 (1990). 7 Salinsky v. Perma-Home Corp., 15 Mass.App.Ct. 193, 443 N.E.2d 1362, app. den., 388 Mass. 1105, 448 N.E.2d 766 8 Conley v. Scott Products, Inc., 401 Mass. 645, 518 N.E.2d 849 (1988). 9 Courno......
  • Request a trial to view additional results
20 cases
  • Mammoet Usa v. Entergy Nuclear Generation, No. 04-P-249.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 18 Julio 2005
    ...1009 (1990) (installation of permanent electrical distribution panel in an electrical generating plant); Salinsky v. Perma-Home Corp., 15 Mass.App.Ct. 193, 198-199, 443 N.E.2d 1362 (1983) (installation of aluminum Mammoet's activity here could not be deemed an improvement under these author......
  • Solomon v. Birger
    • United States
    • Appeals Court of Massachusetts
    • 26 Junio 1985
    ...some affirmative act of concealment of the cause of action. Salinsky v. Perma-Home Corp., 15 Mass.App. [19 Mass.App.Ct. 640] 193, 197, 443 N.E.2d 1362 (1983). Compare Kannavos v. Annino, 356 Mass. 42, 50, 247 N.E.2d 708 2. The building law clause. It requires a very expansive, indeed, imagi......
  • Parent v. Stone & Webster Engineering Corp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 18 Julio 1990
    ...a ship); Milligan v. Tibbetts Eng'g Corp., 391 Mass. 364, 461 N.E.2d 808 (1984) (extension of a road); Salinsky v. Perma-Home Corp., 15 Mass.App.Ct. 193, 443 N.E.2d 1362 (1983) (aluminum siding); Cournoyer v. Massachusetts Bay Transp. Auth., 744 F.2d 208 (1st Cir.1984) (prefabricated steel ......
  • Snow v. Harnischfeger Corp., Civ. A. No. 90-13096-WD.
    • United States
    • U.S. District Court — District of Massachusetts
    • 20 Abril 1993
    ...1079 (1992). 6 Parent v. Stone & Webster Engineering Corp., 408 Mass. 108, 556 N.E.2d 1009 (1990). 7 Salinsky v. Perma-Home Corp., 15 Mass.App.Ct. 193, 443 N.E.2d 1362, app. den., 388 Mass. 1105, 448 N.E.2d 766 8 Conley v. Scott Products, Inc., 401 Mass. 645, 518 N.E.2d 849 (1988). 9 Courno......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT