Stevens v. William S. Howe Co.

• Decision Date: 27 May 1931
• Citation: 275 Mass. 398,176 N.E. 208
• Parties: STEVENS v. WILLIAM S. HOWE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 398

176 N.E. 208

STEVENS

v.WILLIAM S. HOWE CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 27, 1931.

Appeal from First District Court of Eastern Middlesex; H. Huestis Newton, Special Judge.

Action by Charlotte H. Stevens against William S. Howe Company. On defendant's appeal from order dismissing report.

Order affirmed.

M. J. Mulkern, of Boston, for appellant.

P. Potter, of Boston, for appellee.

RUGG, C. J.

There are two counts in the declaration. It is alleged in the first count that the parties entered into a contract in writing whereby the defendant agreed to furnish and install in a house of the plaintiff a furnace and heating system according to specifications, guaranteed to heat certain rooms of the house to specified degrees of temperature in any weather; that the defendant installed a heating system not complying with the contract as to heating such rooms; that the plaintiff has paid the full consideration as required by the contract and has been caused damage by the default of the defendant. It is alleged in the second count that the furnace installed by the defendant under the contract was defective in that it emitted thick, black, oily smoke into and through the hosue causing damage to its furnishings. The answer of the defendant, among other matters, pleaded the equitable defense (G. L. c. 231, § 31; Jump v. Sparling, 218 Mass. 324, 325, 105 N. E. 878;Bancroft Trust Co. v. Canane (Mass.) 171 N. E. 281) that the contract signed by the parties through mutual mistake ‘had no application to installation of the type’ of furnace which was the subject of the contract, and did not represent the agreement of the parties.

At the trial on the merits, the plaintiff was asked on cross-examination (1) if she had given any thought to the question whether a warranty was included in the contract, and (2) when she first learned that there was a guaranty in the contract. These questions were excluded against the objection of counsel for the defendant, who offered to show that the witness did not know that there was a warranty or guaranty in the contract when she signed it, and gave no thought to that matter. There was no error of law in the exclusion of these questions. It would have been competent for the defendant to show under its answer that through the mutual mistake of both parties the written contract did not express the agreement of the parties. Fowle v. Pitt & Scott, Ltd., 183 Mass. 351, 354, 67 N. E. 343;Martin v. Jablonski, 253 Mass. 451, 453, 149 N. E. 156. Mistake of one party is not sufficient. The mistake must be shared by both with respect to the same matter. Barrell v. Britton, 252 Mass. 504, 508, 148 N. E. 134;Harwood v. Security Mutual Life Ins. Co., 263 Mass. 341, 347, 161 N. E. 589. The answer of the defendant did not specify that any particular part or parts of the contract were inserted by mutual mistake. Fairly interpreted, that pleading means that the whole writing was a mistake. At all events, it does not call attention to any clause, paragraph or provision as introduced into the contract by mutual mistake. The inquiries to the plaintiff which were excluded were directed to the single subject of warranty. The word ‘warranty’ does not occur in the contract. There is in the contract a heading, ‘Guarantee.’ That heading comprehends a provision that the defendant ‘hereby guarantees that the said furnace shall warm’ designated rooms to specified temperature in any weather subject to certain conditions not now material. In these circumstances it was the duty of the defendant to guide the attention of the trial judge to the answer filed by the defendant and to state that the questions to the plaintiff were directed to the ‘Guarantee’ paragraph of the contract with the hope of eliciting testimony tending to show that that paragraph was in the contract through mistake so far as she was concerned, and to state further that at the proper time he proposed to show by appropriate evidence that that paragraph was also in the contract by mistake so far as the defendant was concerned. Fairness on the part of the attorney toward the trial judge required that the latter should be placed in a position where he could gain a view of the precise issues involved and the point to which questions are addressed. As the trial apperas on the present record, the possible competency of the questions excluded did not appear at that time. They were not directed very obviously to the equitable defense of mistake as pleaded. There is nothing in the record to indicate that they would have been competent at a later stage in the trial. The witness was not recalled. No evidence seems to have been offered at any time tending to show mistake on the part of the defendant as to the whole or any part of the...