Stevens v. William S. Howe Co.

• Decision Date: 25 May 1931
• Citation: 275 Mass. 398
• Parties: CHARLOTTE STEVENS v. WILLIAM S. HOWE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 398

CHARLOTTE STEVENS v. WILLIAM S. HOWE CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1931

December 3, 1930.

Present: RUGG, C.

J., CROSBY, PIERCE CARROLL, WAIT, SANDERSON, & FIELD, JJ.

Contract, Validity What constitutes, Performance and breach. Witness Cross-examination. Practice, Civil, Equitable defence Conduct of trial, Exceptions.

In the circumstances in an action for breach of a contract in writing for the furnishing and installation of a furnace and heating system, wherein the defendant pleaded, as an equitable defence under G.L.c.

231, Section 31, 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, no error appeared in the exclusion of certain questions asked by the defendant of the plaintiff on cross-examination as to whether he "had given any thought to the question whether" a warranty was included in the contract and as to when he had first learned that there was a guaranty in the contract, the record not showing that such questions were directed to the equitable defence of mistake as pleaded: their possible competency did not appear at the time the questions were asked and no evidence was offered at any time to show mistake on the part of the defendant as well as of the plaintiff as to the whole or any part of the contract.

If the defendant intended the evidence he sought by the above questions to be relevant to his equitable defence, it was his duty to guide the attention of the trial judge to the answer filed by him and to state that the questions to the plaintiff were directed to certain portions of the contract with the hope of eliciting testimony to show that such portions were in the contract through mistake so far as the plaintiff was concerned, and that at the proper time he proposed to show by appropriate evidence that such portions were also in the contract by mistake so far as the defendant was concerned.

It seems that a party cross-examining his adversary is not required to make an offer of proof in order to save a valid exception to the exclusion of questions, although he may be required by the trial judge to state his hope concerning the answer of the witness to such questions.

Evidence, at the trial of an action for breach by the defendant of a contract in writing to instal a heater in the plaintiff's house guaranteed to heat the house to specified temperatures, that the heater installed was wholly inadequate to heat the house, warranted a finding for the plaintiff for the amount of the reasonable expense to which he had been put to obtain the degree of heat required by the contract.

Evidence, at the trial of the action above described, that there was a defect in the heater, whereby heavy smoke spread through the house of the plaintiff to his substantial injury, warranted a finding for the plaintiff on a second count for the amount of the reasonable expenses incurred by the plaintiff to repair such injury.

CONTRACT. Writ in the District Court of Somerville dated September 22, 1928.

Material evidence at the trial in the District Court is stated in the opinion. The judge found for the plaintiff in the sum of $587 and reported the action to the Appellate Division for the Northern District. The report was ordered dismissed and the defendant appealed.

The case was argued at the bar in December, 1930, before Rugg, C.J., Pierce, Carroll, Wait, & Field, JJ., and afterwards was submitted on briefs to all the Justices.

M.J. Mulkern, for the defendant. B. Potter, for the plaintiff.

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 instal 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 house, causing damage to its furnishings. The answer of the defendant, among other matters, pleaded the equitable defence (G.L.c. 231 Section 31; Jump v. Sparling, 218 Mass. 324 , 325; Bancroft Trust Co. v. Canane, 271 Mass. 191 , 198) 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. Martin v. Jablonski, 253 Mass. 451 , 453. Mistake of one party is not sufficient. The mistake...