Trimount Lumber Co. v. Murdough
Decision Date | 11 January 1918 |
Citation | 229 Mass. 254,118 N.E. 280 |
Parties | TRIMOUNT LUMBER CO. v. MURDOUGH. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; William Cushing Wait, Judge.
Action by the Trimount Lumber Company against Albert B. Murdough. There was verdict for plaintiff, and defendant excepts. Exceptions overruled.C. P. Sampson, of Boston, for plaintiff.
Jas. H. Vahey and Samuel K. Casson, both of Boston (Philip Mansfield, of Boston, of counsel), for defendant.
[1][2] It appears from the correspondence between the parties, that the plaintiff's predecessor to whose rights it has succeeded contracted to deliver free on board at the place of shipment, a certain quantity of ‘long leaf merchantable hard pine’ the sizes of which were specified on schedules, which were to be used for the first floor of the high school building in process of erection by the defendant. The contract being by letter its terms and construction were for the court, and there can be no doubt that it called for all lumber furnished to be of ‘long leaf merchantable hard pine’ of the sizes specified, which words are not only descriptive of what the defendant bought, but constitute a warranty of the kind, quality, and size. Fullam v. Wright & Colton Wire Cloth Co., 196 Mass. 474, 476,8 N. E. 711, and cases cited. It was contended by the defendant who had pleaded in recoupment, that as the material was not of the ‘size and character called for’ he was entitled to damages. But the exceptions unequivocally recite ‘that all the lumber delivered by the plaintiff was accepted by the defendant,’ and from the entire record which includes the pleadings, it appears, that while the last delivery was March 23, 1910, no claim for damages for nonfulfillment ‘down to April 1, 1911, was given * * * other than a notification twice repeated that if the 3x4 material needed for the first floor was not delivered promptly the defendant would buy it in the Boston market.’ It is further stated:
‘That the material could have been bought and supplied in Boston at any time from August 1, 1909, when asked for by the defendant, to November 1, 1909, when it had been accepted from the plaintiff and used by the defendant, and when all the lumber mentioned in the declaration had been delivered to the defendant. * * *’
By section 49 of the Sales Act, St. 1908, c. 237:
[3][4][5] The...
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