White's Farm Dairy, Inc. v. De Laval Separator Company

• Decision Date: 16 October 1970
• Docket Number: No. 7530.,7530.
• Citation: 433 F.2d 63
• Parties: WHITE'S FARM DAIRY, INC., Plaintiff, Appellant, v. DE LAVAL SEPARATOR COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

433 F.2d 63 (1970)

WHITE'S FARM DAIRY, INC., Plaintiff, Appellant, v. DE LAVAL SEPARATOR COMPANY, Defendant, Appellee.

No. 7530.

United States Court of Appeals, First Circuit.

October 16, 1970.

Talbot T. Tweedy, Taunton, Mass., with whom Edward A. Roster, was on the brief, for appellant.

Philip Goltz, Fall River, Mass., with whom Horvitz & Horvitz, Fall River, Mass., was on the brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

Plaintiff, White's Farm Dairy, Inc., (White's), the owner and operator of a large dairy farm, brought this diversity action against the defendant, a manufacturer of milking equipment. Plaintiff claims that the defendant breached its warranties in selling defective milking equipment to the plaintiff and also that it was negligent in the manufacture of said equipment.¹ The case was tried to a jury. At the conclusion of plaintiff's evidence, the district court directed a verdict for the defendant on the grounds that no privity had been shown between the parties on the warranty counts; that the plaintiff had failed to prove negligent manufacture; and further, that the negligence count was barred by the statute of limitations. This appeal followed.

"In determining whether or not the evidence in a given case is sufficient to take the case to the jury over a motion for a directed verdict, the evidence must be viewed in the light most favorable to the plaintiff, giving the plaintiff the benefit of every inference favorable to him which may be fairly drawn. It is not for the court to weigh the conflicting evidence or to judge the credibility of witnesses. Whenever the evidence is such that fair-minded men may draw different inferences therefrom, and reasonably disagree as to what the verdict should be, the matter is one for the jury." M. C. Carlisle & Co. v. Cross, 386 F.2d 672, 674-675 (1st Cir. 1967).

With this in mind we shall review and summarize the evidence.

In 1964 the plaintiff corporation, which operated several dairy farms in Acushnet, Massachusetts, and nearby towns, decided to consolidate its operations into one central farm. Among other things, plans and specifications were prepared for a double milking parlor, so-called, at the central farm where the cows would be led twice a day to be milked by machine. In the summer of that year plaintiff wrote to several manufacturers of milking equipment, among them the defendant, enclosing specifications for the equipment required and requesting bids. The defendant replied that it was referring the request to its sales representative, one Vaughan "who will place it in the hands of the nearest De Laval dealer and guide him in working up a complete quotation." Vaughan lost no time in visiting James White, plaintiff's vice president.²

James reviewed the plans for the new farm with Vaughan. A week later, Vaughan sent him a letter listing "some of our De Laval users that might be of some help in planning your new milking system."³ Vaughan also visited the farm at least once a month for the next five months to talk to the Whites about the new equipment to be purchased. In November, Cliff Brown, president, treasurer and manager of the Ben Brown Co., a De Laval dealer, went to the White farm with Vaughan. James White testified that he had never met Brown before nor had plaintiff ever done business with Brown's company. This was corroborated by his father, Raymond, and by Brown himself. Brown testified that he visited the farm about six times before he signed the contract. Sometime in December 1964 the Whites and Vaughan agreed on the equipment to be purchased and the price to be paid.

After some discussion, Vaughan suggested three dealers, including the Ben Brown Co., through whom this equipment could be obtained but stated that the plaintiff should buy from Brown as this was the bigger concern and "was the only one who was going to be in business for any length of time and could give us better service." In addition, Vaughan also told Raymond White "that if I went along with Mr. Brown we could get a 15 per cent discount" on the new equipment.

The contract was signed between Brown and plaintiff on January 18, 1965. Plaintiff arranged for payment to Brown by a series of notes. Vaughan was not present at the signing, but Brown told Raymond White that "he had talked to Mr. Vaughan and he had everything worked out; that Mr. Vaughan had furnished him with a layout and lists of material and figured out the price and they had agreed on a 15 per cent discount, and everything was all agreed." Raymond White testified that he had not discussed the discount with Brown at all, but only with Vaughan and that this was in the first part of January, about two weeks before he talked to Brown. Raymond also testified that when he and Brown signed the contract, there was no discussion about the discount or the equipment being sold, because all the terms had been prepared and agreed upon ahead of time by White's and Vaughan. There was evidently discussion between Vaughan and Brown about which De Laval dealer would "do the job the way De Laval wanted it done." Brown testified that Vaughan thought Brown "should give them White's a 15 per cent discount in order to get the job." As part of the inducement to Brown to take the job, Vaughan agreed to supervise and help with the installation.⁴ As early as November 14, 1964, Vaughan had advised James White by letter that "everything will be done under direct factory supervision."

The Whites consistently denied that they knew that they were dealing with Brown as an entity independent from De Laval. James White testified that Brown became the seller because "he was brought in by De Laval Company." He also said that Brown was "just an in-between man. He didn't dare open his mouth."

In January 1965 before plaintiff bought the equipment, Raymond White arranged with Vaughan, not Brown, as to the time for its installation. Except for the smaller items, all of the equipment was delivered directly by De Laval. It was installed by Vaughan, another of De Laval's men named Meagher, Brown, and two of Brown's employees. When it was ready, Vaughan held a class for White's employees on the operation of the new equipment. Milking with the new equipment began during the first week of April 1965. But from the start, something was wrong. The cows were uneasy and nervous when the new equipment was used on them. The Whites immediately complained, mostly to Vaughan. Vaughan stayed three days at the farm. He suggested that White's men and animals were unfamiliar with the new equipment and had to get used to it. But milk production declined rapidly, and there was abundant evidence that the cows had contracted mastitis.

De Laval sent several experts to the farm to try and discover the cause of the trouble. From the very first day the new equipment was used the Whites complained continuously to Vaughan and even the complaints they occasionally made to Brown were referred to Vaughan or Meagher. There was evidence that between April and the first of May 1965, James White complained to Vaughan and Meagher possibly eight or ten times and from April 1 through August 1965 he complained to De Laval directly "probably 30" times. James White testified that complaints were made to Vaughan because "this is the man I did business with, Joe Vaughan."

In Massachusetts it is well settled that lack of privity is an absolute defense to an action for breach of warranty. Haley v. Allied Chemical Corp., 353 Mass. 325, 331, 231 N.E.2d 549, 553 (1967). But on the above facts, we think the jury could have reasonably found that Brown was acting as the agent for De Laval and that there was in fact privity between White's and De Laval even though Brown was the actual signatory of the contract.

Initially, defendant argues that the agency theory was neither pleaded nor proved in the district court. It is true that it was not pleaded. However, the general rule is that in actions against a principal, there is no necessity of pleading that the agreement was...