Willson v. Vlahos
| Decision Date | 02 March 1929 |
| Citation | 165 N.E. 408,266 Mass. 370 |
| Parties | WILLSON v. VLAHOS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Alonzo R. Weed, Judge.
Action by O. H. Willson against John Vlahos. Findings and rulings adverse to the defendant were made, and he brings exceptions. Exceptions sustained, and judgment entered for defendant.
Where telegram, ordering strawberries, was sent to seller in state of Arkansas for delivery to point in Massachusetts, court rightly found contract was made in Arkansas and was governed by law of that state as regards its interpretation.
Under law of Arkansas, acceptance of goods by buyer is not bar to action for breach of express warranty.
Where strawberries were sold under express warranty that they would be of ‘best stock,’ such warranty related not only to grading, but to quality, since ‘best’ means excellent in quality, and grading of berries as ‘U. S. No. 1’ meant berries not under three-fourths inch in diameter, not overripe nor underripe nor under developed, free from rot and mold or mechanical injuries, with 10 per cent. tolerance as to size and 5 per cent. as to other standards, while ‘Ark. No. 2’ meant merchantable berries not up to such standard containing not over 8 per cent. defects.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Best.,]
Where it was found that strawberries had suffered from preshipment injury due to overheating, there was breach of express warranty that they would be ‘best stock.’
In action on contract to recover purchase price of carload of strawberries, defended on ground of breach of express warranty, defendant held not entitled to recover excess of damages suffered by him by reason of breach over amount due plaintiff for berries.
S. Baker, of Lowell, for plaintiff.
A. S. Howard, of Lowell, for defendant.
This is an action of contract to recover the purchase price of a carload of strawberries. The amended answer contains a general denial, payment, and sets up by way of recoupment that the plaintiff expressly warranted that the strawberries were to be of the best stock, and impliedly warranted that they were in proper condition to stand shipment from Van Buren, Arkansas, to Lowell in this commonwealth, and to be in merchantable condition for resale at Lowell; that there was a breach of both warranties by the plaintiff which the defendant did not discover until after many of the berries had been sold by him, but that upon such discovery he gave the plaintiff opportunity to reclaim them, which was refused to the damage of the defendant. The case was tried before a judge of the superior court without a jury and is before this court upon exceptions taken by the defendant to certain findings and rulings. The findings contain all the evidence material to the issues raised by the bill of exceptions, except two exhibits annexed thereto marked ‘A’ and ‘B.’
The judge made the following findings: The plaintiff sold to the defendant a carload of strawberries, ‘best stock,’ upon the latter's order by telegram, dated March 7, 1927, sent to the plaintiff at Van Buren, Arkansas, in the following form: The berries were delivered to the American Railway Express f. o. b. Van Buren, for shipment to the defendant in Lowell, on the evening of May 8, 1927. The price charged was fair, and the defendant has not paid the plaintiff for the berries. These findings dispose of the issues raised by the general denial and the plea of payment.
[1] The judge further found that ‘the car was not delayed in transit, and that the condition in which the berries were found upon arrival in Lowell was not due to the fault of the carrier.’ He rightly found that the contract was made in Arkansas (Milliken v. Pratt, 125 Mass. 374, 375, 376,28 Am. Rep. 241;Stone v. Old Colony Street Railway, 212 Mass. 459, 462, 463, 99 N. E. 218;Walling v. Cushman, 238 Mass. 62, 65, 130 N. E. 175), and is therefore governed respecting its interpretation by the law of that state (Montreal Cotton & Wool Waste Co., Ltd., v. Fidelity & Deposit Co. of Maryland, 261 Mass. 385, 390, 158 N. E. 795). It was also found that the Uniform Sales Act was not in force in Arkansas at the time of the sale here in question.
[2][3] The question presented is whether in view of the terms of the contract there was an express warranty and, if so, whether there was a breach of it for which the defendant is liable. It is manifest that under the law of Arkansas the acceptance of the goods is not a bar for breach of an express warranty. Keith v. Fowler, 169 Ark. 176, 273 S. W. 706;O'Leary Produce Co. v. Pride, 170 Ark. 516, 280 S. W. 366. In the present case there was an express warranty that the berries were to be ‘best stock.’ The judge ruled,...
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