Boston Consolidated Gas Co. v. Folsom

Crosby, J. The first action is in contract. Under the first and second counts the plaintiff seeks to recover a balance of $275 for the installation of a gas fired boiler, and the third and fourth counts allege that the defendant owes the plaintiff for gas furnished to him. The second action is in tort, in which, in substance, the plaintiff alleges that he was induced to enter into a contract for the installation of the boiler by reason of the representation made to him by the defendant’s agent that the cost of heating his house therewith would be reasonable; that he relied on this representation, and that it was false. The cases were tried together and at the close of the evidence the judge ordered a verdict for the defendant in the second action. In the first action the defendant offered evidence of conversations had between himself and the plaintiff’s agent and certain letters written by the parties respecting representations made by the plaintiff before the written agreement was signed. This evidence was rightly excluded. The written agreement shows on its face that it is complete and unambiguous. It cannot be varied or controlled by paroi evidence. It merged all previous negotiations and stipulations whether oral or written, and cannot be altered by an earlier or contemporaneous warranty respecting the cost of operation of the boiler, as the defendant contends. Frost v. Blanchard, 97 Mass. 155. Neale v. American Electric Vehicle Co. 186 Mass. 303, 308. No express warranty appears in the contract, and none can be imported into it by implication, by the introduction of paroi evidence; accordingly the exceptions to the judge’s charge cannot be sustained. Lamb v. Crafts, 12 Met. 353, 355. Will M. Kinnard Co. v. Cutter Tower Co. 159 Mass. 391, 393. Neale v. American Electric Vehicle Co. supra. Glackin v. Bennett, 226 Mass. 316. If a warranty such as the defendant claims were intended it should have been inserted in the contract. The evidence shows that the defendant obtained exactly what he contracted for, namely, a gas fired steam boiler, installed and equipped as the contract provided. There was no stipulation in the agreement that it could be operated economically, or would furnish any definite amount of heat, or that it could be operated for a fixed sum. Nor was there an implied warranty that it was fitted and suitable for the purpose for which it was installed. There was no evidence to show [568] that the defendant was induced to enter into the agreement by any false representations of the plaintiff or its servants or agents; the representations relied on by the defendant at most were only expressions of opinion, judgment or estimate, upon which he cannot rely as a ground for rescission of the contract. Hedden v. Griffin, 136 Mass. 229, 231. Kimball v. Bangs, 144 Mass. 321, 324. Dawe v. Morris, 149 Mass. 188. Harvey v. Squire, 217 Mass. 411, 415. If it be assumed in favor of the defendant but without so deciding that under any circumstances the sales act, St. 1908, c. 237, could be held to apply to the contract in question, it nevertheless was for the sale of “a four section Kane gas fired steam boiler” and hence was a sale of a specified article under its patent or other trade name. As to such a sale under § 15, cl. 4 of the act, there is no implied warranty as to its fitness for any particular purpose. See Ward v. Great Atlantic & Pacific Tea Co. 231 Mass. 90, at page 95. The cases where under § 15 of the act a warranty may be implied as to the quality or fitness for a particular purpose of goods sold, do not apply to a contract like that in question. Those cited by the defendant in this connection are not relevant to the facts in the case at bar. See Farrell v. Manhattan Market Co. 198 Mass. 271; Friend v. Childs Dining Hall Co. 231 Mass. 65. The exceptions to the exclusion of the conversations between the plaintiff’s agent and the defendant, which occurred before the contract was signed, for reasons previously stated must be overruled. The agreement between the parties for installation of the boiler was in writing, and in it the company agreed to furnish, deliver and install the boiler on the premises of the plaintiff in the second action and to do other work in connection therewith. The plaintiff in the second action testified that before the contract was signed the defendant’s agent told him in substance that the boiler would not cost much, if any, more to maintain than he (the plaintiff) had been previously paying for heating his house; that the agent stated “that he was pretty confident that it could be done for about the same” cost as the plaintiff had previously paid; and that other similar statements were made by the agent. There was evidence that the cost of maintaining the . boiler was much in excess of the amount previously paid for the purpose by the plaintiff. It is plain that the statements so made, if untrue, were [569] not representations of material facts, but were merely matters of opinion, judgment or estimate, and will not sustain an action of tort. Parker v. Moulton, 114 Mass. 99. Hedden v. Griffin, supra. Kimball v. Bangs, supra. Brown v. C. A. Pierce & Co. Inc. 229 Mass. 44, 46. Lynch v. Palmer, ante, 150. The exception to the exclusion of evidence as to the price paid by the defendant Folsom for a new boiler after the one in question had been removed is overruled; the evidence was immaterial upon any issue involved. The letters, exhibits 11, 16, 17, 18, 19 and 21, being correspondence between the parties, were all written after the contract was made and the boiler was installed, and cannot affect the rights of the parties; they were properly excluded. The defendant Folsom presented fourteen requests for rulings and instructions; the first, that the company is not entitled to recover, ought not to have been given; the second, that the plaintiff in the second action is entitled to recover, was rightly denied for reasons before stated, and as the court properly directed a verdict for the defendant in that action, all other requests relating to it have become immaterial. The remaining requests need not be considered in detail; so far as not covered by the instructions, they were rightly refused. We perceive no error of law in the conduct of the trial. Exceptions overruled.