Spector v. Zuckerman

Piebce, J. This case is before us on appeal from a final decision, report dismissed, of the Appellate Division of the Northern District. The report of the trial judge to the Appellate Division discloses in substance the following facts: On October 30, 1926, the plaintiff and defendant entered into a written conditional contract of sale, dated November 15, 1926, whereby the plaintiff agreed to sell and the defendant agreed to buy a dining room set of furniture, consisting of twelve pieces. On or about November 17, 1926, the plaintiff delivered to the defendant’s home the set of furniture, with the exception that six chairs were delivered instead of five chairs and one armchair. On the same day the defendant’s wife communicated with the plaintiff’s agent in reference to the armchair, and was told by the agent that he would take care of it at once. About a week later there was talk over the telephone between the parties about some scratches on [171] the furniture and the plaintiff sent to the defendant’s home a finisher who “polished out the scratches.” In about a week the plaintiff was informed by the defendant that the table leaves were not delivered; the plaintiff then offered to deliver the armchair and the table leaves and the defendant refused to receive them. The plaintiff’s agents called several times upon the defendant and reported that the defendant’s claim was unjust and unreasonable and that there was nothing wrong with the set; and the plaintiff himself saw the defendant and offered to exchange the chair for an armchair and to deliver the extra leaves for the table, but the defendant refused to accept this offer. The plaintiff on various occasions offered to replace the entire set with another new set, and the defendant through his wife promised to come in and pick out another set. On May 12,1927, the plaintiff wrote the defendant a letter giving notice of his intention to deliver the armchair and table leaves, and the defendant replied by letter that he would not accept the said articles. The contract, which is annexed to the declaration, discloses that the articles were sold “for the lump sum of $365.00” of which $25 was paid at the time of the sale and the balance was to be paid at the rate of $4 each week. The second count of the declaration seeks to recover unpaid instalments in the amount of $100. At the close of the trial the defendant made eleven requests for rulings. The trial judge granted those numbered 2, 8, 9, 10 and 11 “as propositions of law but not applicable to the finding of facts in this case,” denied request numbered 1, and those numbered 3, 4, 5, 6 and 7 “as not applicable to the facts found.” He denied the answer in recoupment, and found for the plaintiff in the sum of $100. Requests numbered 2, 8, 9,10 and 11, allowed by the trial judge as true propositions of law, are taken almost verbatim from G. L. c. 106, §§ 30, 36 and 39. His further finding that they are not applicable to the finding of facts can be sustained on the assumption, warranted by the reported facts, that he found that the defendant retained the goods delivered knowing that the plaintiff would perform the con [172] tract by exchanging the extra chair for an armchair and by delivering the extra leaves for the table. Requests numbered 1, 3, 4, 5, 6 and 7 were refused because not applicable to the facts found. This finding is supported if the trial judge found, as he warrantably could do on the reported facts, that the defendant did not reject the goods delivered within a reasonable time after delivery either on the ground that the quantity was less than the entire lot the plaintiff had contracted to sell or on the ground that the plaintiff was not ready and willing to deliver the chair and table leaves within a reasonable time after he had notice of the deficiencies in the lot actually delivered. We find no reversible error in the findings and rulings of the trial judge. It results that the entry must be “Report dismissed” affirmed.