
    No. 150429
    Municipal Suffolk, ss.
    CALABRO v. COTTAGE GARDENS, INC.
    (Edward E. Cohen)
    (Joseph Graglia)
    From the Municipal Court of Boston Keniston, J.
    Argued October 27, 1941
    Opinion Filed December 13, 1941
   PUTNAM, C.J. (Riley, 6? Tomasello, JJ.)

This action is to recover the purchase price of a 'beer-cooling unit. The contract contained an express warranty in the following words: “We guarantee 190-12 (meaning 12 ounce) glasses out of a Good full B. (meaning barrel) of Beer or Ale." The answer "consists only of a general denial and an allegation that there was a breach of the above warranty.

Without objection the plaintiff called as a witness a cafe proprietor who testified that he had one of the plaintiff’s beer-cooling units in his cafe and that in the course of several tests of it (during the eight months in which he had had it) it delivered 190 twelve-ounce glasses of beer from a 'barrel, and once delivered 199 such glasses. The issue of the inherent ability of the plaintiff’s unit having been thus opened, the defendant’s president testified that after the contract was executed he, and the plaintiff, and one Friedman (who was apparently the president of a corporation which either sold or manufactured these cooling units) went to the seller’s place of business, where there was a demonstrating unit. The report recites that “There was evidence that the demonstrating unit in so far as its ability to deliver beer was the same as that ordered by the defendant.” The witness further testified that he and the plaintiff and Friedman were able to get no more than 174 glasses to the barrel out of it; that the plaintiff and Friedman said there was something wrong with the system and to try again; that a few days later they did try again, and again got only 174 glasses; and that he then said he would not take the unit he had contracted for and refused to allow it to be installed in his place of business.

It would seem that if the plaintiff had not opened up the general issue of the inherent ability of his machine to produce 190 glasses of beer from a full barrel it would not have been open to the defendant to introduce evidence as to the failure of the demonstrating unit to produce that number. Vale v. Butler, 111 Mass. 55. Such evidence is only admissible where the defendant’s answer raises an issue of fraud. Water’s Patent Heater Co. v. Smith, 120 Mass. 444, and in the case at bar the answer raised no such issue. But in the case at bar the plaintiff chose to open up and try the general issue of the inherent ability of his invention to produce 190 glasses of beer. He did not try to limit the trial to the specific unit ordered by, and tendered to, the defendant. He chose his own issue, which was one not raised by the pleadings. The defendant made no objection and that issue was tried. The defendant succeeded in satisfying the judge that the plaintiff’s cooling unit was inherently incapable of delivering 190 glasses from a full barrel. If the parties chose, without objection, to try that issue, the plaintiff cannot now complain. The judge found as a fact that the demonstrating unit was the same as.that ordered by the defendant, and that it failed to comply with the guarantee. These findings, and his general finding for the defendant, are, in our opinion, the equivalent of a finding “that this failure in the operation of the mechanism was not caused by any defect or negligence in the setting or operating, and was not merely accidental or of occasional recurrence, but that it was the necessary and inevitable result of the construction of the mechanism itself." Water’s Patent Heater Co. v. Smith, supra. He was not bound to believe the plaintiff’s testimony about carbon dioxide gas in beer, nor the testimony of Marone that his unit produced 190 glasses and that one man can get more glasses from one barrel than another man.

The case, as it was tried, falls fairly within the principle of Water's Patent Heater Co. v. Smith, supra.

Report dismissed.  