
    
      Municipal Court of the City of Boston
    
    No. 309760
    ALEXANDER ASCH AND HENRY HOCKBERGER v. ALEC SLESINGER
    (July 23, 1951)
   BARRON, J.

(ADLOW, J. concurring) This is an action of contract in which the plaintiffs, co-partners, seek to recover the purchase price of $2,141.65, plus $201.90 shipping charges paid to the defendant under an agreement to sell to the plaintiffs 6,119 pairs of Ladies Assorted Leatherbury Shoes. Count 2 is for $2,343.55, money received by the defendant to the plaintiffs’ use, according to an account annexed, as herein recited. The answer was a general denial, payment and failure to give notice of breach of warranty. The court found for the plaintiffs in the sum of $348.60.

There was evidence tending to show that, on "or about January 6, 1950, the plaintiffs came to Boston to purchase ladies’ shoes and went to the defendant’s place of business. One of the plaintiffs testified that he told the defendant that they wished to buy ladies shoes; that the defendant told the plaintiffs that he had just purchased the complete stock of the Leather-bury Shoe Stores in Florida, which consisted of 6,119 pairs of Ladies Assorted Leatherbury Shoes; that he offered to sell these shoes to the plaintiffs for $.35 a pair; that if the plaintiffs wanted to get them at that price, they would have to act immediately; that defendant gave the plaintiffs a pamphlet of the Leatherbury Shoe Company, showing Ladies Leath-erbury Shoes, (which pamphlet is an exhibit and part of the report) and stated the shoes were the same as those located in Miami; that the plaintiffs told the defendant they would like to buy the ladies’ shoes, but would have to wait until the following day to see if they could find a purchaser for them, but would communicate their decision to the defendant the following day.

The plaintiffs then returned to New York, procured a buyer for 6,000 pairs of Ladies Assorted Leatherbury Shoes and on January 7, 1950, sent the following telegram to the defendant:

“A. S. Shoe Company, 203 Essex Street, Boston, Mass.
Have sold 6,000 pairs shoes as shown upon pamphlet. Will be Boston Tuesday. A. & H. Shoe Company, 1305 Franklin Avenue, Bronx, New York.”

The plaintiff, Hockberger, further testified that on January 12, 1950, the plaintiffs came to Boston, paid to the defendant $1000. as a deposit against the purchase price, the balance to be paid cash on delivery. The defendant, however on January 16th drew a sight draft for the balance upon the plaintiffs in the sum of $1,141.65 which was paid in full upon demand by the plaintiffs’ check on January 27, 1950. On January 18, 1950, the defendant sent the following invoice to the plaintiffs:

“A. S. Shoe Company, 203 Essex Street, Boston 11, Mass., Inv. No. 4896
t January 18, 1950
Sold to: A. & H. Shoe Company
1305 Franklin Avenue, Bronx; New York
F.O.B. Boston Via Dept. No. Order No. Terms
Case No. Stock No. Pairs Description Price Amount Total
6,119 Ladies Assorted Leatherbury Shoes, retail stock of Beth Shoe Store, Miami, Florida, as is.
.35 2,141.65
Deposit 1,000.00
SHIPPED C.O-D. BALANCE 1,141.65

The shoes were received by the plaintiffs and the plaintiffs paid the further sum of $201.90 for freight charges.

The shoes arrived at the plaintiffs’ place of business on February 3, 1950 and were shipped unopened to the plaintiffs’ purchaser. On February 6, 1950, the goods were returned to the plaintiffs..

The plaintiffs further testified that on February 7, the plaintiffs came to Boston and told the defendant that he had broken his agreement with them; that of the 6,119 pairs of shoes, there were sandals, and 996 pairs of children’s shoes and beach sandals; and that the shoes were not Ladies Assorted Leatherbury Shoes as represented and as set forth in the invoice and demanded that the defendant take the shoes back and refund the purchase price. The defendant thereupon told the plaintiffs to go ahead and sue for their money. By letter to the defendant dated February 9, 1950, the plaintiffs elected to rescind their contract with the defendant and made a demand for the return of the purchase price.

The defendant testified that he told the plaintiffs at the trial of the first visit that he had bought out three Leatherbury Stores in Florida, and that he did not know what was there; that there were between 5,000 and 6,000 pairs of Ladies’ shoes and that the sizes were bad and that he had an inventory; that he showed the inventory sheets to the plaintiff, Hock-berger, and explained that these were the sizes and the stock; that the plaintiff, Hockberger, picked up a pamphlet and the defendant stated that it did not represent the shoes; that Hockberger stated he wished to have the pamphlet to take to New York to show to customers; that the defendant then offered to sell the shoes at $.35 a pair.

He also testified that he did not know that there were children’s shoes in the lot which were shipped and that upon receiving notice that there were he offered to pay back the money on the children’s shoes; that other than 996 pairs of children’s shoes delivered to the plaintiffs the balance of the shoes were Ladies Assorted Leatherbury Shoes.

The plaintiff filed requests for rulings. The court made the following dispositions for certain of these requests:

1. On all the evidence judgment should be for the plaintiff because:

(a) The shoes shipped by the defendant failed to conform to the description and sample on the basis of which the plaintiff ordered the shoes.

(b) The shoes did not comply with the defendant’s warranty that they were "Ladies Leatherbury Shoes.” Denied.

2. Where goods are ordered by sample and/or description, if the goods fail to conform to the sample or description, the buyer may rescind .the sale and secure a refund of the entire purchase price. Granted. I find on the facts, however, that no specified number of ladies’ shoes were agreed upon to be delivered and that other than 996 children’s shoes which were sent by mistake and upon which defendant was ready at all times to refund payment, the bulk of the shipment, to wit: 5123 ladies shoes conformed to the samples and description.

3. Where the seller makes descriptive statements concerning the merchandise ordered, such statements constitute a warranty. Granted.

4. If the defendant described the above shoes to the plaintiff as Leatherbury Ladies Shoes, he is liable to the plaintiff for breach of warranty if the shoes delivered were not ladies shoes or were not Leatherbury shoes. Denied. Inapplicable.

The plaintiffs claim to be aggrieved by:

1. The denial of the requests for rulings of 1 and 4 and to the judge’s rulings and findings modifying Request 2.

2. The judge’s ruling that no specified number of ladies’ shoes was agreed upon.

3. The denial of the judge to grant recission.

4. The failure of the judge to award the plaintiffs adequate damages.

5. The judge’s finding that the 996 children’s shoes were sent the plaintiffs by mistake.

The court’s finding of fact that in the shipment of shoes which the defendant sent to the plaintiffs, were 996 children’s shoes, which were sent by mistake, conclusively indicates that under the agreement between the plaintiff and the defendant no children’s shoes were ordered by the planitiff; and therefore the shipment of shoes “failed to conform to the description on the basis of which the plaintiffs ordered the shoes, and did not comply with the defendant’s warranty that they were ‘Ladies’ shoes.’ See request No. 1.

An examination of the inventory (Exhibit 8) fails to show as the correct number of pairs of shoes agreed to, either 996 pairs of children’s shoes, (although some children’s shoes are indicated), or the number of 5,123 ladies’ shoes, which were shipped in the same lot as the 996 pairs or children’s shoes; or 6,119 pairs of shoes, as shown on the invoice sent by the defendant. The defendant testified that the inventory showed the sizes and stock. If the agreement was, as the defendant alleges, to sell what he got under the inventory, then there was a violation of the agreement by the defendant, because the shipment did not correspond to the inventory, and the plaintiff would be entitled to rescission. But since the court found that no children’s shoes were ordered, and the inventory includes children’s shoes, it is obvious that the trial justice did not find that the agreement to buy was according to inventory.

What was the agreement then? It can be ascertained from the invoice which the defendant prepared and which shows clearly the sale of 6,119 pairs of ladies shoes at a specified price of 35c each, and from the sight draft which was drawn at the direction of the defendant which also calls for payment of 6,119 pairs of shoes as per invoice. If this was the agreement, then there was a breach of waranty committed by the defendant, since only 5,123 pairs of ladies shoes were delivered, and the plaintiffs are entitled to rescission and a return of the money advanced by them.

In the case of a breach of warranty, the buyer has the right to “rescind the contract to sell or the sale and refuse to receive the goods, or if they have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid.” G. L. c. 106, § 58 (1) (d); Boles v. Merrill, 173 Mass. 491, 494-5. If on the other hand it is agreed that only 5,123 pairs of ladies shoes were to be delivered then the defendant has committed a breach by delivering to the plaintiffs a shipment which contained children’s shoes as well as ladies shoes.

“If the . seller delivers to the buyer the goods which he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest or he may reject the whole.” G. L. c. 106, § 33 (3).

Under the Sales Act a buyer is not obliged to correct a seller’s mistake and only partially rescind a contract. He is entitled to complete rescission, if the seller errs in making up the shipment either in amount or type or merchandise.

The defendant has argued that there can be no rescission because the plaintiff resold the merchandise. Although this is generally true, there is an exception “if the buyer has taken the goods back from the sub-purchaser and offers them uninjured to the seller, rescission seems permissible.” 1 Williston Sales Rev. Ed. § 610 n. 16. Norry v. Electric Arc Ind. 185 NJL. In the opinion of the majority, there is error. Let a finding be made for the plaintiff on count 2 of plaintiffs’ declaration in the amount of $2,343.55.

* * *

KENISTON, C. J.

dissenting. I cannot concur in the conclusion reached by the majority. A large part of the evidence as set forth in the report, as well as in the statement of evidence in the majority opinion, is made up of the plaintiff’s testimony, much of which may have been disbelieved and discredited by the trial judge. Lindenbaum v. N.Y. & H. RR., 197 Mass. 314, 323; Perry v. Hanover, 314 Mass. 167, 170.

From the evidence most favorable to the defendant, it seems to me, the trial judge could have found the following facts: The plaintiff, Hockberger, came to Boston, on or about January 6, 1950, and went to the place of business of the defendant seeking to buy ladies’ shoes. The defendant, Slesinger, told the plaintiff that the defendant had bought out three Leatherbury stores in Florida; that he did not know what was there; that there were between 5,000 and 6,000 pairs of ladies’ shoes; that the sizes were bad; that he had an inventory; that he showed the inventory sheets to Hockberger and explained that these were the sizes and the stock; that the inventory sheets showed some children’s shoes; that the plaintiff, Hock-berger, picked up a pamphlet, which was introduced in evidence, and the defendant stated that it did not represent the shoes; that Hockberger stated that he wished to have the pamphlet to take to New York to show to customers, and that the defendant offered to sell the shoes at 35 cents a pair.

The plaintiff, Hockberger, returned to New York, and on January 7, 1950 sent a telegram to the defendant as follows:

“Have sold 6,000 pairs of shoes as shown upon pamphlet. Will be in Boston Tuesday.”

The plaintiff, Hockberger, came to Boston on January 12, 1950, and paid the defendants $1,000. as a deposit. It does not appear from the report what order the plaintiff gave to the defendants. The defendants on January 16 drew a sight draft upon the Little River Bank & Trust Co., of Miami, Florida, in the sum of $1641.65, which the plaintiffs paid in full January 27, 1950. On January 18, 1950, the defendant sent a bill of lading to the plaintiffs, the substance of which was:- “January 18, 1950 - 6119 Ladies’ Assorted Leatherbury Shoes, retail stock of Beth Shoe Store, Miami, Florida, as is

35c ' $2141.00
Deposit 1000.00 1141.65”

The shoes arrived at the. plaintiff’s place of business February 3, 1950. February 9, 1950, the plaintiff wrote the defendant as follows:

“A substantial part of the shipment of 6,119 pairs of shoes sold by you to us and billed on your invoice number 4896 are children’s shoes, not ladies’ shoes, as required by our contract.
By reason of the foregoing breach of warranty, we hereby elect to rescind the sale of all the aforesaid shoes.
We are holding the entire shipment for return to you, and we hereby offer to return the entire shipment to you upon your repayment to us of the purchase price.”

The defendant did not know that there were children’s shoes in the lot which were shipped, and upon receiving notice that there were offered to pay back the money on the children’s shoes.

The defendant had made an inspection of 15 or 20 pairs of shoes in Miami and he saw children’s sandals and ladies’ sandals. Other than 996 pairs of children’s shoes delivered to the plaintiffs, the balance of the shoes were ladies’ assorted Leatherbury shoes.

The only questions raised by this report are the rulings of law made upon the requests of the plaintiffs and reported by the trial judge to the Appellate Division. G. L., c. 231, § 108; Carando v. Springfield Cold Storage Co., Inc., 307 Mass. 99, 101; Adamaitis v. Metropolitan Life Ins. Co., 295 Mass. 215, 221; Bresnick v. Heath, 292 Mass. 293, 296; Reid v. Doherty, 273 Mass. 388.

There was no error in denying the first request because the specifications therein did not require a ruling that on all the evidence the plaintiff was entitled to recover.0 These specifications were only-two of several elements necessary for the plaintiff to recover. The requested ruling was a single ruling with the reasons therefor specified, but all that was required of the trial judge was to deal with the request as a unit. The reasons specified did not require the granting of the request.

See Rule 26, Boston Municipal Court. Ryerson v. Fall River Philanthropic Burial Society, 315 Mass. 244, 245-6; Memishian v. Phipps, 311 Mass. 521; Holton v. American Pastry Products Corp., 274 Mass. 268, 270-1. Morever, each of the specifications were findings of fact, which the trial judge was not required to make as a ruling of law. Furthermore, the court did find for the plaintiffs.

Request number two was granted. The plaintiff is not aggrieved by the granting of his own request. Korb v. Albany Carpet Cleaning Co., 301 Mass. 317 318; Baker v. Davis, 299 Mass. 345, 348; Woodman v. Haynes, 289 Mass. 114, 118. In granting this request the court made the following specific findings of facts which were not rulings of law. The plaintiff is not aggrieved by findings of facts. The evidence did not require contrary findings. If the plaintiffs wished to raise the question that the evidence did not warrant such findings of fact, they should have filed a proper request to that effect, Carando v. Springfield Cold Storage Co., Inc., 307 Mass. 99, 101; Baker v. Davis, 299 Mass. 345, 348; Reid v. Doherty, 273 Mass. 388, 389. Inapplicable.”

There was no error in denying request number 4 as inapplicable in view of the special findings of fact made in connection with the ruling on request 2.

Plaintiffs claim to be aggrieved by “2. The judge’s ruling that no specified number of ladies’ shoes was agreed upon.”

The trial judge made no such ruling. It was a finding of fact. As previously stated, if the plaintiffs wished to raise the question that the evidence did not warrant such a finding they should have filed proper requests to that effect.

The plaintiffs claim also to be aggrieved by “3. The denial of the judge to grant rescission.” As previously stated, the only questions raised by this report are the rulings of law made upon requests of the plaintiff. No such request was filed.

The same comment is applicable to the grievance “4. The failure of the judge to award the plaintiffs adequate damages.” There was no request filed touching the question of damages.

The last grievance claimed by the plaintiffs — "5. The judge's finding that the 996 children’s shoes were sent the plaintiffs by mistake” ■— is a finding of fact. The plaintiffs are not aggrieved by findings of fact unless they involve a ruling of law. This finding of fact did not involve a ruling of law. There was evidence to support such a finding. Godfrey v. Caswell, 321 Mass. 161, 163; James B. Rendle Co. v. Conley & Daggett, Inc., 313 Mass. 712; Perry v. Hanover, 314 Mass. 167, 169; Ryerson v. Fall River Philanthropic Burial Soc., 315 Mass. 244, 245.

The majority opinion does not consider the questions presented by the report, that is whether there was prejudicial error in the rulings of law made by the trial judge on the plaintiffs’ requests. Instead it attempts to review the evidence at large and comes to a different conclusion from the trial judge. No such authority is conferred upon the Appellate Division. G.L. c. 231, § 108; Loanes v. Gast, 216 Mass. 197, 199; Railway Express Agency v. Michaelson, 311 Mass. 704, 709.

The opinion seems to adopt the court’s finding of fact that there were 996 children’s shoes sent by mistake, and comes to the conclusion that this indicates a different agreement than the court has found and goes on to determine what that contract was. This goes far beyond the powers conferred upon the Appellate Division by G. L., c. 231, § 108.

If there was any inconsistency in the court’s rulings or special findings of fact with its general finding, such question is not raised by this report. It should have been raised either by a motion to correct the error or by a motion for a new trial, with proper requests. Duralith Corp. v. Leonard, 274 Mass. 397, 401; Di Lorenzo v. Atlantic Nat’l Bank, 278 Mass. 321, 323-324; Caton v. Winslow Bros. & Smith Co., 309 Mass. 150, 154; Biggs v. Densmore, 323 Mass. 106, 108, 109 and cases cited; Langdoc v. Gevaert Co. of America, 315 Mass. 8, 12 and cases cited. Nor was it within the power of the Appellate Division to make a finding for the plaintiff in the amount of $2343.55. The evidence did not compel s,uch a finding as a matter of law. Hoffman v. Chelsea, 315 Mass. 54, 55-56. If there has been prejudicial error in the court’s ruling on the plaintiffs’ requests, the Appellate Division "may reverse, vacate or modify the same or order a new trial in whole or in part; otherwise it shall dismiss the report.” G. L. c. 231, § 108. Power to reverse a ruling of a lower court does not mean power to enter a judgment which the Appellate Division decides ought to be entered. Loanes v. Cast, 216 Mass. 197, 199.

Thomas D. Burns, Attorneys for Plaintiff.

Guterman & Guterman, Attorneys for Defendant.

It is my opinion that there was no prejudicial error in the court’s rulings on the plaintiffs’ requests, and that the report should be dismissed.  