
    Sunny Brook Pressed Concrete Company v. Roofblok LTD et al.
    Superior Court, Worcester, SS
    No. 20031305
    Memorandum Dated December 29, 2010
   Agnes, Peter W., J.

1. This case is before the Court following the plaintiff, Sunny Brook Pressed Concrete Company’s successful appeal to the Appeals Court after a jury-waived trial before this Court. Following the trial of two of the counts of the plaintiffs complaint, this court ruled in the defendant’s favor on count one (suit on a foreign judgment) and dismissed the remainder of the action. On appeal, the Appeals Court held that it was error for this court to have dismissed Count two of the complaint without making findings and rulings.

2. The plaintiffs lawsuit arose out of a contract it entered into in Massachusetts with the defendant, Roofblok Ltd. for the sale of a hydraulic press machine. The terms of the sale contemplated the delivery of the machine from Massachusetts to Ohio. The agreed price was $55,000 F.O.B. Massachusetts. The machine was destroyed when it fell as it was being loaded onto a truck in Massachusetts.

3. Based on the credible evidence presented at the trial, I find that the plaintiff paid the money by delivering a check to the defendant. See exhibit 1 (bill of sale) and exhibit 2 (plaintiffs check) and exhibit 3 (certified bank check). The defendant acknowledged receipt of the check and full payment of the purchase price. The plaintiff complied with the defendant’s request to make arrangements for a truck to be at the defendant’s place of business to transport the machine to Ohio. The defendant hired a crane to load the machine onto the plaintiffs truck. The machine fell and was destroyed before it was loaded onto the plaintiffs truck.

4. Based on the above findings of fact, the plaintiff is entitled to judgment in the amount of $55,000 plus interest and costs on Count two. See Industria de Calcados Martini v. Maxwell Shoe, 36 Mass.App.Ct. 268, 274 n.2 (1994) (G.L.c. 106, §2-319(1), provides: “Unless otherwise agreed the term F.O.B. (which means ‘free on board’) at a named place, even though used only in connection with the stated price, is a delivery term under which (a) when the term is F.O.B. the place of shipment, the seller must at that place ship the goods in the manner provided in this Article .. . and bear the expense and risk of putting them into the possession of the carrier . . .”).

ORDER

For the above reasons, judgment shall enter for the Plaintiff on Count Two in the amount of $55,000.  