
    Kevin O. O’Keeffe vs. Superior Carpet, Inc. and another
    
    Municipal Court
    June 5, 1987.
    Present: Donovan, P.J., OToole & Hershfang, JJ.
    R. Alan Fryer for the plaintiff.
    David W. Walsh for the defendants.
    
      
       Paul Santacroce.
    
   O’Toole, J.

What we have here is a failure to communicate. In the circumstances, the failure was serious enough that we conclude as a matter of law that it was an unfair commercial act or practice within the meaning of the Consumer Protection Act, G.L. c. 93A.

The plaintiff, Kevin O’Keeffe, delivered two Oriental rugs to the corporate defendant, Superior Carpet, Inc. (“Superior”), for cleaning and storage. After several years had passed, O’Keeffe asked for the return of the rugs from storage. The individual defendant, Paul Santacroce, was then in charge of Superior’s business. One of the rugs was returned after a short delay; the other could not be found. Eventually O’Keeffe brought suit for the damages caused by the defendants’ inability to return the second rug. He also sought redress for what he perceived as the undue delay by the defendants in attending to his claim. His Complaint was framed in three counts, alleging respectively violation of Chapter 93A, the common law tort of conversion, and breach of the contract of bailment. The defendants’ Answer amounted to a general denial. After trial, the judge found for the plaintiff on the contract count only and awarded damages in the sum of four thousand dollars plus interest from the date of breach, which he determined to have been February 9, 1983. The judge found for the defendants on the other two counts. Both sides have appealed various rulings by the trialjudge. The defendants have also appealed the allowance of a motion to amend the Complaint.

The trial judge made extensive findings of fact, which are annexed as Appendix A to this opinion. Reference will be made to the facts as necessary to the discussion of the issues presented.

I. The Plaintiff's Appeal

A. Violation if Chapter 93A by Failing to Communicate The principal issue presented by the plaintiffs appeal is whether the judge correctly ruled that the facts found by him did not make out a violation of Chapter 93A. The plaintiff had requested that the judge rule as follows:

“8. The defendants’ conduct toward O’Keeffe when O’Keeffe attempted to recover Rug 1 (the missing rug) was an unfair or deceptive act or practice in violation of c. 93A, § § 2 and 9.”

The judge’s ruling upon this request was, “Denied. See findings.”

In his Findings (a copy of which was appended to the Report), the judge addressed in some detail the question whether the defendants had violated Chapter 93A. He concluded as follows:

“The unexplained disappearance of plaintiffs rug from defendants’ premises is not in itself an unfair or deceptive act within the meaning of M.G.L. c. 93A, §§ 2 and 9.
“Defendants’ behavior subsequent to plaintiffs demand that his rugs be returned was not so unreasonable as to constitute an unfair or deceptive act within the meaning of M.G.L. c. 93A, § § 2 and 9.”

We agree with the first conclusion but disagree with the second.

We note first that the question is a legal one, not a purely factual one, and is thus renewable. See Commonwealth v. DeCotis, 366 Mass. 234, 240 (1974). The trial judge is entitled to deference with respect to his findings of fact, but we are not bound by his conclusions as to their significance. See Datacomm Interface, Inc. v. Computerworld, Inc., et al., 396 Mass. 760, 777 (1986), where the trial court’s conclusion that facts found by a master did not demonstrate a violation of Chapter 93A was reversed. The judgment whether a particular set of facts amounts to a violation of the legal standard ought not vary with the fact finder. Review of such a judgment is precisely the appellate function.

A resume of salient facts is useful here, with reference made to where they are set forth in the Report:

On February 9, 1983, several years after the rugs had first been delivered into Superior’s custody, O’Keeffe visited its place of business and sought to retrieve them. Santacroce, newly in charge of the business for Superior, could not locate either rug. [R. 4 ]. Two days later, on February 11, one of the rugs was found and returned to O’Keeffe. No demand was made by Santacroce for any accumulated storage charges. [R. 5]

Between February and June, Santacroce searched diligently for the missing rug. [R. 5 ] During this period, O’Keeffe made several unsuccessful attempts to get. in touch with Santacroce by telephone. [R. 11.] Sometime in June, Santacroce concluded that the rug could not be found. [R.5.]

On June 11, O’Keeffe wrote to Santacroce expressing dissatisfaction with the manner in which Superior was responding to the problem of the missing rug. In his letter, he fixed the value of the rug at $4,000 and offered to accept in its place a rug of comparable value. He threatened legal action if not satisfied by June 30. Santacroce did not respond to the letter. [R. 6.)

Between June and September O’Keeffe made several more unsuccessful attempts to reach Santacroce by telephone. In July, Santacroce, without notifying O’Keeffe, spoke with an experienced rug merchant about the possibility of getting a comparable replacement rug. [R. 6.]

O’Keeffe finally spoke by phone with Santacroce in October 1983. In that conversation Santacroce told him that his rug could not be found. [R. 6. ] From the judge’s findings as a whole it is clear he concluded that this was the first communication about the rug from the defendants to the plaintiff since the previous February ll. It is also apparent that O’Keeffe had for some time assumed that the rug would not be found.

In sum, according to the findings, what Santacroce did, on behalf of Superior, was to search diligently and thoroughly for the missing rug. After he had determined in June that the rug was lost, he even took some steps toward finding a suitable replacement. What he did not do, however, was to communicate at all with O’Keeffe between February and October about the status of the search for the missing property, despite a strongly worded letter and a number of attempted but unsuccessful telephone calls from O’Keeffe.

We hold that the defendants’ failure to communicate with their customer about his rug for eight months in all, and for four months after Santacroce had himself concluded that the rug could not be found, is an unfair commercial act or practice within the meaning of Chapter 93A, § 2. It is inconsistent with the purpose of Chapter 93A for a merchant to keep a customer such as the plaintiff in the dark about the status of a complaint or inquiry under the circumstances and for the length of time involved here. Cf. Antonelli v. Delta Airlines, Inc., 1986 Mass. App. Div. 75. An obligation to keep the customer advised is all the more compelling where, as here, the plaintiff was actively endeavoring to get the defendants’ attention to find out where things stood.

One of the important means by which Chapter 93A seeks to achieve “a more equitable balance in the relationship of consumers to persons conducting business activities” is by promoting “proper disclosure of information.” Lowell Gas Co. v. Attorney General, 377 Mass. 37, 51 (1979). Thus, for example, the failure of a person in business to provide material information may be a violation of Chapter 93A even if it would not constitute a wrong under common law principles. Slaney v. Westwood Auto, Inc., 366 Mass. 688, 703 (1975). Information can be important to the consumer not only in deciding whether to enter into a transaction but also in deciding how to proceed if and when problems arise in the course of a business relationship. It can be particularly important where property entrusted by the consumer to a business person appears to be missing. A bailee’s unique position to know the relevant facts supports his bearing the burden of proof as to whether he was negligent, in caring for the bailed goods. Knowles v. Gilchrist Co., 362 Mass. 642, 651 (1972). The same considerations support the proposition that a bailee must act reasonably to advise a customer about the status or condition of bailed goods.

In the present case, having taken four months to determine that O’Keeffe’s rug was lost, the defendants, notwithstanding that determination, ignored O’Keeffe’s June 11 letter and avoided, at least by inaction, any communications with him at all for another four months. This was not a “proper disclosure of information.” See, Lowell Gas Co. v. Attorney General, supra, at 51. O’Keeffe was entitled to reasonably prompt notice that the defendants themselves had concluded the rug committed to their custody was lost.

The fact of the loss is after all only the first part of the issue between the parties. What recompense, if any, is to be given for the loss is the second, and critical, point. It is really what “consumer protection” is all about. Delay in resolving the first question necessarily prevents resolution of the second, and thereby thwarts the goals Chapter 93A was enacted to promote.

The trial judge explained his decision that the defendants had not violated Chapter 93A by observing that O’Keeffe suspected early on that his rug would not be returned, that he was a sophisticated person who considered the possibility of legal action, and that he was not misled or “induced into a detrimental course of conduct by the defendants.” [Findings, p. 7.] None of these considerations weakens the conclusion that the defendants’ behavior in the circumstances established in this case was unfair in violation of Chapter 93A, § 2.

In the first place, a merchant cannot be relieved of the obligation to keep his customers reasonably informed simply because the customer may have come, on the basis of what he does know, to his own unhappy conclusion that his property would probably not be found. The idea is pernicious. The longer the merchant were to delay in providing information, the more resigned the customer would likely become that his property has been lost. Delay would thus ultimately supply its own excuse. This makes no sense. A merchant can fulfill his obligation to inform only by providing information. What the customer already suspects does not reduce the duty.

Nor is the subjective impact of the failure to communicate upon the particular customer important. The judge thought the plaintiff to be a man of “advanced education” and not a “naive consumer.” These conclusions, however well-founded in the evidence are beside the point. The question is not whether the plaintiff was actually deceived, as it would be in an action claiming fraud or misrepresentation. See, Slaney v. Westwood Auto, Inc., supra, at 703-4. In prohibiting unfair or deceptive trade acts or practices, Chapter 93A makes no distinctions among the kinds of consumers it protects. Even sophisticated people are to be protected from unfairness and deception.

Moreover, besides providing compensatory redress for injuries suffered by consumers, Chapter 93A also seeks to affect commercial behavior. To this end, misbehavior which results in no actual damages still is remediable under the statute. G.L. c. 93A, § 9 (3);Leardi v. Brown, 394 Mass. 151, 157-61 (1985). The • defendants’ conduct is the object of judgment, and it is to be judged without reference to whether the plaintiff knew enough to enforce correct behavior by resort to the legal process. Indeed, one of the aims of Chapter 93A is to encourage commercial practices that reduce the need for litigation enforcement, and even where litigation appears imminent the law’s purpose is to require a final effort at extra-judicial resolution. To hold Chapter 93A inapplicable if the customer knows enough to think about suing would distort these purposes.

Thus, we conclude that the trial judge should have allowed the plaintiffs Request 8. Since no actual damages were shown to have been caused by the delay in communication, the plaintiff is entitled to an assessment of $25 under Count I, G.L. c. 93A, § 9 (3). These minimum statutory damages may not be multiplied. Leardi v. Brown, supra, at 162-63. He is also entitled to an assessment of attorney’s fees, G.L. c. 93A, § 9 (4), which for obvious reasons has not been done. See discussion below at pages 11-12.

B. Violation of Chapter 93A by Failing to Consummate Settlement

After the parties had finally spoken to each other in October 1983, they began to explore the possibility of finding a comparable replacement rug as a way of resolving O’Keeffe’s claim. Two experts, one acting for each side, helped in the process. In February or March 1984, O’Keeffe selected a rug having a fair market value of $4,000 which the defendants would give to him as a replacement for his lost property. The defendants were able to purchase the rug for $2,800. Before agreeing to deliver the rug, however, Santacroce demanded that O’Keeffe pay what Santacroce claimed were accumulated unpaid cleaning and storage charges for O'Keeffe’s rugs in the amount of $500. O’Keeffe'refused, and what had nearly been a successful settlement fell apart. [R. 5.]

The plaintiff made the following two Requests, which were denied by the trial judge:

“13. The defendants’ failure to grant the requested relief upon demand was made in bad faith with knowledge or reason to know that the acts or practices complained of violated c. 93A, § 2.
“14. The defendants’ demand that O’Keeffe pay cleaning charges which had already been paid and that he pay storage charges up to February 9,1983 when the defendants did not have custody of Rug 1 at that time and could not demonstrate how long they did have custody of Rug 1 was an unfair or deceptive act or practice in violation of c. 93A, §§ 2 and 9, made knowlingly and willfully.”

By these requests, the plaintiff urges that the breakdown of settlement negotiations by the late injection of an additional term by Santacroce also constituted an unfair practice under Chapter 93A. We do not agree.

As the trial judge correctly pointed out, “the fact that the parties were not able to settle t.ieir differences is not a per se violation of Chapter 93A or proof that the defendants were acting in bad faith.” Settlement negotiations may cover a broad scope of issues between the parties, including on occasion issues that both parties may have previously considered to have been closed. Whether any money was owed on account of storage prior to February 1983 - even if only with respect to the rug that was returned - was a legitimate area for negotiation in discussions aimed at reconciling all outstanding issues. By nature and necessity, settlement negotiations are fluid. The fact that the defendants initially made no demand for storage charges might have some significance as evidence in litigation, but it does not prevent the matter from being raised in settlement talks, absent bad faith. Here, there was no finding of bad faith. The trial judge was not persuaded to the plaintiffs position that the defendants’ demand for storage charges after a settlement had appeared likely was done for the purpose of obstructing the settlement. There is nothing in the reported evidence that should cause us to disturb that conclusion. Requests 13 and 14 were properly denied.

The judge also denied the following Request:

“15. O’Keeffe is entitled to recover reasonable costs, including his expert’s fees, and attorney’s fees incurred in connection with this matter.”

As we have already noted, the plaintiff, prevailing on his claim under Chapter 93A, is entitled to reasonable attorneys’ fees. G.L. c. 93A, § 9 (4). The judge obviously denied the Request because of his ruling, which we reverse, that there had been no violation of Chapter 93A. So much of the Request as pertained to attorneys’ fees ought to have been allowed.

The plaintiff will also be entitled to statutory costs of suit. See Dist./Mun. Cts. R. Civ. P., Rule 54 (d). Otherwise, no basis is indicated for the payment of other expenses, such as fees of an expert. That portion of the Request was properly ; denied.

II. The Defendants'Appeal

The defendants have appealed from the trial judge’s denial of several Requests for Rulings of Law, from his allowance of a motion to amend the Complaint, and from his establishment of the date from which interest should run on the damages assessed under the contract claim set forth in Count III.

Requests 10-15, which are set forth in Appendix B to this opinion, are essentially requests for findings of fact. They are all based upon the factual predicate that the storage receipt given to O’Keeffe when he delivered his rugs into Superior’s custody constituted part or all of the contract between the parties. The trial judge expressly found to the contrary. He said:

“The written invoice and the limitation of liability provisions contained thereon and received by the plaintiff several days later, was not apart of the contract and are not binding on the plaintiff.. The rather substantial provisions of the invoice purporting to limit defendants’ liability were not discussed between the parties; and at the formation of the contract the parties did not agree to future modifications of the contract. Although plaintiff acknowledged receipt of the invoice, there was no evidence from which the court might infer that plaintiff accepted, acquiesed in or otherwise adopted the provision of the invoice as part of its bargain with Superior.” Findings, pp. 10-11.

It is obvious that the judge carefully evaluated the evidence and determined the factual issue against the defendants. The Requests were properly denied.

The defendants also made this Request:

“17. As a matter of law, the plaintiff is bound by his attorney’s allegations in the complaint that Exhibit Attached to the complaint is a memorandum of the contract between the parties. Loomis v. New York, New Haven & Hartford RR, (1983) [sic] 159 Mass. 39.

And the judge ruled:

“17. Denied. Contrary to previous ruling of court permitting plaintiff to amend his complaint pursuant to M.R.C.P. Rule 15 (b).”

The Report contains the following summary of facts pertinent to this Request and to the defendants’ related objection that it was error for the trial judge to have allowed the plaintiffs motion to amend the Complaint:

“At the commencement of trial and approximately fifteen minutes into plaintiffs testimony, counsel for plaintiff requested leave to amend the complaint to conform to the evidence. .. . After hearing, the court found that said motion was proper in light of plaintiffs testimony; consistent with pretrial communication between the parties; and the allowance of said motion would not prejudice the defendants’ maintaining their defense upon the merits. Counsel for defendants was granted leave to amend the answer and/or continue the proceeding. The proceedings were continued for two weeks to allow defendants further opportunity to prepare their defense.”

In the first place, the trial judge did not err in allowing the motion. Whether to grant such relief is within the sound discretion of the judge. Here the Report indicates appropriate application of discretion. The judge carefully set forth the considerations which supported his allowance of the motion, and they were entirely proper. Motions to amend pleadings are to be allowed liberally. Dist./Mun. Cts. R. Civ. P., Rule 15 (a). It is appropriate to amend pleadings to conform to evidence adduced at a trial. Id., 15 (b). The judge carefully considered whether the allowance would prejudice the defendants, determined that it would not, and further granted them extra time to prepare for trial under the recast pleadings. The circumstances show no abuse of discretion, but rather a balanced evaluation of the relevant factors.

Although the Report does not contain the details, we gather from the Request and the judge’s Ruling that what might have been an admission by pleading was omitted from the amended complaint. Once the complaint has been amended, the former complaint has no significance. The Request was properly denied.

The defendants made the further Request:

“21. If the court finds that the defendants’ Tender of Settlement filed before trial was reasonable in relationship to the injury actually suffered by the plaintfiff, the plaintiffs recovery cannot exceed the relief tendered and cannot include attorney’s fees incurred after the rejection of the tender of settlement.”

And the judge ruled:

“21. Denied. Defendants’ offer of settlement incorporating the terms outlined in this request were made after the commencement of litigation and filed with the court on the first day of trial. Plaintiff was not obligated to accept said offer no matter its terms.”

We accept the judge’s statement concerning the circumstances under which the offer of settlement was made. Accepting that, it is clear that the Ruling was correct. Such an offer of settlement comported neither with Chapter 93A, §9(3), nor with Dist./Mun. Cts. R. Civ. P., Rule 68.

The Report states that the defendant was aggrieved by the court’s denial of Request 22. However, Request 22 was allowed, albeit with the observation that it was immaterial. The observation was accurate.

Finally, the defendants argue that the trial judge erred in setting February 9, 1983 as the date from which interest was to run on the contract damages. The evidence clearly established that day as the date of breach and loss. It is the appropriate date from which to calculate interest on the award. G.L. c. 231, § 6t\

Conclusion

The judgment of the trial court is reversed as to Count I. The case is remanded for entry of judgment for the plaintiff under Count I in the statutory sum of $25 against each defendant, plus attorneys’ fees as determined on remand. The judgment is in all other respects affirmed. The plaintiff is to have costs of this appeal.

Dissenting Opinion

■ Donovan, J.

dissenting:

The communication breakdown here was apparently seen by the trial judge as either a product of both parties’ approach to one another or insufficiently egregious to rise to the level of an unfair or deceptive act by defendant. Where there is some evidence, supported by reasonable inferences, sufficient to come out either way on the issue, the determination of the trial judge should be given great weight. In the circumstances here presented I find neither an error of law nor an abuse of discretion and would uphold the decision of the trial judge regarding the plaintiffs Count I alleging M.G.L. c. 93A violations. I, therefore, dissent to Part I.A. of the majority opinion.

There is no question that defendant Superior Carpet, Inc. (“Superior”) is accountable to plaintiff O’Keeffe for the lost rug. The majority appears to find that as a matter of law, or, as a matter of fact so plain that it would be an abuse of discretion not to so find, that defendant Superior acted unfairly in responding to O’Keeffe’s rightful claim. In that regard the majority focuses almost entirely on the failure of the defendant to communicate with plaintiff. I would focus on the matter in its entirety, as did the trial judge, and decide the case upon all the circumstances.

The trial judge was warranted in finding that plaintiff O’Keeffe’s initial approach to defendant Santacroce (for Superior) set a negative tone to the parties’ relationship. Santacroce had recently been beset by internal strife with a co-owner of Superior (R. 4). Now as Santacroce sought to regain some equilibrium he is approached by plaintiff O’Keeffe who demands two rugs of which Santacroce had no prior knowledge (R.4). Upon a search with O’Keeffe one rug is found but has a tag indicating ownership in another (R.4). Santacroce reasonably refuses to release the rug until the ownership can be determined. However, apparently not satisfied with this, plaintiff returns the very next day demanding again that the rug be returned (R.4). At that point, February 10,1983, communication clearly broke down between the parties (R. 5). A reasonable review of the trial court’s findings suggests that both parties contributed to this breakdown (R.5). Communication was not re-established between the parties until October of 1983, some eight months later (R.6).

Were there no additional facts than these, I would agree with the majority. However, during the period of silence between the parties defendant Santa-croce was not idle. On February 11,1983 Superior returned the remaining rug to O’Keeffe (R.5). Between February and June of 1983 Santacroce made a comprehensive investigation of the circumstances surrounding the disappearance of O’Keeffe’s rug (R. 5). Upon concluding that the rug would not be found in June, 1983 (R. 5), Superior retained expert assistance in July of 1983 to identify a suitable replacement for the rug (R. 6).

Presumably the trial judge found that these efforts were sufficiently sincere to mitigate the lack of communication. While the maj ority discounts it, the trial judge also was quite aware of the parties’ level of sophistication. In this instance the fact that in February of 1983 O’Keeffe was aware that the rug was very probably lost to him (R. 5), certainly diminishes the importance of Superior’s communicating that fact to him, so long as Superior continued to take appropriate steps to make good on O’Keeffe’s loss.

Furthermore, the sophistication of Superior itself should not be overlooked. Refunding a $4,000.00 loss takes an increasingly greater significance the smaller the company. It is also reasonable to infer that a small company is not accustomed to dealing with such losses and would not be expected to have sophisticated or well oiled procedures in place to efficiently deal with such losses. For this reason, analogy to Antonelli v. Delta Airlines, Inc., 1986 Mass. App. Div. 75, is a hard one to make and, therefore, a distinction should be made between it and the present case.

An appellate tribunal must have a firm conviction that a mistake was committed below, before tampering with the determination of the trial judge. See, New England Canteen Service, Inc. v. Ashley, 372 Mass. 671, 675 (1977). Determinations concerning what is unfair, within certain broad guidelines, is generally left to the discretion of the trial judge. See, Commonwealth v. DeCotis, 366 Mass. 234 (1974). Here the judge found no unfairness sufficient to invoke a violation of Chapter 93A. While another judge might have acted differently on these facts at a trial, without more, there is no good reason to reverse here on appeal. I would affirm.

APPENDIX “A”

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. Boston Municipal Court

CIVIL DIVISION

Docket No. 072309

****‡**********

KEVIN 0. O’KEEFFE Plaintiff

v. FINDINGS

SUPERIOR CARPET, INC.,

PAUL SANTACROSE Defendant

Per order of the court, the previous judgment entered in this matter was opened and additional testimony taken by the court. This opinion represents the court’s final judgment, and it is the intent of the court that the findings expressed herein supersede any previous findings entered by the court.

Plaintiffs complaint asserts three counts of recovery: breach of contract, conversion, and violations of M.G.L. c. 93 §§ 2 and 9. As to each count of plaintiff’s complaint, the Defendants entered a general denial. Upon consideration of all the credible evidence, the court makes the following findings of fact and enters judgment accordingly.

On or about November 26,1979 during a telephone conversation initiated by the plaintiff it was agreed that the defendant Superior Carpet (Superior) would clean and store two oriental rugs for the plaintiff, in exchange for which plaintiff would pay Superior a reasonable fee. Estimates were given for cleaning, and storage was quoted as approximately 9 to 10 dollars per month, Within hours of this telephone conversation, Superior sent a pick up truck to plaintiffs home for the rugs. At his request, plaintiff was given a handwritten receipt wherein the operator of the truck acknowledged receipt of the rugs and indicated they were being taken for cleaning and storage (see Exhibit #3).

Several days after acceptance of the rugs, Superior sent and plaintiff received a copy of an invoice numbered N001800 further acknowledging receipt of the rugs and specifying charges consistent with estimates quoted during the aforementioned telephone conversation. The back side of the invoice sought to specify various conditions under which Superior accepted the rugs and to limit Superior’s liability in the event the rugs were lost or damaged. The invoice was not signed by plaintiff or an agent of Superior (see Exhibit #15).

On or about February 5, 1980, plaintiff paid Superior the sum of $85.00 for cleaning (see Exhibit #5), and on August 11, 1980, plaintiff paid Superior $72.00 for storage charges accrued on the rugs through August 26, 1980. Storage charges were billed at the rate of $9.00 per month (see Exhibit #8).

In June of 1981 plaintiff visited Superior to inquire into why storage bills were no longer beingsenttohim;he was told by a secretary at Superior that his rugs were still in storage and final storage charges could be paid once delivery was requested.

The operation of Superior was adversely affected during 1981 when a dispute between defendant Santacrose and Daniel Hamway, the one time majority stockholder, resulted in litigation and the ultimate transfer of majority ownership to defendant Santacrose.

On or about February 9,1983 plaintiff went to the premises of Superior and requested of defendant Santacrose the delivery of the two rugs. Defendant Santacrose seemed surprised and did not believe they were in possession of the rugs. Defendant Santacrose had no involvement with plaintiffs account prior to February 9,1983. Plaintiff accompanied defendant Santacrose to the rug storage area and located the larger of the two rugs, but the tag on this rug indicated that the rug belonged to someone else. The plaintiff went home for documents which might help prove his ownership of the rugs and facilitate their location. Plaintiff returned the same day and showed defendant Santacrose photographs of both rugs. They could not locate the second rug. Defendant Santacrose would not release the rug plaintiff identified as his and stated he needed some time to verify ownership and locate the missing rug. Plaintiff left defendant Santacrose a photograph of the rug he could not locate (see Exhibit #9). The following day, February 10, 1983, plaintiff returned to Superior and further requested the return of his rugs. Defendant Santacrose indicated that circumstances had not changed since plaintiffs visit of the previous day; that he was trying to run a rather large business, and he needed more time to investigate the matter. Both parties were angry, and exchanged volleys regarding the value of the rugs, and their respective legal positions. Plaintiff left the premises dissatisfied. Plaintiff surmised that it was unlikely that he would ever recover the missing rug.

On about February 11, 1983, defendant Santacrose returned the larger of the two rugs to plaintiff. Plaintiff accepted delivery and signed a letter acknowledging receipt of the larger rug (see Exhibit #10). Plaintiff was not requested to pay any additional storage charges at the time of delivery; neither party mentioned the second or missing rug.

Between February 11, 1983 and June of 1983, defendant Santacrose reviewed the inventory of Superior, spoke with employees, reviewed office documentation, and personally searched the premises of Superior all in search of the missing rug. In June of 1983 defendant concluded that he would not be able to locate the missing rug, speculating that the missing rug had been stolen and its whereabouts unknown. Defendant Santacrose does not know what happened to the missing rug. Defendant Santacrose did everything reasonable and possible to locate the missing rug. The unexplained circumstances surrounding the missing rug; the length of time the rugs were in storage; defendant Santacrose’s lack of involvement with plaintiff’s account prior to February 9, 1983; and the disruption in the operation of Superior caused by the change in ownership were all contributing factors in the amount of time required by defendants to conclude that they would not be successful in locating the missing rug. Defendant Santacrose failed Lo communicate his inability to locate the missing-rug to the plaintiff.

On or about June 11,1983 plaintiff wrote defendant a letter expressing his dissatisfaction with the manner in which the defendants were responding to the matter of the missing rug, stated the value of his rug to be $4,000.00, and expressed willingness to accept a comparable rug of equal value. Plaintiff further threatened legal action if defendants were not forthcoming with appropriate satisfaction by June 30, 1983 (see Exhibit #11). Defendant did not respond to plaintiffs letter of June 11, 1983. Plaintiff did not take legal action as threatened, but made several unsuccessful efforts to reach defendant Santacrose by telephone between June and September 1983. Finally, in October 1983, plaintiff spoke with defendant Santacrose by telephone and was told that the missing rug could not be located. Prior to this conversation, approximately July 1983, defendant Santacrose retained the assistance of Richard A. Kirkjian of Brooks, Gill & Co., Boston, in identifying a suitable replacement for the missing rug.

Eventually, through Mr. Kirkjian and Koko Boodakian, an independent appraiser for the plaintiff, it was agreed that plaintiff would be permitted to select a comparable replacement rug from Brooks, Gill & Co.

In February or March 1984 plaintiff selected a rug at Brooks, Gill & Co. as a replacement for the missing rug. However, before agreeing to deliver the replacement rug, defendant Santacrose requested the plaintiff pay $500.00 for storage and cleaning which he alleged were due for both rugs. Plaintiff refused to pay any additional amount for storage or cleaning. The replacement rug was not delivered, and discussions between the parties terminated.

The fair market value of the missing rug is $4,000.00. Brooks, Gill & Co. had agreed to sell the rug plaintiff selected as a replacement to the defendant for $2,800.00.

By letter dated May 1,1984, plaintiff through counsel notified the defendants that plaintiff considered their conduct to be a knowing and willful violation of the Massachusetts Consumer Protection Act and demanded various elements of relief. Said letter satisfied all requirements of a demand letter within meaning of Chapter 93A. Defendants never made a response to plaintiffs demand letter (see Exhibit #12).

Plaintiff commenced this action on June 18,1984.

COUNT I - CONSUMER PROTECTION ACT

The defendants did not commit any unfair or deceptive act within the meaning of M.G.L. c. 93A, Sections 2 and 9.

The court finds no deliberate or willful misconduct by the defendants intended to deprive plaintiff of his rugs or the benefit of his bargain to have his rugs cleaned and stored.

The unexplained disappearance of plaintiffs rug from defendant’s premises is not in itself an unfair or deceptive act within the meaning of M.G.L.c. 93A §§2 and 9.

Defendant’s behavior subsequent to plaintiffs demand that his rugs be returned was not so unreasonable as to constitute an unfair or deceptive act within the meaning of M.G.L.c. 93, §§2 and 9.Defendants’ need, at the time of plaintiffs initial demand for the rugs, to verify ownership and investigate the circumstance of the missing rug was warranted. The rug returned within two days of demand was returned as promptly as possible under the circumstances. Defendants were not in possession of the missing rug and could not return it.

Plaintiff argues that defendant Santacrose’s failure to notify him for more than eight (8) months regarding the status of the missing rug should go far in establishing a violation of Chapter 93A. However, the court thinks it significant that as early as February, 1983 plaintiff actually formulated the belief that it was unlikely that the missing rug would be located. Also, plaintiff trial demeanor, advanced education, and general socio-economic status are all inconsistent with plaintiffs trial position that he was merely a naive consumer without suspicion regarding the status of the missing rug, and for nearly eight months he anxiously awaited for defendant to return the missing rug to him only to discover eight months later that the rug could not be located.

Furthermore, plaintiff’s letter to the defendants dated June 11,1983 and marked Exhibit #11 evidenced plaintiffs awareness of his legal recourse, and on at least one occasion between February and October 1983, plaintiff consulted with a lawyer. More importantly, this is not a situation where plaintiff was unfairly induced into a detrimental course of conduct by the defendants. Defendants did nothing between February and October of 1983 to induce plaintiff to forebear from pursuing whatever legal remedy available to him. On February 9,1983 and at all times thereafter plaintiff was at liberty to pursue whatever remedy at law he thought appropriate. Plaintiffs unilateral decision to do otherwise, in the absence of some bad faith conduct by the defendants, cannot now serve as a basis for relief under Chapter 93A. In addition, the injury suffered by the plaintiff was the loss of his rug. A loss appropriately redressed by an action in contract. There is not a nexus between defendants’ belated notice to the plaintiff regarding defendants’ inability to locate the missing rug and the actual injury suffered by the plaintiff, the loss of his rug. The unexplained disappearance of plaintiffs rug is not related to defendants’ failure to communicate with plaintiff between February and October of 1983. Plaintiff offered no credible evidence of an injury other than the loss of his rug. Thus, even if the court were inclined to find that such failure to communicate constituted an unfair or deceptive act within the meaning of Chapter 93A, plaintiff has failed to prove that he suffered any articulable injury as a result of said conduct.

Furthermore, the court is satisfied that subsequent to defendants’ establishment that the second rug could not be found and the communication of this fact to the plaintiff in October 1983, both plaintiff and defendants elected to begin settlement discussions. These settlement discussions broke down only when defendants requested plaintiff to pay service charges allegedly accrued for storage and cleaning on both the returned and missing rugs in the amount of $500.00. Plaintiff denied owing and refused to pay any additional charges. The aggregate amount of storage and cleaning charges which were to accrue were not specified in the contract. However, if the court were to infer that the cleaning bill paid by plaintiff in February of 1980 constituted a final bill for cleaning, plaintiff was aware that storage charges accrued on a monthly basis and that he had paid storage charges only through August of 1980. Plaintiff received confirmation from defendant’s secretary in June of 1981 that both rugs were still in storage and that the final bill for storage could be paid once plaintiff requested delivery. Therefore, plaintiff owed defendants for nearly three years of storage for the rug returned to plaintiff, and, assuming, favorably to the plaintiff, the missing rug disappeared immediately after defendants’ secretary confirmed that it was in storage in June on 1981, plaintiff also owed defendants for approximately one year of storage on the missing rug. Defendant Santacrose’s request that plaintiff pay an additional charge of $500.00 may have been incorrect in amount, but plaintiffs refusal to pay any additional charges was equally incorrect and did nothing to advance the already substantial effort both parties had devoted to good faith discussions. The evidence does not support a conclusion that the defendants’ conduct was the sole or even primary cause for the breakdown in discussions between the parties, and the court is not persuaded that defendants’ conduct during these discussions constituted an unfair or deceptive act within the meaning of M.G.L. c.93A§ 2.The fact that the parties were not able to settle their differences is not a per se violation of Chapter 93A or proof that the defendants were acting in bad faith.

COUNT II — CONVERSION

The court is not persuaded that defendants’ action taken as a whole constituted the tort of conversion. Defendant Santacrose’s failure to return both rugs on February 9,1983 was not an effort by defendant to interfere with plaintiffs right to ownership or control, but a legitimate effort by the defendant Santacrose to establish plaintiffs right of ownership and the whereabouts of the missing rug. The tag on the rug identified by plaintiff indicated someone other than plaintiff owned this rug and the second rug could not be located. Defendant was reasonable and prudent in requiring additional time to investigate the matter. Defendant’s return of the second rug two days after demand was reasonable under the circumstances and no act of conversion was committed. It was clear from defendant Santacrose’s trial testimony that he could not determine the circumstances surrounding the disappearance of the second rug; his initial assertion that it was stolen, though likely, was mere conjecture. Defendant did everything reasonable to locate the missing rug. On the date of plaintiffs initial demand for the rugs and all times thereafter, defendant was not in possession of the missing rug and could not satisfy plaintiffs demand for it. Magaw v. Beals, 272 Mass. 334(1930); DAloisiov. Morton, Inc., 26 Mass. App. Dec. 36(1963); Broum v. Waterman, 64 Mass. 117(1852).

COUNT III BREACH OF CONTRACT

The contract between the plaintiff and Superior was oral. The written invoice and the limitation of liability provisions contained thereon and received by the plaintiff several days later, was not a part of the contract and are not binding on the plaintiff. The rather substantial provisions of the invoice purporting to limit defendants’ liability were not discussed between the parties; and at the formation of the contract the parties did not agree to future modifications of the contract. Although plaintiff acknowledged receipt of the invoice, there was no evidence from which the court might infer that plaintiff accepted, acquiesed in or otherwise adopted the provision of the invoice as part of its bargain with Superior. Wainwright v. Mass. Storage Warehouse Co., 219 Mass. 249(1914).

Superior’s failure to return both of plaintiffs rugs on demand as agreed constitute a breach of contract, and the plaintiff is entitled to recover from the defendant Superior Carpet, Inc., the fair market value of the missing rug, the sum of $4,000.00. Defendant Santacrose was not a party to the contract and is not liable to the plaintiff in contract.

R ULINGS ON DEFENDANTS REQ UESTS FOR R ULINGS OFLAW

Defendants’ requests for rulings of law as they relate to counts I and II are considered waived.

1. Denied.

10. Denied. Inconsistent with facts found. See findings.

11. Denied.

12. Denied. Inconsistent with facts found. See findings.

13. Denied. Inconsistent with facts found. See findings.

14. Denied. Inconsistent with facts found. See findings.

15. Denied.

17. Denied. Contrary to previous rulings of court permitting plaintiff to amend his complaint pursuant to M.R.C.P. Rule 15(b).

18. Denied.

21. Denied. Defendants’ offer of settlement incorporating the terms outlined in this request were made after the commencement of litigation and filed with the court on the first day of trial. Plaintiff was not obligated to accept said offer no matter its terms.

22. Allowed, but immaterial to facts found. See ruling #21 and facts stated therein.

RULING ON DEFENDANTS’ ADDITIONAL REQUEST FOR RULINGS OF LAW

3.Denied. Inconsistent with facts found.

RULINGS ON PLAINTIFF’S REQUEST FOR RULINGS OFLAW

1. Denied. See findings.

2. No ruling required as request calls for a finding of fact. However, see findings.

3. This request is not applicable to the specific issues before the court. It contains mixed questions of law and fact, and lacks requisite specification for correct disposition by the court. Plaintiffs refusal to pay additional storage charges was considered only in the context of that portion of plaintiffs complaint alleging violation of Chapter 93A, and the reasonableness of plaintiffs conduct during settlement discussions between the parties. See findings.

4. No ruling required as request calls for a finding of fact. See findings wherein the court found facts consistent with this request.

5. No ruling required as request calls for a finding of fact. However, see findings.

6. Allowed, but see findings for specific circumstances of breach.

7. Denied. See findings.

8. Denied. See findings.

9. Denied.

10. Allowed, but immaterial to facts found. See findings, and ruling #9.

11. Allowed.

12. Allowed.

13. Denied. Inconsistent with facts found. See findings.

14. Denied. See findings.

15. Denied.

16. Denied.

17. Allowed as to count III of plaintiffs complaint.

Charles R. Johnson, Associate Justice

APPENDIX “B”

“10. Plaintiff is bound by the conditions on the reverse side of the receipt for the cleaning and storage of the rugs.

“11. Plaintiff had admitted that the conditions of the contract were applicable to him by his reference to his February 11, 1983 letter acknowledging receipt of one of the rugs under Invoice 1800 in storage with Superior since November 26, 1979.

“12. Defendant has the right under the storage receipt to sell both rugs on or after May 17,1980, without notice to plaintiff.

“13. The plaintiff had the option under the storage agreement to declare a greater value for the rug than the $50 limitation or liablity expressed in the agreement. If plaintiff did not make such declaration, he is bound by the $50 limitation.

“14. Whether or not defendant was negligent in the storage of the rugs is irrelevant on the question of damages under the storage contract and the limitation of liability clause therein.

“15. As a matter of law, the plaintiff cannot pay storage or cleaning charges under contract 1800 and controvert all other provisions of the agreement for storage.” 
      
       Chapter 93A furnishes no definition of what constitutes an unfair act or practice made unlawful by [section] 2(a) .... The existence of unfair acts and practices must be determined from the circumstances of each case.” Id., at 241-42.
     
      
       The judge's findings contain no specific determination as to why the telephone attempts were unsuccessful.
     
      
       The dissent takes issue with a focus “almost entirely on the failure of the defendant to communicate with [the] plaintiff," and urges a focus “on the matter in its entirety” and a decision “upon all the circumstances.” Such a view is entirely appropriate and prompts us to take note of the plaintiffs persistence in his efforts to communicate with the defendants. Between February and June he tried to reach Santacroce several times by telephone and, having failed, wrote a letter, which the defendants ignored. He thereafter made several more attempts to reach the defendants by telephone. If the plaintiff had any responsibility for the breakdown in communications, it was minor compared with the defendants’.
     
      
       A regulation promulgated by the Attorney General, 940 Code Mass. Regs, section 3.16(2), “makes it a violation of G.L. c. 93A, [s. ] 2, for one to fail ‘to disclose to a buyer or prospective buyer a fact which may have influenced the buyer or prospective buyer not to enter into the transaction Net v. Boston Survey Consultants, Inc., 388 Mass. 320, 323 (1983).
     
      
       In Knowles, the Court noted that the“essential unfairness ” of requiring the bailor to bear the burden of persuasion on the issue of the bailee’s negligence “even though he may not have access to the information” needed to do so “is even more pronounced in cases, like the instant one, where the bailor is a consumer. The consumer’s unfamiliarity with the bailee’s trade practices and commercial customs aggravates the difficult task that all bailors face in trying to rebut the inference of due care which the Bailee has created by selecting the most favorable facts from all the information exclusively available to him.” Id., at 649-50 (emphasis in original).
     
      
       For this reason, the judge’s denial of Request 16 [“O’Keeffe is entitled to recover treble damages"] was proper, even though the judge may have had different or additional reasons for denying it.
     
      
       The case was decided in 1893. It does not deal with an amendment of pleadings but with the authority of an attorney to bind his client by a statement made in a letter to a prospective litigation opponent.
     