
    O. H. Willson vs. John Vlahos.
    Middlesex.
    December 4, 1928.
    February 28, 1929.
    Present: Rugg, C.J., Crosby, Carroll, Wait, & Sanderson, JJ.
    
      Contract, Construction, Performance and breach. Sale, Warranty. Damages, Recoupment.
    Strawberries, shipped by a seller in Arkansas to a purchaser in Massachusetts in response to a telegram reading: “Ship car tomorrow. Best stock. Lowest price possible”: are sold subject to an express warranty that they are “best stock.”
    At the hearing by a judge without a jury of an action of contract for the purchase price of berries sold upon the order above quoted, there was no evidence that the words “best stock” had any special or peculiar significance in the trade in Arkansas, except testimony by an expert called by the defendant “that strawberries which had suffered preshipment injury, either mechanical or from overheating, did not ‘come in the trade within the description of best stock.’” It appeared that the berries had suffered from preshipment injury due to overheating, and that thereby the defendant had suffered damage in excess of the purchase price. The defendant did not discover the condition of the berries until many had been sold by him. He claimed damages in recoupment. There was a finding for the plaintiff. Held, that
    (1) Upon the evidence, the words “best stock” were to be interpreted as commonly understood and used and related not only to grading but to quality;
    (2) There was a breach of the express warranty that the berries would be “best stock”;
    (3) The finding should have been for the defendant.
    
      Although it appeared, at the hearing of the action above described, that the damages suffered by the defendant by reason of the breach of warranty by the plaintiff exceeded the amount due the plaintiff from the defendant for the berries, the defendant could not recover such excess in the action against him for the purchase price.
    Contract for the purchase price of strawberries alleged to have been purchased of the plaintiff in Van Burén, Arkansas, and shipped to the defendant in Lowell, Massachusetts. Writ dated June 2, 1927.
    In the Superior Court, the action was heard by Weed, J., without a jury. Material evidence before him and facts found and rulings made by him are stated in the opinion. He found for the plaintiff in the sum of $1,325.63. The defendant alleged exceptions.
    
      A. S. Howard, for the defendant.
    
      S. Baker, for the plaintiff.
   Crosby, J.

This is an action of contract to recover the purchase price of a carload of strawberries. The amended answer contains a general denial, payment, and sets up by way of recoupment that the plaintiff expressly warranted that the strawberries were to be of the best stock, and impliedly warranted that they were in proper condition to stand shipment from Van Burén, Arkansas, to Lowell in this Commonwealth, and to be in merchantable condition for resale at Lowell; that there was a breach of both warranties by the plaintiff which the defendant did not discover until after many of the berries had been sold by him, but that upon such discovery he gave the plaintiff opportunity to reclaim them, which was refused to the damage of the defendant. The case was tried before a judge of the Superior Court without a jury and is before this court upon exceptions taken by the defendant to certain findings and rulings. The findings contain all the evidence material to the issues raised by the bill of exceptions, except two exhibits annexed thereto marked “A” and “B”.

The judge made the following findings-: The plaintiff sold to the defendant a carload of strawberries, best stock,” upon the latter’s order by telegram, dated May 7, 1927, sent to the plaintiff at Van Burén, Arkansas, in the .following form: “Ship car tomorrow. Best stock. Lowest price possible.” The berries were delivered to the American Railway Express f.o.b. Van Burén, for shipment to the defendant in Lowell, on the evening of May 8, 1927. The price charged was fair, and the defendant has not paid the plaintiff for the berries. These findings dispose of the issues raised by the general denial and the plea of payment.

The judge further found that “the car was not delayed in transit, and that the condition in which the berries were found upon arrival in Lowell was not due to the fault of the carrier.” He rightly found that the contract was made in Arkansas, Milliken v. Pratt, 125 Mass. 374, 375, 376. Stone v. Old Colony Street Railway, 212 Mass. 459,462,463, Walling v. Cushman, 238 Mass. 62, 65, and is therefore governed respecting its interpretation by the law of that State. Montreal Cotton & Wool Waste Co. Ltd. v. Fidelity & Deposit Co. of Maryland, 261 Mass. 385, 390. It was also found that the uniform sales act was not in force in Arkansas at the time of the sale here in question.

The question presented is, whether in view of the terms of the contract there was an express warranty and, if so, whether there was a breach of it, damages resulting from which the defendant was entitled to recoup. It is manifest that under the law of Arkansas the acceptance of the goods is not a bar for breach of an express warranty. Keith v. Fowler, 169 Ark. 176. O’Leary Produce Co. v. Pride, 170 Ark. 516. In the present case there was an express warranty that the berries were to be “best stock.” The judge ruled, however, that this warranty related only to the grading of the berries and that there was no breach thereof.

It is the contention of the defendant that the warranty was not limited to the grading of the berries, but that it was also a warranty of their quality. It appeared in evidence that the inspectors of the United States department of agriculture at the place of shipment graded “375 crates ‘U. S. No. IV and 52 crates ‘Ark. No. 2’s’, and found as to quality and condition, ‘berries generally ripe, firm, fairly well colored and clean; defects within tolerance — chiefly soft and bruised berries with less than 1% decay.’ ” The judge found: “It is a custom of the trade in Arkansas to grade strawberries as ‘U. S. No. IV and ‘Ark. No. 2V . . . ‘IT. S. No. 1’ means berries not under % inch in diameter, not overripe nor underripe nor under developed, free from rot and mold or foreign matter or blemishes or mechanical injuries with a 10 per cent tolerance as to size and 5 per cent as to other standards. ‘Ark. No. 2’ means merchantable berries not up to No. 1 and containing not over 8 per cent defects of any description.” The record recites that an expert called by the defendant testified “that strawberries which had suffered preshipment injury, either mechanical or from overheating, did not ‘come in the trade within the description of best stock.’ But no evidence other than this was offered to show that the words ‘best stock’ had any special or peculiar significance in the trade in Arkansas at the time of the sale.” The judge having found that there was no evidence, other than that of the expert above referred to, that the words “best stock” had any special or peculiar significance in the trade in Arkansas, these words are to be interpreted as commonly understood and used. The word “best” as applied to things is defined as having good qualities in the highest degree; excellent in quality. We are of opinion that the goods sold to the defendant under an express warranty that they would be of “best stock” related not only to grading but to quality, and that the judge should have so ruled. He found that the berries had suffered preshipment injury from overheating. In view of this finding and the undisputed evidence that a large percentage of them was soft, moldy and unfit for human consumption, it follows that the defendant’s exception to the ruling, in effect, that the warranty related solely to the grading of the berries, and the exception to the granting of the plaintiff’s first request, that upon all the evidence the plaintiff is entitled to recover, must be sustained.

As it was found that the berries had suffered from preshipment injury due to overheating, there was a breach of the express warranty that they would be “best stock.”

In view of the conclusion reached that there was an express warranty which included a warranty of quality as well as of grading, the question, whether there was a breach of an implied warranty need not be considered.

It is stated by the judge that, if his ruling that the express warranty related solely to grading was wrong and there was a breach of the express warranty, then he finds upon the evidence that the damages suffered by the defendant by reason of such breach exceed the amount due the plaintiff from the defendant for the berries. The defendant however cannot recover such excess in the present action. Bryne v. Dorey, 221 Mass. 399, 405.

The exceptions must be sustained, and in accordance with G. L. c. 231, § 124, judgment is to be entered for the defendant.

So ordered.  