City Welding & Manufacturing Co. v. Gidley-Eschenheimer Corp.

451 N.E.2d 734, 16 Mass. App. Ct. 372, 36 U.C.C. Rep. Serv. (West) 846, 1983 Mass. App. LEXIS 1406
CourtMassachusetts Appeals Court
DecidedJuly 18, 1983
StatusPublished
Cited by20 cases

This text of 451 N.E.2d 734 (City Welding & Manufacturing Co. v. Gidley-Eschenheimer Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City Welding & Manufacturing Co. v. Gidley-Eschenheimer Corp., 451 N.E.2d 734, 16 Mass. App. Ct. 372, 36 U.C.C. Rep. Serv. (West) 846, 1983 Mass. App. LEXIS 1406 (Mass. Ct. App. 1983).

Opinion

*373 Dreben, J.

Sued for failure to pay for certain dump bodies and dump trailers, Gidley-Eschenheimer Corporation (GE) counterclaimed alleging breach of warranty. Although the manufacturing seller, City Welding and Manufacturing Co. (City), recovered on its contract claims, the primary victor was GE. A consolidated judgment in its favor included among other items, $84,500 for lost profits and damages of $8,772 based on a judgment recovered by a customer against GE. City does not contest the judge’s findings of breach of warranty or the finding of delayed delivery. Its appeal rests on claims that GE failed to give timely notice of City’s breach of warranty; that GE failed to satisfy its burden of proof as to loss of profits; that damages should not have been awarded based on the judgment against GE; and that oral statements varying the contract documents were improperly admitted in evidence. We affirm.

1. Notice of breach. Relying on the acceptance of the goods by GE, City avers that the record is devoid of any notice of an assertion of a legal right by GE or a claim of breach of warranty as required by G. L. c. 106, § 2-607(3)(a). City misapprehends the statutory requirement. In the face of the series of complaints to City by GE and its customers, City is not entitled, as matter of law, to a finding that the notice was inadequate. The case relied upon most heavily by City, Eastern Air Lines v. McDonnell Douglas Corp., 532 F.2d 957, 973 (5th Cir. 1976), points out that the adequacy and timeliness of notice “depend upon the reasonableness of the buyer’s efforts to communicate his dissatisfaction” and, therefore, “whether the notice requirement has been complied with is a question which is particularly within the province of the [fact finder].” Massachusetts law is in accord. Nashua River Paper Co. v. Lindsay, 249 Mass. 365, 371 (1924). Guthrie v. J.J. Newberry Co., 297 Mass. 245, 249-250 (1937).

In addition to evidence of specific complaints about City’s failure to comply with specifications (e.g., goose neck hinges, twelve-leaf springs, length of hoist), and City’s failure to deliver on time, there was evidence that City was informed of *374 the serious problems of unsteadiness and tipping over of the equipment which customers 1 of GE who had bought the trailers and bodies were having. Moreover, City met with some of these customers concerning their claims and, on at least one occasion, held a conference with lawyers of GE and a customer at which problems of several purchasers were discussed.

On this evidence the judge was warranted in finding that the defects in the dump equipment “were early brought to the attention of [City] in such a way that sufficient notice of the breach of warranty was substantially and seasonably given.” Mastercraft Wayside Furniture Co. v. Sightmaster Corp., 332 Mass. 383, 387 (1955). The number and seriousness of the complaints, which covered a substantial period of time, could provide sufficient notice even if unaccompanied by an express assertion of legal rights. Lieberman v. W.M. Gulliksen Mfg. Co., 332 Mass. 439, 443 (1955). See Nashua River Paper Co. v. Lindsay, 242 Mass. 206, 210 (1922). See also comment 4 to § 2-607 of the Uniform Commercial Code (Am. Law Inst., 1962 Official Text with Comments), cited with approval in Nugent v. Popular Mkts., Inc., 353 Mass. 45, 48-49 (1967).

2. Loss of profits. Testimony of customers and of Paul Eschenheimer provided ample basis for the judge’s conclusion that there was a causal connection between the problems with City’s equipment and GE’s loss of business reputation and profits. Dyecraftsmen, Inc. v. Feinberg, 359 Mass. 485, 488 (1971). See Ricky Smith Pontiac, Inc. v. Subaru of New England, Inc., 14 Mass. App. Ct. 396, 422 (1982).

Not only was the causal relationship established, but we think the quantification of profits was not so speculative or uncertain as to preclude their recovery. See Neal v. Jefferson, 212 Mass. 517, 523-524 (1912), where lost profits of a Florida hotel for winter visitors were recovered for the second and third years of operation although no profits were earned in the first year. See also Rombola v. Cosindas, 351 *375 Mass. 382, 386 (1966), allowing a claim for lost profits of a race horse. Both cases allowed experts to testify as to the extent of these lost profits. See also McCormick, Damages § 29 (1935).

Here, the trial judge, in his discretion, permitted Paul Eschenheimer, GE’s president, to testify as an expert to show lost profits. Eschenheimer’s experience in sales and repairs, his membership and holding office in several trailer organizations, his experience as an appraiser of trailers and dump bodies, his awareness of the general level of sales of dump equipment in Massachusetts, and his knowledge of the share of the market held by GE warranted the judge’s finding that Eschenheimer was qualified as an expert on lost profits. Winthrop Prod. Corp. v. Elroth Co., 331 Mass. 83, 85-86 (1954). Agoos Leather Cos. v. American & Foreign Ins. Co., 342 Mass. 603, 606 (1961). Matsushita Elec. Corp. of America v. Sonus Corp., 362 Mass. 246, 264-265 (1972). See Ricky Smith Pontiac, Inc. v. Subaru of New England, Inc., 14 Mass. App. Ct. at 425.

It is true that Eschenheimer did not give the basis of his calculations, but, under our cases, this omission merely goes to the weight of his opinion and not to its admissibility, at least where the opinion is based on personal knowledge or observation. Greene v. Cronin, 314 Mass. 336, 340-344 (1943). Commonwealth v. Vaughn, 329 Mass. 333, 335 (1952). See Sexton v. North Bridgewater, 116 Mass. 200, 207 (1874). See also Liacos, Massachusetts Evidence 114 (5th ed. 1981); 2 Wigmore § 675 (Chadbourn rev. 1979).

Accordingly, we conclude that the evidence of lost profits, while somewhat meager, was sufficient to support the judge’s findings. See Agoos Leather Cos. v. American & Foreign Ins. Co., 342 Mass. at 608; see also Matsushita Elec. Corp. of America v. Sonus Corp., 362 Mass. at 264, citing comment 1 to § 1-106 of the Uniform Commercial Code 1 U.L.A. (Mastered. 1976).

3. Judgment obtained against GE. The trial judge admitted in evidence a judgment obtained against GE by a customer (Fontaine) on account of purchases from GE of *376 three trailers supplied by City.

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451 N.E.2d 734, 16 Mass. App. Ct. 372, 36 U.C.C. Rep. Serv. (West) 846, 1983 Mass. App. LEXIS 1406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-welding-manufacturing-co-v-gidley-eschenheimer-corp-massappct-1983.