J.S.B. Industries, Inc. v. Bakery Machinery Distributors, Inc.

1995 Mass. App. Div. 2, 1995 Mass. App. Div. LEXIS 2
CourtMassachusetts District Court, Appellate Division
DecidedJanuary 6, 1995
StatusPublished

This text of 1995 Mass. App. Div. 2 (J.S.B. Industries, Inc. v. Bakery Machinery Distributors, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.S.B. Industries, Inc. v. Bakery Machinery Distributors, Inc., 1995 Mass. App. Div. 2, 1995 Mass. App. Div. LEXIS 2 (Mass. Ct. App. 1995).

Opinion

Summerville, J.

At trial, the plaintiff, J.S.B. Industries, Inc., (“J.S.B.”), sought to recover damages under a contract for the sale and installation of a commercial oven purchased from the defendant, Bakery Machinery Distributors, Inc. (“BMD”). The plaintiffs complaint alleged fraud and deceit, breach of contract, warranty, misrepresentation and false and deceptive trade practices pursuant to M.G.L.c. 93A

The defendant filed an answer and counterclaim in the amount of twenty-six thousand dollars ($26,000) which was alleged to be the unpaid balance due under the sales contract. The defendant included a second counterclaim for seven thousand, eight hundred dollars ($7,800) as fair and reasonable compensation for additional labor costs incurred as a result of plaintiffs failure to provide two unskilled helpers to assist in the installation of the oven as provided by contract.

After a one day trial, the judge found against the plaintiff as to all its claims and for the defendant on its counterclaim for the outstanding balance due under the sales contact. Defendant’s counterclaim for the additional labor expense was denied.

In the report, the plaintiff appeals from the denial of seven rulings that were properly saved by requests for rulings made prior to argument. The plaintiff has also raised several issues in its brief that are unrelated to the rulings of law reported by the trial judge. A report to the Appellate Division normally requires only consideration of rulings and questions of law made by the trial judge. Eliot v. Warwick Stores, Inc., 329 Mass. 406 (1952). Nevertheless, we shall address the issues raised in the brief insofar as they are related to the findings of the trial judge.

We affirm the denial of all seven rulings on the basis that the requested rulings are inapplicable to the facts found by the trial judge. See, Snyder v. Rosen, 342 Mass. 116, 118 (1961). Accordingly, the report is dismissed.

FACTS

The trial judge made extensive findings of fact based upon the credible evidence which included the following. The parties entered into a contract on January 30, 1989 for the sale and installation of a commercial oven. A four-page written sales contract, including annexed drawings, were attached as exhibits to the judge’s report. The contract was drafted by the defendant and signed by Mr. John Anderson as president of the plaintiff corporation. The oven was described in the contract as a “three-deck, Benini model tunnel oven” designed for the baking of muffins and cakes. The purchase price was stated as two hundred and sixty thousand dollars ($260,000), which included assembly and installation of the oven at [3]*3plaintiffs place of business. Payment terms required the plaintiff to pay 25% of the purchase price with the signing of the contract, 65% upon notification of shipment, with the remaining 10% payable 30 days after start-up.

The report states that the oven was installed in May, 1989. The remaining 10% balance due after installation, which was the subject of the defendant’s counterclaim, was never paid by the plaintiff.

The plaintiffs claim for breach of contract relates to the heating capacity of the gas burner section of the oven. Plaintiff contends that it bargained for a two-stage burner with a heating capacity of 1,000,000 B.T.U.’s. The report states that the plaintiff, in fact, received a one-stage1 oven with a heating capacity of 750,000 B.T.U.’s.

The first page of the contract described the oven as:

BMD/Benini Mondail Malic 90 Oven, Model #SC7/240, 3-deck Tunnel Oven (No steam) to be supplied with belting for infeed and discharge conveyor system with One (1) Midco burner-2-stage burner, natural gas fired. Operating range — 1 million BTU’S. (emphasis added).

However, the last page of the contract included a provision that expressly referred to a blueprint drawing of the oven:

BMD is attaching hereto, and making part of this contract a layout drawing #P-79-0-B, which depicts the equipment layout in customer’s bakery. It is understood between the two parties of this contract, that there may be some alterations or changes in drawing due to possible changes in modifications necessary to the building in order to facilitate in this alteration, (emphasis added).

On the basis of this provision, the trial judge found in her report that the blueprint drawing #P-79-0-B was incorporated by reference into the contract. The blueprint drawing #P-79-0-E,2 included in the report, shows what appears to be the layout of the plaintiff’s work space with diagrams and numeric notations indicating the size and capacities of the various components of the oven. At the left center of the drawing is a line drawn through a square area which depicts the location of the tunnel oven. The notation above the line reads: “Gas, 780,000 B.T.U.’s.” Reading both the contract and the annexed drawing together, the trial judge found the heating capacity required under the contract to be 780,000 B.T.U.’s rather than 1,000,000 B.T.U.’s. On this basis, the trial judge concluded that the plaintiff’s claim of breach amounted to a difference of 30,000 B.T.U.’s — between the 780,000 B.T.U.’s required by the contract and the 750,000 B.T.U. burner received.

Plaintiff claims that it notified the defendant of its dissatisfaction with the heating capacity of the oven by phone as soon as the problem was discovered and that [4]*4it withheld the remaining $26,000 due under the contract pending a satisfactory-resolution of the issue. However, the trial judge found in her detailed findings that “[the plaintiff] did not complain of the burner’s deficient B.T.U. capacity until six months [after installation] and only after being dunned repeatedly by [the defendant] for the balance due under the contract.”

Finding that the plaintiff did not attempt revocation of acceptance until more than six months after installation of the oven, the judge applied G.L.c. 106, §2-607 (3) (a) to dismiss the plaintiffs claim of breach of contract.

DISCUSSION

We agree with the trial judge that the decisive issue of law in the instant case is the reasonableness of the length of time taken by the plaintiff to revoke acceptance once they discovered, or should have discovered, the non-conformity in the oven purchased from the defendant. G.L.c. 106, §2-607 (3) (a) states:

Where a tender has been accepted the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy!.]

It is clear from the contents of the report that the judge properly instructed herself on the law before making her findings of material fact. Citing P & F Construction Corp. v. Friend Lumber Corp., 31 Mass. App. Ct. 57, (1991), (where notice of rejection of non-conforming prefabricated door units 3-1/2 months after delivery was deemed unreasonable), the judge concluded that the attempted revocation of acceptance of the oven six months after installation was unreasonably late under the circumstances. “Generally, the timeliness of a notice of displeasure with the goods is a question to be determined by the fact finder because whether notice is sufficiently prompt is a function of what was reasonable in the commercial circumstances.” Id., at 59. “Findings of fact are not reviewable by the appellate division.” Croshere v.

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Related

Snyder v. Rosen
172 N.E.2d 111 (Massachusetts Supreme Judicial Court, 1961)
Delano Growers' Cooperative Winery v. Supreme Wine Co.
473 N.E.2d 1066 (Massachusetts Supreme Judicial Court, 1985)
Elliott v. Warwick Stores, Inc.
108 N.E.2d 681 (Massachusetts Supreme Judicial Court, 1952)
P & F Construction Corp. v. Friend Lumber Corp. of Medford
575 N.E.2d 61 (Massachusetts Appeals Court, 1991)
Axion Corp. v. G. D. C. Leasing Corp.
269 N.E.2d 664 (Massachusetts Supreme Judicial Court, 1971)
Standard Sanitary Manufacturing Co. v. Hartfield Realty Co.
188 N.E. 220 (Massachusetts Supreme Judicial Court, 1933)
Sasinowski v. Boston & M. R. R.
74 F.2d 628 (First Circuit, 1935)
Hall v. Cataldo
37 Mass. App. Dec. 55 (Mass. Dist. Ct., App. Div., 1967)
Parsons, Friedmann & Central, Inc. v. Daniels
37 Mass. App. Dec. 121 (Mass. Dist. Ct., App. Div., 1967)
Adkins v. Armata
56 Mass. App. Dec. 50 (Mass. Dist. Ct., App. Div., 1975)
Croshere v. Regional Restaurant, Inc.
25 Mass. App. Dec. 158 (Mass. Dist. Ct., App. Div., 1963)
Associated Electric Co. v. E. J. Kelley Co.
44 Mass. App. Dec. 1 (Mass. Dist. Ct., App. Div., 1970)

Cite This Page — Counsel Stack

Bluebook (online)
1995 Mass. App. Div. 2, 1995 Mass. App. Div. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jsb-industries-inc-v-bakery-machinery-distributors-inc-massdistctapp-1995.