Mosler Safe Co. v. Thore

217 Mass. 153

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1914
• Status: Published

Opinion

De Courcy, J.

The plaintiff sold three safes to the defendant, and at his order delivered them to the town of North Andover. The written proposal of the plaintiff contained the clause, “It is also agreed and understood that these safes will pass the inspection of Mr. Wood.” In this action for the unpaid balance of the purchase price the only defense alleged is that the safes have not been inspected by Mr. Wood, who was the commissioner of public records.

On the facts found and stated in the report, the defendant was not entitled to the rulings requested. The judge expressly found that Mr. Wood did pass and approve the safes. Mr. Wood himself testified that he was sufficiently familiar with the standard kind of safes described in the letter of proposal to enable him to pass and approve them without a personal inspection of them, and that he did so. This was a compliance with the contract. Further the chairman of the selectmen testified that the safes were in use by the town and were satisfactory; and the defendant himself paid part of the purchase price without demanding an inspection. Plainly it could be found that the defendant waived any right he had to have the safes pass the inspection of Mr. Wood, even assuming that the inspection was a condition precedent to the plaintiff’s right to recover. On the plaintiff’s motion double costs are awarded from the time when the appeal was taken, and the order dismissing the appeal is affirmed.

So ordered.