Sale, Warranty, Rescission.
Where, from a report by the trial judge of the trial of an action for the purchase price of goods sold, it appears that each party to the action is described as having a usual place of business in Boston in this Commonwealth and it nowhere appears where the contract was made or was to be performed, the rights of the parties are to be determined by the sales act of this Commonwealth, G.L.c. 106.
One, who purchased silk dress goods by sample and by a trade name and under a contract in writing that contained no express warranty, used part of the goods, and then attempted to return the remainder and rescind the contract on the grounds that the colors ran and that the sales agent had stated to him that the trade name under which the goods were sold "indicated" that the seller "guaranteed goods so marked as fast colors," has, by reason of G.L.c. 106, § 17, cl. 4, no defence to an action for the purchase price, and, there being no implied warranty, he cannot recover damages by way of recoupment.
BRALEY, J.
This is an action of contract to recover the price of an invoice of silk dress goods. The parties are described as doing business in Boston in this Commonwealth, and their rights are to be determined by our sales act, G.L.c. 106. The goods were sold under the trade name of "Asco" silk and, after having kept or used nearly one half of the shipment, the defendants claimed that the colors ran, and endeavored to rescind by a tender of the remainder of the invoice which was refused. It was further claimed that the plaintiff's agent, when the sale was negotiated by sample, "informed defendants that the word 'Asco' was a trade mark of the plaintiff and indicated that the . . . Company guaranteed the goods so sold as fast colors." The contract however, which was in writing, contains no express warranty. It cannot be changed by parol evidence to cover the alleged representations. Boston Consolidated Gas Co. v. Folsom, 237 Mass. 565, 568. And by force of the statute, § 17, cl. 4, there is no implied warranty entitling the defendants to damages under their answer in recoupment. Stoehrer Pratt Dodgem Corp. v. Greenburg, ante, 550.
The question, whether the contract was entire and the defendants therefore by keeping or using part of the goods cannot rescind and are liable for the purchase price, is immaterial. See Shohfi v. Rice, 241 Mass. 211.
The verdict for the plaintiff, the amount of which, if it is entitled to recover, is not disputed, was ordered rightly, and the entry must be
Judgment on the verdict.