Opinion
No. 4003.
March 6, 1951.
Where leather-cutting dies were ordered of a manufacturer by merely specifying their size and shape leaving to the manufacturer's judgment the method of construction and materials to be used in the making of the specialized product, there is an implied warranty of their fitness. In the absence of requests for findings the Trial Court need not state with particularity the exact method by which the verdict was reached.
ASSUMPSIT, to recover $2,056.08 from the defendant for certain dies sold it by the plaintiff. Trial by the Court resulting in a verdict for the plaintiff for $1,493.71. The plaintiff excepted to the admission and exclusion of evidence, to the denial of its motions for a directed verdict and to set aside the verdict as against the law and the evidence. The defendant, invoking a breach of an implied warranty of fitness, claimed that the dies sold it by the plaintiff which were to be used to cut leather and linings for shoes were defective. The record shows that the cutting was done on a wooden block. On this the leather or lining was placed, then the die was put on top of the leather and a clicker machine, so called, struck the die a blow. The defendant claimed the dies either did not cut cleanly or else pierced the leather and became embedded in the wood causing delay and trouble in removing them.
Transferred by Leahy, J. Other facts appear in the opinion.
J. Morton Rosenblum (by brief and orally), for the plaintiff.
Hughes Burns (Mr. Donald R. Bryant orally), for the defendant.
The plaintiff claims first, there was no evidence of an implied warranty of fitness, second, if such warranty existed that the defendant did not sustain its burden of proving a breach and lastly that the amount of the verdict is unwarranted. We believe these contentions cannot be sustained and that the verdict must be upheld. The record shows there was only one purpose for which these dies were to be used, that such purpose was obvious and known to the trade and the parties. The defendant in ordering the dies specified only their size and shape. The method of manufacture, the material and the delicate task of tooling an edge which would cut the leather or lining without sticking in the block were left entirely to the plaintiff. The facts differ materially from those in Gregg v. Company, 69 N.H. 247, relied upon by the plaintiff where as the Court said (page 249) "The plaintiffs directed the size and method of constructing the belt. They relied upon their own judgment, not upon that of the manufacturers." The defendant was not a die maker but only a buyer of this highly specialized product from the plaintiff upon whose skill and judgment it had to rely. Under all the circumstances we believe the Court's holding that an implied warranty of fitness existed was sound. R. L., c. 200, s. 15, par. I.
It also appears on all the evidence that the defendant has sustained its burden of showing a breach of the implied warranty. The record shows that the same type of die bought from other manufacturers, used by the same person on similar material and under like circumstances cut satisfactorily. The testimony suggests that if dies are either too sharp or too dull they are unfit for cutting. There was evidence that the plaintiff on several occasions took the dies back to its factory to sharpen or otherwise fix them. We believe upon all the facts the Court could properly find a breach of the implied warranty of fitness.
The plaintiff's final contention is that the amount of the verdict cannot be reconciled with the proof. There was conflicting evidence regarding the shipments and types of dies in question and the Court was at liberty to accept or reject all or any portion of the parties' claims regarding these items. Giguere v. Railroad, 86 N.H. 294, 298. The questions of interest and delivery charges were also involved. There were no requests for findings and it is not necessary for the defendant to be able to point out the exact method by which the Court reached its verdict since it cannot be said that it is not in accordance with the evidence. See Young v. Dow, 93 N.H. 210, 212. It follows the plaintiff's exception must be overruled and the order is
Judgment on the verdict.
JOHNSTON, C. J., was absent: the others concurred.