Acorn Silk Co. v. Herscovitz

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 paroi evidence to cover the alleged representations. Boston Consolidated Gas Co. v. Folsom, *555 237 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.