Home ALFRED FESTA, trustee, vs. CLOSURE COMPANY, INC. (and a companion case [Note 1]).

14 Mass. App. Ct. 921

June 24, 1982

Alfred Festa ordered delivery and installation of twelve sliding glass doors and six kitchen windows from Closure Company, Inc. (Closure), for an apartment house which Festa was building in Revere. Some or all of the doors leaked, giving rise to Festa's action for damages and his refusal to pay Closure's bill. Closure brought an action for the value of its labor and materials. The trial judge entered a judgment in Festa's action requiring Closure to pay $1,000 and a judgment in Closure's action requiring Festa to pay $7,584.58. Each party has appealed. On the basis of the sketchy material in the record appendix, we take our facts entirely from the judge's findings, which, in any event, "shall not be set aside unless clearly erroneous." Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974).

The leaks occurred on a side of the building which faced the ocean. Although Closure knew in a general way where the building was located, the judge found that "there was no undertaking to provide a product especially designed for the unusual rigors of ocean-front conditions." Installation of a "storm sash unit" on each of the sliding doors stopped the leaks and thereafter the door units "functioned properly." The judge made no finding that the sliding doors were improperly installed or that the door units supplied would not have functioned properly under normal conditions.

In effect the judge found that the seller, Closure, at the time of contracting had no reason to know that the goods furnished, the door units, were required for a particular purpose. G. L. c. 106, Section 2-315. Gilbert & Bennett Mfg. Co. v. Westinghouse Elec. Corp., 445 F.Supp. 537, 548 (D. Mass. 1977). Cf. Dazien's Inc. v. Hodgman Rubber Co., 7 Mass. App. Ct. 901 (1979). The goods were merchantable for ordinary use. See G. L. c. 106, Section 2-314; Walsh v. Atamian Motors, Inc., 10 Mass. App. Ct. 828 (1980). We read the judge's reference to a "defect" in the sliding doors to mean that the doors, as installed, did not withstand the unusual wind and spray to which they were subjected. Closure had not been called upon to contend with those elements. On the basis of the findings

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no ground existed for the recovery of damage by Festa against Closure. The judgment on Closure's claim for labor and material is affirmed and judgment is to be entered for closure on Festa's claim for damages.

So ordered.


[Note 1] Closure Company, Inc. vs. Alfred Festa. Festa's complaint was filed in Suffolk County and that of Closure Company, Inc., in Middlesex County. The cases, which arose from the same facts, were tried together in Middlesex. As the trial judge observed, Closure's cause of action should have been raised as a counterclaim.