USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 96-1605
HAROLD PHILIPS,
Plaintiff, Appellant,
v.
NORTHROP & JOHNSON,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge] ___________________
____________________
Before
Cyr, Circuit Judge, _____________
Aldrich and Campbell, Senior Circuit Judges. _____________________
____________________
Norman Ross on brief for appellant. ___________
Merrill D. Goldfarb with whom Katz & Goldfarb was on brief for ____________________ ________________
appellee.
____________________
January 14, 1997
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ALDRICH, Senior Circuit Judge. Plaintiff Harold _____________________
Philips, desirous of beginning a charter fishing operation
out of his home port in St. Maarten, Netherlands Antilles,
contracted to buy a boat, offered through a yacht broker in
Massachusetts. After the purchase was complete he embarked
on the voyage home only to discover she was structurally
unsound. He sued the broker, Northrup & Johnson (hereinafter
defendant), under the Massachusetts Uniform Commercial Code
("UCC"), Mass. Gen. L. ch. 106, and Mass. Gen. L. ch. 93A,
the consumer protection statute. At the close of plaintiff's
case the court granted defendant's motion for judgment as a
matter of law. Plaintiff appeals. We affirm.
I. Background __________
Early in 1994, plaintiff began perusing yachting
magazines in search of an appropriate boat. He made contact
with defendant's employee, George Georges ("Georges"), who
provided him with information on several vessels. In
September, plaintiff arranged to inspect a used 48-foot Egg
Harbor sports fishing boat. On September 26, accompanied by
his brother, Georges, and Frederick C. Rhodes ("Rhodes"), the
boat's owner, plaintiff engaged in a so-called sea-trial in
the Gloucester, Massachusetts harbor. Forthwith he signed a
purchase and sale agreement and gave defendant a deposit of
$13,000. The agreement gave plaintiff two days from that
date to conduct a survey of the boat and accept or reject it,
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closing to be a month later. It also contained a provision
disclaiming any express or implied warranties.
Plaintiff testified that when he discussed the need
for a survey, Georges discouraged him, urging him instead to
accept a survey Rhodes had commissioned a year earlier.
Plaintiff agreed but requested that Georges arrange insurance
for the voyage home. (How plaintiff thought insurance could
be so readily obtained is one of the mysteries in this case.)
It was agreed that the closing would not take place in
plaintiff's absence.
In due course plaintiff wired $117,000, the
balance of the purchase price, into defendant's escrow
account. Thereafter, in spite of plaintiff's availability
and Georges' previous assurances, the closing took place,
defendant paying over the money without plaintiff's
permission, or his presence. On learning this, and that
defendant had not obtained the requested trip insurance,
plaintiff expressed his anger but later that evening had
dinner with Georges. The next day, without remonstrances, he
took possession of the boat and departed for St. Maarten.
Four days later, off the coast of Connecticut, the boat, made
of fiberglass, began to "flex." Consulting engineers later
determined that she was "hopelessly unseaworthy."
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II. The Issues __________
At the start of the two day bench trial, the court
determined that the sole issue was whether defendant had the
authority to disburse plaintiff's money. Although this would
appear to be somewhat less than the allegations raised in the
complaint, (and, indeed, some of the evidence received),
plaintiff agreed with the court that this was "the main
issue." We take "main" to mean "basic." At the same time,
because it is difficult to think plaintiff was not woefully
taken advantage of overall by defendant, we will deal briefly
with other matters.
III. Discussion __________
A district court's entry of judgment as a matter of
law is subject to de novo review. Accordingly, we must
determine whether the record, when viewed in the light most
favorable to the plaintiff, provides support for a finding
in his favor by the trier-of-fact. Schultz v. Rhode Island _______ ____________
Hospital Trust Nat'l Bank, N.A., 94 F.3d 721, 726 (1st Cir. ________________________________
1996).
A. UCC Claims __________
First, Mass. Gen. L. ch. 106, 2-314 provides an
implied warranty of merchantability for all consumer goods or
services.1 Once the implied warranty attaches, any express
____________________
1. Section 2-314 provides in relevant part:
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disclaimer contained in an agreement is void. Mass. Gen. L.
ch. 106, 2-316A.2 In order to prevail under this claim,
however, plaintiff must show that the seller of the boat was
"a merchant with respect to goods of that kind." Mass. Gen.
L. ch. 106, 2-314. Therein lies plaintiff's difficulty.
Because the statute does not extend to sales between private
individuals, Rhodes, the seller of the boat, is beyond its
reach. Plaintiff therefore attempts to place defendant in
the position of "seller," instead of broker.
We have been unable to discover any Massachusetts
case law that would allow us to perform this sleight-of-hand.
Plaintiff's reliance on the "undisclosed principal" theory is
misplaced. The question of whether a party is an undisclosed
principal is not, as plaintiff would have it, a question of
which party an agent represents at any given point, but
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(1) Unless excluded or modified by
section 2-316, a warranty that the goods
shall be merchantable is implied in a
contract for their sale if the seller is
a merchant with respect to goods of that
kind.
2. Section 2-316A provides in relevant part:
Any language, oral or written, used by a
seller or manufacturer of consumer goods
or services, which attempts to exclude or
modify any implied warranties of consumer
goods and services, which attempts to
exclude or modify any implied warranties
of merchantability and fitness for a
particular purpose or exclude or modify
the consumers' remedies for breach of
those warranties, shall be unenforceable.
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rather whether the representation and the principal's
identity were disclosed. Atlantic Salmon A/S v. Curran, 32 ___________________ ______
Mass. App. Ct. 488, 492 (1992). On cross-examination
plaintiff admitted that he knew Rhodes was the seller of the
boat and that he understood the difference between a broker
and a seller. Moreover, the agreement plaintiff signed
expressly names Rhodes as the seller as well as naming
defendant as both the listing and selling broker. While
plaintiff may well have been confused about which party
defendant represented at any particular time,3 it can in no
way be said that the identity of a principal was
"undisclosed." No reasonable trier-of-fact could find
otherwise. We therefore find that defendant is not the
seller of the boat within the meaning of 2-314 and the
implied warranty of merchantability is inapplicable.
B. Chapter 93A Claims __________________
Plaintiff maintains that defendant engaged in
unfair trade practices prohibited under Mass. Gen. L. ch. 93A
by disbursing his money to the seller without permission.
The court, without any disagreement on plaintiff's part,
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3. We note that the plaintiff did not argue here or below
the theory that dual representation requires an agent
representing adverse parties to notify both parties of the
representation and obtain consent. Jerlyn Yacht Sales, Inc. ________________________
v. Wayne R. Roman Yacht Brokerage, 950 F.2d 60, 64 n.1 (1st _______________________________
Cir. 1991).
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treated this as a question of agency and assumed that
defendant wasplaintiff'sagentforthepurposesofthistransaction.
Plaintiff contends that the court erred in
finding that plaintiff "waived" both Chapter 93A and UCC
claims by having dinner with Georges and taking possession of
the boat. What the court actually ruled, however, was that
plaintiff's actions (or non-actions) ratified his agent's
conduct.
Under Massachusetts law, a principal ratifies his
agent's unauthorized act if, after discovering it, the
principal makes no effort to repudiate. Irving Tanning Co. ___________________
v. Shir, 295 Mass. 380, 384 (1936). Ratification may be ____
express or implied. Inn Foods, Inc. v. Equitable Co- _________________ _____________
operative Bank, 45 F.3d 594, 597 (1st Cir. 1995). Plaintiff _______________
admitted that, when given the closing papers after the fact,
he made no attempt to undo defendant's actions and even had a
pleasant dinner with Georges that evening. Rather than
demanding his money back, he took the boat the next day,
without insurance, and departed on the first leg of his trip.
Based on this conduct we cannot say that the ruling of
ratification was erroneous. Plaintiff presents a sympathetic
case, but his failure to act on his dissatisfaction is fatal.
Affirmed. ________
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