
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR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                                 ____________________                      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,                                         -2-            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."                                         -3-                                   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:                                         -4-            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                                            ____________________                      (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.                                         -5-            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,                                            ____________________            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).                                         -6-            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.                      ________                                         -7-
