260 Mass. 105 | Mass. | 1927
The jury on conflicting evidence warrantably could find the following facts. The plaintiff, an illiterate shoemaker, was operated on for tonsilitis in the latter part
The trial judge rightly directed a verdict for the defendant on the first and second counts of the amended declaration. There was no evidence that the defendant negligently compounded, and delivered to the plaintiff a medicine different from Dr. Cohen’s prescription, or that the defendant, his servants or agents, were guilty of gross negligence in representing to the plaintiff “that the substance theretofore compounded” was the same as the medicine prescribed. Altman v. Aronson, 231 Mass. 588, 591.
The judge also rightly declined to order a verdict for the defendant on the third count which rests upon the alleged representations of the defendant, that the compound in the bottle as to its medicinal ingredients was the same as those called for in the prescription. The defendant is bound by the representations of Costanza, who was in charge of the pharmacy with authority to compound and sell medicines. Gerrish Dredging Co. v. Bethlehem Shipbuilding Corp. Ltd. 247 Mass. 162. See G. L. c. 112, §§ 27, 31, 38, 39, 41. The representations were not gratuitous, as the defendant contends. They were part of the negotiations for a proposed purchase, and sale which Costanza was authorized to make, and proof of actual knowledge by him that the representations were false, and that he intended to deceive the plaintiff was unnecessary. The affirmative statements of Costanza, the jury could find, under instructions to which no exceptions were taken, were made not as matter of opinion, or as an
We have considered the exceptions of each party in so far as argued and the entry must be,
Plaintiff’s exceptions overruled.
Defendant’s exception overruled.