242 Mass. 446 | Mass. | 1922
The plaintiff brought this action to recover for injuries to her skin, alleged to have been caused by wearing a fur neck-piece purchased from the defendants in August, 1917. At the close of the evidence she waived the count based on negligence and that for false representations. The case was submitted to the jury on the count in contract, alleging a breach of warranty. While some of the language in this count points to an express warranty, it is apparent from the record that the trial proceeded upon the basis of an implied warranty that the fur piece was suitable for wear. The question raised by the report is whether the trial judge was justified in submitting the case to the jury.
The pertinent parts of the sales act (St. 1908, c. 237, see now G. L. c. 106), on which the rights of the parties depend, are these:
1 “Section 17. There is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:
"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill ■or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.”
“ (3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.”
The defendants admit that their salesman knew “the particular purpose” for which the fur neck-piece was required by the plaintiff. On the issue whether the plaintiff in making the purchase relied on the skill or judgment of the salesman (Riedel) these facts appear: she had been a customer of his for four or five years. At her first visit to the store in August she was shown a natural blue fox scarf, but considered it too expensive for her. The salesman then produced one of a pair of dyed blue fox skins; the other having been made up into a scarf, and being then in the hands of a salesman out on the road. At Riedel’s suggestion she postponed a decision and returned later, when she was shown the scarf. Her testimony was that Riedel selected it for her; and he testified that "She bought it on my recommendation.” We cannot say that there was no evidence for the consideration of the
As to breach of the implied warranty of fitness: There was no evidence or claim that the neck-piece was unfit for ordinary wear, except as it may have caused the irritation and eruption of the plaintiff’s skin. If this trouble were due to some noxious substance in the dyed fur, a neck-piece so infected might well be found unfit for the purpose for which it was required. Dushane v. Benedict, 120 U. S. 630, 636. Flynn v. Bedell Co. of Massachusetts, post, 450. Buttherecord fails to disclose such a case of external poisoning. The plaintiff produced no analysis of the dye, although the fur was in her possession. Of the many medical experts consulted by her, only one, Dr. Towle, appeared as a witness. He testified that the plaintiff had a skin “so hypersensitive that it reacts unduly to irritation of any sort;” and stated as his opinion that the plaintiff’s inflammation was due to “the length of the fur.” There was no evidence that the dye came off this neck-piece, or “crocked.” The only other testimony on this subject was that of Riedel, that he never knew dyes to come off of light furs, and that so far as he knew or had been able to learn from the furriers or dyers “there is nothing about the fur that is injurious to any normal person.” In short, there was no evidence to warrant a finding that the plaintiff’s injury was due to any poisonous or injurious substance in the fur, as alleged. On the contrary Dr. Towle testified: “From examination here of the furs the only thing I find about them which would cause a person trouble is the length of the fur and only to an abnormal person would that cause trouble.” Even if long hair on fox skin could constitute a “defect” within the meaning of the statute, it was obvious to the plaintiff. She examined the scarf, compared it with others, and put it about her neck. By the express terms of § 17, cl. 3 of the sales act, there is no implied warranty as regards such a “ defect.”
The plaintiff did not make out a case entitling her to go to the jury; and in accordance with the report the entry must be
Judgment for the defendants.
