279 Mass. 163 | Mass. | 1932
This action, originally in tort, was subsequently amended to an action of contract to recover damages for injuries sustained to the plaintiff’s hands. The declaration was also amended by a discontinuance of counts 1 and 2. In count 3 the plaintiff in substance alleged that the defendant sold her a certain cleaner for white sfco'es with an express warranty “that the same was fres from
The bill of exceptions contains all evidence material to the issues raised thereby. The facts in their aspect most favorable to the plaintiff’s contention, which the jury could warrantably find, are as follows: The plaintiff, who had never had any eruption or trouble with her hands or skin before June 26, 1926, on that day accompanied by her sister went to the store of the defendant to purchase a cleaner for white shoes. At a counter there were two salesgirls and she asked one of them whether she had “Opeechee White Shoe Cleaner.” The girl addressed replied that “she did not have that brand and she took up . . . [a] bottle
At the close of the trial, after the defendant had rested, the plaintiff recalled her sister who had accompanied her when she purchased the cleaner at the defendant’s store. She testified “that she went back to the defendant’s store about a week later and saw the same saleslady; that . . . [the plaintiff] told her to go and tell the salesgirl about the cleanser, how it injured her hands, so other people would be careful, could be careful and that she did it.”
Without decision, for the purpose of this case we assume the salesgirl had implied authority to commend the effective qualities of the cleaner offered for sale, because such power was reasonably necessary to bring about sales of articles similar to that sold the plaintiff. On the facts which might
Assuming the authority of the salesgirl and a breach of the contract of sale, express or implied, we nevertheless are of the opinion that the verdict was rightly ordered entered for the defendant, because the plaintiff failed to prove that she gave proper and sufficient notice of the breach of warranty within a reasonable time after she knew or ought to have known of such' breach. The giving of notice of an alleged breach of warranty to a seller within a reasonable time, as required by G. L. c. 106, § 38, is intended for the protection of the seller against belated claims for damages. When a purchaser wishes to avail himself of an alleged breach of warranty, the notice of the breach required by G. L. c. 106, § 38, to be given to the seller must refer to particular sales, must fairly advise the seller of the alleged defect, and specify with reasonable particularity in what the breach consists, and must be such a notice as to repel the inference of waiver. The notice “need not necessarily take the form of an express claim for damages or threat of such, [but] it ought to be reasonably inferable therefrom that the buyer is asserting a violation of his legal rights.” Nashua River Paper Co. v. Lindsay, 249 Mass. 365, 370. The evidence as to the circumstances attending the giving of the
So ordered.