| Mass. | Dec 2, 1922
The evidence warranted the following findings: The plaintiff’s intestate, Inez M. Ireland, hereinafter called the plaintiff, went to a store of the defendant to purchase a jar of cold cream, and having asked for a particular kind that she had used, was informed by the clerk who waited upon her that the defendant did not have it in stock, but had “a cream of their own . . . which was superior to the one she had been using” and which was "pure and healthful;” relying on his recommendation she purchased two jars placed in cartons. Both cartons and jars were labelled “ Biker’s Violet Cerate for the Complexion, a Soothing,
The plaintiff bases the right to recover for the injury so sustained solely upon alleged breaches of the contract of sale, having waived any right to recover in tort. No question of pleading is. raised.
The statement that the cream was “pure and healthful” was an affirmation of fact and, having a natural tendency to induce the buyer to purchase the goods, it could have been found that she relied thereon; hence there was an express warranty that the cream was as stated. G. L. c. 106, § 14. Henshaw v. Robins, 9 Met. 83, 88. Brown v. Bigelow, 10 Allen, 242. Cavanaugh v. D. W. Ranlet Co. 229 Mass. 366" court="Mass." date_filed="1918-02-27" href="https://app.midpage.ai/document/cavanaugh-v-d-w-ranlet-co-6434315?utm_source=webapp" opinion_id="6434315">229 Mass. 366. Morse v. Moore, 83 Maine, 473.
A warranty of purity is broken if some foreign substance is: contained in the merchandise rendering its normal use dangerous. Flynn v. Bedell Co. of Massachusetts, 242 Mass. 450" court="Mass." date_filed="1922-07-10" href="https://app.midpage.ai/document/flynn-v-bedell-co-6435922?utm_source=webapp" opinion_id="6435922">242 Mass. 450, and cases, collected. It follows that the motion for a directed verdict- was properly denied, and the request for an instruction that the plaintiff on all the evidence was not entitled to recover was rightly refused.
The judge also submitted the case to the jury on instructions relating to an implied warranty. Such submission was proper. The jury could have found that no express warranty in fact was made, and if existent it did not negative an implied warranty unless, inconsistent therewith. An implied warranty or condition that goods are reasonably fit for the purpose for which they are bought arises where the buyer expressly or by implication makes known to the seller the particular purpose for which they are required and where he relies on the seller’s skill or judgment, whether the latter is the manufacturer or not, unless he, the buyer, has examined the goods and the defect is one which an examination would have revealed, or unless the contract is for the sale of a specified article under its patent or other trade name. The express warranty which the jury were justified in finding and that of reasonable fitness implied by law were not wholly to the same effect. An article may be reasonably fit for use and not pure.
The evidence justified the conclusion that the plaintiff at least by implication made known the particular purpose for which the goods were required and that in purchasing a preparation which
The transaction was not as matter of law within the provisions of the statute (St. 1908, c. 237, § 15, cl. 4, now G. L. c. 106, § 17, cl. 4) negativing the existence of an implied warranty of fitness in case of the sale of a specified article. It could have been found that the plaintiff purchased the preparation upon the “recommendation” that it was superior to that which she had been using and which she desired to purchase and that it was suitable for use on account of its composition and healthful character. The statutory provision now considered applies where the transaction results from the desire of one to purchase and the obligation of another to deliver a definite article having a "patent or other trade name.” A seller who recommends a specific thing as fit for the buyer’s use does not bring himself within the help of this exception, where it can be found that his advice and judgment were relied upon and that the article was not delivered in fulfilment of the buyer’s offer to purchase goods identified by a name known to the trade and the seller’s acceptance thereof. The existence of such a warranty is not negatived where the purchaser of an article, for a definite purpose rather than of a particular kind of merchandise, relies on the seller to supply him with something adapted to that end; the latter in that case does not escape liability by the recommendation and subsequent sale of an article having a trade name. The presence of the glass could have been found to constitute a breach of an implied warranty that the cream was reasonably fit for use. Ward v. Great Atlantic & Pacific Tea Co. 231 Mass. 90" court="Mass." date_filed="1918-09-11" href="https://app.midpage.ai/document/ward-v-great-atlantic--pacific-tea-co-6434502?utm_source=webapp" opinion_id="6434502">231 Mass. 90.
The fifth and sixth requests were properly refused. The right of the plaintiff to recover based on a breach of warranty is not founded on negligence, and where such an obligation exists, the fact of a purchase by the defendant from a reputable manufacturer is not a defence. Farrell v. Manhattan Market Co. 198 Mass. 271" court="Mass." date_filed="1908-04-02" href="https://app.midpage.ai/document/farrell-v-manhattan-market-co-6430219?utm_source=webapp" opinion_id="6430219">198 Mass. 271, 286. See Williston on Sales, § 237.
In the charge the judge in substance instructed the jury that if the defendant’s clerk at the time of the sale said to the purchaser that the merchandise furnished was “very good, very popular, you will like it, we sell a great deal of it, and people don’t find fault with it, they seem to be satisfied with it,” and if "she relies upon what the clerk said in praising the goods, then there is a warranty
While the judge stated in a general way that there could be found to be no right of action because of seller’s talk, he did not modify the direct instruction that the statements hereinbefore summarized were sufficient to constitute an express warranty. Other objections need not be considered.
The jury were further instructed that if the representations hereinbefore summarized induced the plaintiff to purchase the cream, it might satisfy them that the defendant was the one “who made the selection.” In determining the question whether the sale was of a specified article under G. L. c. 106, § 17, cl. 4, the evidence being contradictory, the instruction that that which had been said could be considered in determining whether the sale was of an article selected by the seller and purchased because of the representations made rather than of a specific article desired by
The other exceptions have been waived by failure to argue them.
Exceptions sustained.