284 Mass. 195 | Mass. | 1933
This is an action of contract in which the plaintiff seeks to recover damages for an alleged breach of warranty in the sale of turkeys to him.
One Zytkiewicz, a witness called by the plaintiff, testified in substance that on or about October 4, 1928, he was in the employ of the defendant as a salesman; that he knew the plaintiff was a customer of the defendant; that on or about the above date the plaintiff ordered from him six turkeys at the plaintiff’s place of business in Amherst; that he knew they were for a Mrs. Hawkins, who kept a boarding house and catered to students, and he gave the order to the defendant, and he knew that the turkeys were delivered; that on his next trip to Amherst, on the Monday following the Saturday on which the turkeys were delivered, he had a talk with the plaintiff, who told him that he had one turkey left over, and that Mrs. Hawkins said the turkeys were “off condition.” This witness further testified that he had never been instructed by his superiors in the defendant company as to what he could do, or what the company would do with reference to guaranteeing its products. The plaintiff testified that when he gave the order he asked
The evidence warranted a finding of both an express and an implied warranty that the turkeys were fit for the use made of them. G. L. (Ter. Ed.) c. 106, § 17 (1). Idzykowski v. Jordan Marsh Co. 279 Mass. 163, 167. The only question argued by the defendant relates to the notice required by G. L. (Ter. Ed.) c. 106, § 38. The statute provides in part as follows: “But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to .know of such
We are of opinion, however, that there was no error in the action of the trial judge. It could not have been ruled that the notice to the defendant was insufficient. The notice required by the statute must refer to particular sales, must fairly advise the seller of the alleged defect, and specify with reasonable particularity in what the breach consists. It need not necessarily take the form of an express claim for damages or threat of such, but it is sufficient if it is reasonably inferable therefrom that the buyer is asserting a violation of his legal rights. Nashua River Paper Co. v. Lindsay, 249 Mass. 365, 370. Idzykowski v. Jordan Marsh Co. 279 Mass. 163, 167. It could properly have been found that the notice given the defendant’s salesman by the plaintiff wherein he recited the conversation he had with Mrs. Hawkins fulfilled the requirements of the statute. It is plain that it referred to the sale of the turkeys to the plaintiff the previous week. The complaint that the turkeys were “off condition” could rightly have been found
The only remaining question is whether the defendant’s salesman could be found to have been authorized to receive notice of the breach of warranty. We are of opinion that the jury were justified upon the evidence in so finding. “It is the general rule, settled by an unbroken current of authority, that notice to, or knowledge of, an agent while acting within the scope of his authority and in reference to a matter over which his authority extends, is notice to, or knowledge of, the principal.” Mechem on Agency (2d ed.)
As the defendant’s motion for a directed verdict was rightly refused, the entry must be
Exceptions overruled.