309 Mass. 146 | Mass. | 1941
The record in these cases is greatly confused • — ■ so much so that it is even difficult to determine which cases out of a number of cases are properly before us. This obscurity is due in large part to the omission of the captions from the various documents printed without inserting necessary references, so that an inspection of each document fails to disclose in what case or cases it was filed or to what case or cases it relates. See now G. L. (Tér. Ed.) c. 231, § 135, as amended by St. 1941, c. 187, § 1. Possibly the form of the record results from a misapprehension of the effect of an order consolidating the cases "for the purpose of report to the Appellate Division.” Such an order in reference to separate- actions by individual plaintiffs brings the cases together into one report for convenience in carrying questions of law to the higher tribunal, but it does not destroy the identity of the
However, notwithstanding the evident deficiencies in .the present record, we have come to the conclusion that with the aid of the writs and docket entries transmitted to us with the record (see G. L. [Ter. Ed.] c. 231, § 135), it is possible to construe the whole record so as to ascertain the cases, the parties and the issues with sufficient certainty to enable us to deal with them.
The actions are for breach of implied warranties of fitness for consumption of food furnished to the plaintiffs Alphe Morin, Elizabeth Morin, and Alice L’ltalien at the defendant’s restaurant on July 23, 1938. G. L. (Ter. Ed.) c. 106, § 17 (1). Schuler v. Union News Co. 295 Mass. 350, 353. The evidence warranted findings, and the judge found, that an implied warranty of such fitness arose in favor of each plaintiff; that the fried clams furnished to each as part of the meals were not fit to eat; and that each was made ill thereby.
The principal question in each case is whether there was sufficient notice of breach of warranty. G. L. (Ter. Ed.) c. 106, § 38. On August 1 an attorney representing the plaintiffs wrote the defendant that the attorney had been retained in behalf of the plaintiffs, naming them, “in their claim for damages sustained by them as a result of your negligence in serving food, namely 3 . clam dinners . . . which was unfit for human consumption.” The day, hour and place when and where the food was eaten were also stated. The letter closed with the suggestion that the defendant communicate with the attorney at the defendant’s earliest convenience. The judge found that this notice was given within a reasonable time.
There was no error in the order of the Appellate Division limiting the new trial to damages only. Every necessary element of liability had been established by the findings of the trial judge. Only his ruling that the notice was insufficient stood in the way of recovery. The Appellate Division rightly reversed that ruling. It is provided by statute that the Appellate Division may order a new trial “in whole or part.” . G. L. (Ter. Ed.) c. 231, § 108. Such has long been the practice of this court in proper cases, many of which are discussed in Simmons v. Fish, 210 Mass. 563.
In so far as a second appeal by the defendant, filed June 25, 1940, may have brought here any question not herein-before discussed, it is enough to say that that appeal has not been argued.
Orders of Appellate Division affirmed.