310 Mass. 635 | Mass. | 1942
In this action upon an implied warranty of fitness for use of two pairs of pajamas purchased by the plaintiff from the defendant, the judge has reported the question of the correctness of his ruling that notice of the breach was not given by the plaintiff to the defendant within a reasonable time.
The pertinent statute, G. L. (Ter. Ed.) c. 106, § 38 (sales act, § 49), requires notice “within a reasonable time after the buyer knows, or ought to know of such breach.” The burden of proving that notice was given within a reasonable time rests upon the plaintiff. Jamrog v. H. L. Handy Co. 284 Mass. 195, 198. Putnam v. Great Atlantic & Pacific Tea Co. 304 Mass. 364, 367.
The evidence upon which the plaintiff relies was this: The purchase was made on or about December 14, 1937. The plaintiff wore one of the pairs of pajamas on December 22. The next morning he noticed a rash about the size of a nickel under one arm and one a little larger under the other arm. By the twenty-fifth the rash had covered “great areas” of the plaintiff’s body. On the twenty-ninth a physician examined the plaintiff and prescribed an ointment. On January 5, 1938, the physician again saw the plaintiff and expressed the opinion “that it was not a blood condition but a local condition.” On January 27 the physician ordered the plaintiff to stop work, which the plaintiff did on January 29. On.February 1 the plaintiff, through his wife, returned “part of the garment” to the defendant and “made a report of the above facts” and a claim for damages. The plaintiff testified that “from the beginning he was of the impression that the pajamas caused the injury and he always associated the rash with the pajamas.”
In our opinion this evidence would not warrant a finding that the plaintiff gave notice within a reasonable time after
In accordance with the stipulation of the parties contained in the report judgment is to be entered for the defendant "on the verdict under leave reserved.”
So ordered.