322 Mass. 386 | Mass. | 1948
This action of contract is brought to recover compensation for personal injuries sustained by the plaintiff in the circumstances described below. The action is based on an implied warranty under the sales act. G. L. (Ter. Ed.) c. 106, § 17. The case was tried to a jury, and at the close of the evidence the defendant moved for a directed verdict in its favor. The motion was denied, subject to the defendant’s exception. The jury returned a verdict for the plaintiff which was received by the judge under leave reserved. The defendant’s motion for entry of a verdict for it thereunder was also denied by the judge, subject to the defendant’s exception.
The evidence most favorable to the plaintiff may be summed up as follows: The plaintiff was engaged in the business of selling, among other articles, tonics, including coca cola, for cooling which he used a container or "cooler” which he had procured from the defendant. On June 29, 1944, he had thirty or forty cases of tonics, including coca cola, on hand. When the cases of coca cola were delivered to his store, the delivery men knew where to put them. Some were put where the plaintiff usually sold them and others were put in back. He employed no one except his wife, and as a rule he put the coca cola bottles in the cooler as needed. “He sells about ten to fifteen cases of coca cola a day when it is warm and if he has it.” He brings the cases from the back to the front of the store near the cooler. Some of his customers "go over to the cooler or to the cases and help themselves.” The defendant delivered coca cola to the plaintiff once a week. The last delivery prior to the accident, which occurred on a Thursday, was made on the previous Saturday or Monday. The plaintiff did not know how many full cases of coca cola he had brought from the back of the store to its front between the time of delivery and the day of the accident. When he brought
We are concerned in the present case not with any question of negligence (Holt v. Mann, 294 Mass. 21), but only with the issue whether the evidence warranted~the jury in finding, as they impliedly did, that the bottle in question was not of merchantable quality under the sales act, G. L. (Ter. Ed.) c. 106, § 17 (2), by the provisions of which, referring to the sale of goods by description, “. . . there
We have not been referred to and have not discovered any decision of this court in which the action was based upon an implied warranty of merchantability in the case of an explosion or breaking of a bottle in the same circumstances as those disclosed in the present case. In Lasky v. Economy Grocery Stores, 319 Mass. 224, the plaintiff failed to show that at the time when the bottle of tonic exploded in her hand she had entered into a contract with the defendant for the sale of the tonic to her. In Ruffin v. Coca Cola Bottling Co. 311 Mass. 514, the action was in tort for negligence and the evidence was held insufficient to warrant a finding of negligence.
There is, however, a case which arose under the English sale of goods act which is helpful and “in view of the fact that the . . . act was enacted before our own, and of the close similarity of the pertinent section of each act, . . . [is] entitled to consideration.” Ward v. Great Atlantic & Pacific Tea Co. 231 Mass. 90, 94-95. In Morelli v. Fitch & Gibbons, [1928] 2 K. B. 636, there was evidence as follows: The plaintiff went to a public house and asked the
In the instant case the bottle of coca cola in question was bought by description by the plaintiff from the defendant. It follows that it was sold by the defendant upon the condition that it should be of merchantable quality. Whether the bottle had been handled carefully by the plaintiff after it had been delivered to him was a question of fact for the jury. And the question, whether there had been a breach by the defendant of the implied warranty of merchantable quality, was also a question of fact interpreted in the light of correct principles of law. Bianchi v. Denholm & McKay Co. 302 Mass. 469, 472, and cases cited.
One point more remains to be disposed of. The defendant’s counsel has argued that the plaintiff’s declaration is predicated upon recovery .under G. L. (Ter. Ed.) c. 106, § 17 (1),
Exceptions overruled.
“In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.”
See Geddling v. Marsh, [1920] 1 K. B. 66S.
“ Section 17. There is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.”