312 Mass. 544 | Mass. | 1942
"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 upon the seller’s skill and judgment, . . . there is an implied warranty that the goods shall be reasonably fit for such purpose.” G. L. (Ter. Ed.) c. 106, § 17 (1). (Sales Act, § 15.)
The defendant’s argument before us has been chiefly directed to the point that there was no sufficient evidence that'the buyer gave “notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer . . . [knew], or ought to . . . [have known] of such breach.” G. L. (Ter. Ed.) c. 106, § 38. (Sales Act, § 49.) On this point there was evidence tending to show the following: Four or five days after September 5, 1939, the day when the physician first informed her that the dress was the cause of her trouble, the plaintiff went “to the Gilchrist Company” and talked with a Miss Brown, the assistant manager of the “ready-to-wear department,” whose duty it was “to accept complaints.'” The plaintiff told Miss Brown that the plaintiff had bought the dress
From this evidence it could have been found that the attention of an authorized agent of the seller was called to the particular sale, and that she was fairly advised of the general nature of the defect in the dress and that the buyer intended to assert her legal rights, all within a reasonable time after the buyer knew or ought to have known of the defect. Every element of a valid notice could have been found. Nashua River Paper Co. v. Lindsay, 249 Mass. 365, 370. No greater particularity was required as to what chemical substance in the dress caused the rash. Guthrie v. J. J. Newberry Co. 297 Mass. 245, 248. Nothing in the evidence required a finding of a waiver on the plaintiff’s part. The case is to be classed with such cases as Jamrog v. H. L. Handy Co. 284 Mass. 195, 198, 199; Smith v. Denholm & McKay Co. 288 Mass. 234, 241; Johnson v. Kanavos, 296 Mass. 373, 376, 377; Bruns v. Jordan Marsh Co. 305 Mass. 437, 444, 445; and Morin v. Stromberg, 309 Mass. 146, 148, 149. See Bianchi v. Denholm & McKay Co. 302 Mass. 469. Compare Murphy v. Gilchrist Co. 310 Mass. 635.
Since the case should have been submitted to the jury, the exceptions are sustained, and in accordance with a stipulation of the parties, judgment is to be entered for the plaintiff in the sum of $500.
So ordered.