349 Mass. 764 | Mass. | 1965
Order affirmed. We are here concerned only with counts 11 and 12 of the plaintiff’s declaration against the United States Rubber Company (defendant). Count 11 sounds in tort for negligence and count 12 sounds in contract for breach of warranty. The plaintiff appealed from an order of the Superior Court sustaining a demurrer to each of these counts. As to count 11, one of the grounds stated by the defendant is that it “fails to state facts sufficient to constitute a claim against the [d]efendant.” The same ground is assigned as to count 12. Count 11 seems to claim negligence by the defendant in its manufacture of certain material subsequently made into pipes by another named defendant; but it does not “state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action.” G. L. c. 231, § 7, Second. Count 12 suffers from the same infirmity, and also shows affirmatively that there was no privity between the parties. See G. L. c. 106, § 2-313. Referring to this count, the plaintiff in its brief relies on Roberts v. Anheuser Busch Brewing Assn. 211 Mass. 449. That case is obviously inapposite. We are of opinion that neither count is sufficient in law “to enable the plaintiff to maintain . . . [its] action,” G. L. e. 231, § 18, and that neither count complies with G. L. e. 231, § 7, Second.
