275 Mass. 379 | Mass. | 1931
The declaration in this action in the Superior Court was in two counts, one in tort, the other in contract. The plaintiff elected to stand on the count in contract. In this count he alleged “that the defendant on or about April 26, 1926, was engaged in the manufacture, sale or distribution of tobacco; that on or about said date the plaintiff purchased some tobacco which was manufactured, sold or distributed by the defendant, its agents or servants; . . . that the defendant, its agents or servants represented the same to be wholesome and what he intended to purchase, but . . . the tobacco was not as represented and was unfit for use, in consequence of which the plaintiff on chewing the same was caused to sustain injuries and suffered great pain of body and anguish of mind, has been put to expense for medical aid and attendance, and was prevented for a long time from pursuing his usual vocation,” all to his great damage. The. defendant moved for a directed verdict. The motion was denied and there was a verdict for the plaintiff. The trial judge reported the case “with the agreement that if the case was properly left to the jury judgment is to be entered for the plaintiff in the sum of $350, otherwise judgment is to be entered for the defendant.”
The plaintiff testified as follows: He went to the cigar counter in a drug store for the purpose óf buying some chewing tobacco and asked the clerk, the man behind the counter, for a piece of chewing tobacco, giving the name of a brand. The clerk said, “I am sorry, I haven’t got any” tobacco of that brand. The plaintiff then started to walk out when the clerk called him back and said, “Here, Mister, come here. I have got some tobacco here that is better” than that brand, naming a brand which was in stock. The plaintiff replied that he didn’t want tobacco of that brand,
The defendant contends, in support of its motion for a directed verdict, (a) that there was no implied warranty of fitness and that the clerk had no authority to make an express warranty, (b) that there was no evidence to connect the sale and warranty with the defendant, (c) that “the plaintiff’s testimony was of such an impossible nature, and the plaintiff himself so unreliable, that no reasonable man should have believed him,” and (d) that under the pleadings the plaintiff cannot recover on a warranty.
1. The authority of the clerk to make the sale was unquestioned. The verdict — apart from any question of pleading — would be supported by a finding of a warranty of fitness implied from the sale, and a breach thereof. Such a finding against the proprietor of the cigar counter was warranted by the evidence. G. L. c. 106, § 17 (1), is as follows: “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.” The jury could have found that the plaintiff by implication made known to the clerk the particular purpose for which the
2. The evidence warranted a finding that the defendant was the proprietor of the cigar counter and that it made the sale and consequently the implied warranty. According to
3. It cannot be said as matter of law — whatever may be true as matter of fact — that the plaintiff was so unreliable or his testimony so inherently improbable that such testimony should not have been believed by the jury. The fact that, in answer to interrogatories propounded by the defendant, the plaintiff said that he did not remember the conversation between him and the clerk when he bought the tobacco, and five weeks later at the trial testified definitely to the conversation, as above stated, bore on his credibility, but the credibility of a witness is a matter of fact for the jury (Eustis v. Boston Elevated Railway, 206 Mass. 143, 144), who must determine which, if any, of conflicting statements by a witness are to be believed. See Tierney v. Boston Elevated Railway, 216 Mass. 283, 286. The plaintiff was not precluded by his answers to the interrogatories from testifying to the facts as he later remembered them. His testimony to his prejudice against the brand of tobacco sold him by the clerk did not make it impossible for the jury to believe that he did in fact buy that brand of tobacco. Nor, as the defendant contends, was the plaintiff’s account of the way in which he was injured in such conflict with facts which are matters of common knowledge that the jury could not have believed it. See Powers v. Wyman & Gordon Co. 199 Mass. 591, 593-594.
4. No question of pleading is open. The case is here on report. No question could have been reported which was not raised at the trial and none can be considered here which, on a proper interpretation of the report, was not intended to be reported. Brown v. National Dock & Storage Warehouse Co. 239 Mass. 10, 16. Crowe v. Boston & Maine Railroad, 242 Mass. 389, 392-393. Moskow v.
It follows that in accordance with the terms of the report “judgment is to be entered for the plaintiff in the sum of $350.”
So ordered.