Bradt v. Hollaway

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: DE COURCY
• Citation: Bradt v. Hollaway, 242 Mass. 446, 136 N.E. 254 (Mass. 1922)
• Decision Date: 10 July 1922
• Parties: BRADT v. HOLLAWAY et al.

242 Mass. 446

136 N.E. 254

BRADT

v.HOLLAWAY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 10, 1922.

Report from Superior Court, Suffolk County; Patrick M. Keating, Judge.

Action by Florence A. Bradt against William J. Hollaway and others for personal injuries alleged to have been caused plaintiff by poisoning from a fur scarf purchased from defendants. Reported from the superior court after a verdict for plaintiff for $600. Judgment for defendants.

The declaration contained counts for negligence, false representations and breach of warranty, but only the count for breach of warranty was submitted to the jury. The case was submitted with the understanding that if the verdict was for plaintiff the court would report the case, and that if the Supreme Judicial Court should decide that the trial judge was right in submitting the case to the jury, judgment was to be entered for plaintiff in the sum found by the jury, and otherwise judgment entered for defendants.

1. Sales k445(1)-Whether buyer relied on salesman's skill and judgment, and whether he should have been aware thereof, held questions for jury.

Evidence held to make questions for the jury as to whether plaintiff in purchasing a fur neck-piece relied on the salesman's skill and judgment, and whether he reasonably should have been aware that she was so relying on him so as to raise an implied warranty of fitness under Sales Act, s 17, subd. 1.

2. Sales k441(4)-Evidence held insufficient to warrant finding that irritation of skin was due to injurious substances in dye of fur.

In an action for breach of the implied warranty of fitness in the sale of a dyed fur neck-piece, evidence held insufficient to warrant a finding that the irritation and eruption of plaintiff's skin was due to any poisonous or injurious substance in the dye.

3. Sales k268(2)-No implied warranty where long hair of neck-piece was obvious.

If the long hair on a fix neck-piece which irritated plaintiff's skin was a defect within Sales Act, s 17, as to implied warranties, there was no warranty under subdivision 3, where it was obvious to plaintiff who examined the fur and compared it with others.

John H. Devine and Walter A. Buie, both of Boston, for the plaintiff.

Pitt F. Drew and John P. Carr, both of Boston, for defendants.

DE COURCY, J.

The plaintiff brought this action to recover for injuries to her skin, alleged to have been caused by wearing a fur neck-piece purchased from the defendants in August, 1917. At the close of the evidence she waived the count based on negligence and that for false representations. The case was submitted to the jury on the count in contract, alleging a breach of warranty. While some of the language in this count points to an express warranty, it is apparent from the record that the trial proceeded upon the basis of an implied warranty that the fur piece was suitable for wear. The question raised by the report is whether the trial judge was justified in submitting the case to the jury.

The pertinent parts of the Sales Act (St. 1908, c. 237, § 14, now G. L. c. 106, § 17), on which the rights of the parties depend, are these:

‘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. * * *

‘(3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.’

[1] The defendants admit that their salesman knew ‘the particular purpose’ for which the fur neck-piece was required by the plaintiff. On the issue whether the plaintiff in making the purchase relied on the skill or judgment of the salesman (Mr. Riedel) these facts appear: She had been a customer of his for four or five years. At her first visit to the store in August she was shown a natural blue fox scarf, but considered it too expensive for her. The salesman then produced one of a pair of dyed blue fox skins; the other having been made up into a scarf, and being then in the hands of a salesman out on the road. At Mr. Riedel's suggestion she postponed a decision and returned later; when she was shown the scarf. Her testimony was that Mr. Riedel...