Hawkins v. Jamrog

• Decision Date: 29 December 1931
• Citation: 277 Mass. 540,179 N.E. 224
• Parties: HAWKINS v. JAMROG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 540

179 N.E. 224

HAWKINS

v.JAMROG.

Supreme Judicial Court of Massachusetts, Hampshire.

Dec. 29, 1931.

Exceptions from Superior Court, Hampshire County; Burns, Judge.

Action by Mary Ann Hawkins against Joseph Jamrog. On plaintiff's exceptions to order for judgment.

Exceptions sustained.

D. H. Keedy, of Springfield, for plaintiff.

S. J. Vanderlick, of Northampton, for defendant.

FIELD, J.

This is an action for breach of an implied warranty of fitness for food of certain slaughtered turkeys sold by the defendant to the plaintiff. See G. L. c. 106, § 17(1). The case was referred to an auditor whose findings of fact by agreement of the parties were to be final.

The auditor found that the defendant sold dressed turkeys to the plaintiff for use as food in the boarding house which she conducted for college students, with the knowledge on the part of the defendant that the turkeys were to be used by the plaintiff as food for herself and her boarders, and with the implication that the turkeys ‘when delivered should be sound, wholesome and fit to be eaten,’ that these turkeys were served at a Sunday dinner in the middle of October to seventy boarders, that the plaintiff, all her student waiters, and almost all her boarders became sick as the direct result of eating the turkey meat, that the next day only twenty-five of the boarders returned to be served with food, that the plaintiff continued her business during the remainder of the college year to the middle of June with only thirty boarders, that the student waiters, in accordance with custom, ‘endeavored by solicitation of the boarders who had left to induce them to return to the plaintiff's house and to board there again, but without success,’ and that the action of the boarders ‘in leaving and refusing to return * * * was the direct result of their having been made ill by partaking of the turkey meat for food at the Sunday dinner in question.’ The auditor found ‘that the reputation of the plaintiff's boarding house among the student body * * * before the Sunday in question was good * * * that thereafter the reputation of her boarding house as a place where good and wholesome food could be had was very bad and * * * this reputation became general among the members of the student body of the college * * * that this change in reputation of her boarding house was the direct result of her having served to her boarders the turkeys purchased from the defendant, and was caused by the fact that said turkeys were not sound and fit to be eaten or served as food * * * that [her] * * * average weekly profit per boarder was about $2, and that if she can recover in this action at law against the defendant she is entitled to the sum of $2,000 for loss of the reasonable profit which she would have realized from the forty boarders who left about the middle of October, 1928, and did not thereafter board with her to the end of the school year about the middle of June, 1929.’ The auditor found, also, that in addition to this loss the plaintiff was entitled to the sum of $200 for permanent injury to the reputation of her boarding house, and $100 for personal injury resulting from her own illness.

The judge ordered judgment for the plaintiff for $300 and ruled ‘that the loss of profits is too remote and speculative to be allowed as an element of damage. College students may change their boarding places many times before the close of the college year and for a variety of reasons.’ The plaintiff excepted to this ruling and to the order that judgment be entered for $300 only, instead of $2,300. The only question argued is the amount of damages.

Judgment should have been entered for $2,300, including $2,000 for loss of profits. The judge could not review the auditor's findings of fact since under the order of reference to him they were to be final (Lunn & Sweet Co. v. Wolfman, 268 Mass. 345, 349, 167 N. E. 641), and he could not properly rule as matter of law ‘that the loss of profits is too remote and speculative to be allowed as an element of damage.'

The plaintiff's loss of prospective profits, if proved, was not too remote to be allowed as an element of damage. G. L. c. 106, §§ 58(6), 59; Gagnon v. Sperry & Hutchinson Co., 206 Mass. 547, 555, 92 N. E. 761;Neal v. Jefferson, 212 Mass. 517, 523, 524, 99 N. E. 334, 41 L. R. A. (N. S.) 387, Ann. Cas. 1913D, 205; Swain v. Schieffelin, 134 N. Y. 471, 31 N. E. 1025,18 L. R. A. 385. See also Randall v. Peerless Motor Car Co., 212 Mass. 352, 379, 380, 99 N. E. 221;Parker v. S. G. Shaghalian & Co., Inc., 244 Mass. 19, 22, 138 N. E. 236. In Leavitt v. Fiberloid Co., 196 Mass. 440, 445, 446, 82 N. E. 682, 685,15 L. R. A. (N. S.) 855, it was said that: ‘Upon any breach of contract, whether of warranty or otherwise, the defendants is liable for whatever damages follow * * * which may reasonably be supposed to have been within the...