Hazelton v. First Nat. Stores, Inc.

• Decision Date: 02 March 1937
• Citation: 190 A. 280
• Parties: HAZELTON v. FIRST NAT. STORES, Inc. (four cases).
• Court: New Hampshire Supreme Court

190 A. 280

HAZELTON

v. FIRST NAT. STORES, Inc. (four cases).

Supreme Court of New Hampshire. Grafton.

March 2, 1937.

Exceptions from Superior Court, Grafton County; James, Judge.

Four actions of case by Sidney Hazelton, Marion Hazelton, Phyllis Hazelton, by next friend, and Sidney Hazelton, Jr., by next friend, all against the First National Stores Incorporated. To review denial of motions for nonsuit and directed verdict, and verdicts for plaintiffs, defendant brings exceptions.

Judgment for defendant.

Four actions of case to recover damages suffered by the plantiff Sidney Hazelton, his wife and two children, as a result of eating pork chops purchased at a store of the defendant in Hanover, from which all the plaintiffs contracted trichinosis. Declaration in each case contained a count for negligence and a count for breach of warranty. Trial by jury. The defendant seasonably moved for nonsuits and directed verdicts upon both counts in all the cases. In regard to the counts for breach of warranty two of the grounds specifically urged were: (1) "That the plaintiffs haven't given notice to the defendant as required by the statute in actions for breach of warranty"; and (2) that "the warranty does not run with the goods" and therefore neither Mrs. Hazelton nor the children can recover "on the warranty count." As to the negligence counts the motions were granted upon the ground that there was no evidence of the defendant's fault, and the plaintiff excepted. As to the counts for breach of warranty, the motions were denied, and the defendant excepted.

The evidence tended to prove the following facts: The pork chops in question were purchased upon April 13, 1933, by the plaintiff Marion Hazelton as the agent of her husband the plaintiff Sidney Hazelton. The chops were cooked by baking in an electric oven at a temperature of not less than 375 degrees Fahrenheit for one hour, and eaten by the plaintiffs. Thereafter, upon April 27, all four plaintiffs were found to be suffering from trichinosis. Mrs. Hazelton testified that when purchasing these chops she relied on the skill and judgment of the man who sold them to her. The court (James, J.) submitted to the jury the question whether the chops in question contained trichinÆ and whether the plaintiffs contracted trichinosis by reason of eating them.

The jury returned verdicts for all the plaintiffs.

The court charged the jury that section 15 of the Uniform Sales Act (Pub.Laws, c. 166, § 15) "imposes upon the seller an implied warranty that goods shall be reasonably fit for the purpose for which the goods are required."

The court also charged the jury as follows: "This warranty would extend not only to Mr. Hazelton, the actual purchaser, but also to those who might reasonably be presumed would consume the meat." To this instruction the defendant seasonably excepted.

The defendant seasonably requested the court to charge the jury as follows: "6. The plaintiffs were bound to give notice within a reasonable time to the defendant of the breach of warranty." This request was denied and the defendant excepted.

Other facts are stated in the opinion.

Murchie, Murchie & Blandin, of Concord (Alexander Murchie, of Concord, orally), for plaintiffs.

Devine & Tobin, of Manchester (John E. Tobin, of Manchester, orally), for defendant.

BRANCH, Justice.

In the cases of Mrs. Hazelton and the two children, the defendant's motions for nonsuits should have been granted upon the ground that the statutory warranty of fitness did not extend to them. In the case of Howson v. Foster Beef Company, 87 N.H. 200, 177 A. 656, 659, the question of the extent of such a warranty received careful consideration, and we there stated and applied the general rule "that warranties do not run in favor of any but an immediate purchaser." It is true that, in that case, we were not called upon to decide whether, as an exception to that rule, a warranty of food known by the seller to be intended for the use not only of the purchaser but of his family should be held to extend to members of the family. The principles stated in that case, however, are entirely inconsistent with the existence of such an exception, and no convincing reason has been suggested which would justify the establishment of such a rule at this time. Upon this ground there must, therefore, be judgment for the defendant in the suits of Marion Hazelton, Phyllis Hazelton, and Sidney Hazelton, Jr.

In the case of the husband, Sidney Hazelton, the court correctly ruled that, under section 15 of the Sales Act above cited, the sale of the chops in question carried with it an implied warranty that they were fit for use as food. No effect was given, however, to section 49 of the same act (Pub.Laws, c. 166, § 49) which provides as follows: "But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows or ought to know of such breach, the seller shall not be liable therefor." The court not only denied the motion for a nonsuit based upon this provision, but refused to submit to the jury the question whether notice was given to the defendant within a reasonable time after the plaintiff knew, or ought to have known, of the breach of warranty.

The plaintiff attempts to defend the action of the trial court upon the ground that the statute "was never intended to apply to the sale of goods for immediate human consumption," and in support of this position relies upon the case of Kennedy v. F. W. Woolworth Company, 205 App. Div. 648, 200 N.Y.S. 121. The language of the New York court seems to sustain the plaintiff's position, but the decision was based upon the ground that the action was in substance one of tort in the nature of deceit rather than of contract. The interpretation which the court placed upon section 49 of the Sales Act was therefore unnecessary and appears to us to be inconsistent with the general plan of the statute and the purpose of the section in question.

"The English statute makes no special provision for warranty in sales of food. The American Sales Act follows it in this respect. * * * The matter has thus been stated by the New York Court of Appeals: 'We have no doubt that section 96 (of the New York Personal Property Law [Consol.Laws, c. 41]; section 15 of the Sales Act) expressed as it is in general terms, applies to all sales including sales of food and that any rules hitherto applied inconsistent with this section are abolished.'" 1 Williston, Sales (2d Ed.) § 242a, citing Rinaldi v. Mohican Company, 225 N.Y. 70, 121 N.E. 471. Since the general provisions of the Sales Act in regard to warranties apply to sales of food and lie at the foundation of the plaintiff's case, it is difficult to understand upon what theory it can be held that the subsequent provisions of the act limiting the right of recovery for a breach of one of the warranties previously imposed are not applicable to cases arising out of sales of food.

A consideration of the purpose and intended effect of section 49 also leads to the conclusion that the interpretation placed upon it by the New York court cannot be adopted. "A rule seems desirable which is capable of some certainty in its application and which at the same time avoids the hardship on the buyer of holding that acceptance of title necessarily deprives him of the seller's obligations and also avoids the hardship on the seller of allowing a buyer at any time within the period of the Statute of Limitations to assert that the goods are defective though no objection was made when they were received. With this in mind, the positive requirement of prompt notice was inserted in the statute. Such notice or protest has in some jurisdictions been regarded as important evidence bearing on assent to receive defective goods in full satisfaction, but the statute makes it an absolute condition." 2 Williston, Sales (2d Ed.) § 484a.

"The purpose of the notice is to advise the seller that he must meet a claim for damages, as to which, rightly or wrongly, the law requires that he shall have early warning." American Mfg. Co. v. U. S Shipping Board Emergency Fleet Corporation (C.C.A.) 7 F.(2d) 565, 566.

"The purpose of the provision requiring such a notice is clearly to give the seller timely information that the buyer proposes to look to him for damages for the breach, that the former may govern his conduct accordingly. Such notice need take no special form, but it must be such as fairly to apprise the seller of that intention." Truslow & Fulle v. Diamond Bottling Corporation, 112 Conn. 181, 151 A. 492, 495, 71 A.L.R. 1142.

"The giving of notice of an alleged breach of warranty to a seller within a reasonable time, as required by G. L. c. 106, § 38, is intended for the protection of the seller against belated claims for damages." Idzykowski v. Jordan Marsh Co., 279 Mass. 163, 181 N.E. 172, 173.

It therefore appears that in purpose and effect section 49 is analogous to Pub.Laws, c. 89, § 9, which requires that every person making claim against a town for damages occasioned by a defective highway shall, within ten days of receiving injury, give to the town a written statement setting forth "the exact place where and the time when the injury was received, a full description thereof, the extent of the same and the amount of damages claimed therefor." The object of the above-described notice is "to enable the officers...