Nugent v. Popular Markets, Inc.

• Decision Date: 28 June 1967
• Parties: , 4 UCC Rep.Serv. 457 Ralph NUGENT v. POPULAR MARKETS, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 91

228 N.E.2d 91

353 Mass. 45, 4 UCC Rep.Serv. 457

Ralph NUGENT v. POPULAR MARKETS, INC.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 3, 1967.

Decided June 28, 1967.

Douglas R. Winniman, Springfield, for plaintiff, submitted a brief.

Stephen A. Moore, Boston, for defendant.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL, and REARDON, JJ.

WILKINS, Chief Justice.

In this action of contract the plaintiff seeks to recover for injuries to his mouth caused by wood splinters in a jar of boysenberries. The declaration is in two counts, one for breach of warranty of fitness for use and one for breach of warranty of merchantability. In the District Court there was a finding for the plaintiff on each count. The defendant claimed a report. In the Appellate Division the findings were vacated, and judgment ordered for the defendant. The plaintiff appealed.

At the trial there was evidence tending to show that the plaintiff purchased food, including the boysenberries, at the Popular Market, where he usually shopped for groceries, in the Sixteen Acres shopping center in Springfield about six o'clock in the evening of August 6, 1963, and that that evening the plaintiff suffered injury while eating the boysenberries.

The plaintiff's counsel sent the following letter:

August 7, 1963

Popular Markets, Inc.

1899 Wilbraham Road

Springfield, Mass.

Gentlemen:

On behalf of Ralph Nugent, 163 Westbrook Drive, Springfield, notice is herewith given you that on August 6, 1963 at about 9:00 p.m. Mr. Nugent suffered personal injuries when he ate Del Monte boysenberries purchased from your store which caused damage to his mouth and gums.

The above mentioned boysenberries were unfit for human consumption in that they contained a foreign object, namely wood. Mr. Nugent intends to assert his legal rights for damages.

Very truly yours,

Douglas R. Winniman

The Appellate Division held that it was error to deny the defendant's request for a ruling that the evidence did not warrant a finding that the defendant sold the plaintiff the goods described in the declaration. Its opinion stated that there was no evidence that the defendant owned or operated a market for the sale of foods at Sixteen Acres in Springfield. Reliance was placed on Herman v. Fine, 314 Mass. 67, 68--69, 49 N.E.2d 597, where it was said, 'In this Commonwealth 'bald identity of name without confirmatory facts or circumstances' seems never to have been considered quite sufficient to prove identity of person. Ayers v. Ratshesky, 213 Mass. 589, 593, 594, 101 N.E. 78, where the cases are discussed. * * * Although very slight evidence might have been enough, at least something more than identity of names was necessary.' The cases confirm that very slight evidence in addition to identity of name or names might be enough to prove identity of person. We cite a few. Ayers v. Ratshesky, 213 Mass. 589, 593--595, 101 N.E. 78. Souza v. Metropolitan Life Ins. Co., 270 Mass. 189, 192, 170 N.E. 62. Vieira v. Balsamo, 328 Mass. 37, 39--40, 101 N.E.2d 371.

In the case at bar there is such evidence of identity of person. The opinion of the Appellate Division does not mention the plaintiff's letter of August 7 to Popular Markets, Inc. The report states that the letter (not a copy) was 'introduced.' The original must have been produced by the defendant. Although it may be assumed that it was offered to prove notice of breach of warranty, it was not admitted for that limited purpose. Consequently, it became entitled to probative effect as tending to prove the truth of the statements it contained, including the fact that it was at the defendant's store that the plaintiff purchased the boysenberries. Ryan v. Di Paolo, 313 Mass. 492, 494, 47 N.E.2d 941. Pochi v. Brett, 319 Mass. 197, 203--204, 65 N.E.2d 195.

By G.L. c. 155, § 9, ¹ in effect as to the defendant at the time of the sale, a corporation 'shall not assume the name or trade name of another corporation established under the laws of the commonwealth, or of a corporation, firm, association or person carrying on business in the commonwealth * * * or assume a name so similar thereto as to be likely to be mistaken for it, except with the written consent of the said existing corporation, firm or association or of such person previously filed with the secretary (of the Commonwealth).'

It is unlikely that there were two separate businesses in Springfield both having 'Popular Market' or 'Popular Markets' as part of their name. In Doyle v. Continental Baking Co., 262 Mass. 516, 160 N.E. 325, the plaintiff was injured by a piece of metal in a loaf of bread, the wrapper of which bore the words 'Massachusetts Baking Company' and 'Trade Mark Registered U.S. Pat. Off.' The defendant was shown to have had the trade name 'Massachusetts Baking Company' at the time the bread was sold. By Federal law no one except the defendant baking company had the right to use this name. It was held that the defendant baking company could be found to have been the seller. Similarly, in the case at bar the defendant Popular Markets, Inc. could have been found to be the seller. The fact that the letter was addressed to 1899 Wilbraham Road without disclosing a location in the Sixteen Acres shopping center, but was delivered to the defendant, is a circumstance cutting both ways. That circumstance surely is not controlling in the defendant's favor.

Since there was more than mere bald identity of name, it was error to rule that the defendant's first request for a ruling should have been granted.

The defendant further contends that the letter was not a sufficient notice of breach of warranty. It objects that the notice did not give the date of the sale. The applicable statute is the Uniform Commercial Code, G.L. c. 106, as appearing in St. 1957, c. 765, § 1, effective October 1, 1958, which superseded the previous Sales Act in G.L. c. 106. The Code provides in § 2--607: '(3) Where a tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.'

We have seen no...