Parker v. S.G. Shaghalian & Co.

• Decision Date: 28 February 1923
• Parties: PARKER v. S. G. SHAGHALIAN & CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 19

138 N.E. 236

PARKER

v.S. G. SHAGHALIAN & CO., Inc.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 28, 1923.

Exceptions from Superior Court, Bristol County; E. B. Bishop, Judge.

Action of contract by John A. Parker against S. G. Shaghalian & Co., Inc., to recover damages for a breach of contract in connection with a sale of 1,105 pounds of candy manufactured by defendant and sold to plaintiff, a wholesale dealer. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

A witness for plaintiff, after testifying concerning his experience in the manufacture of candy, was permitted to testify in answer to a hypothetical question that the candy in question ‘looks to be ammonia with powder mixed,’ that it was either made of glucose or not boiled high enough, and that in his opinion it was not made of sugar. Defendant excepted to the admission of such evidence. At the close of the evidence, defendant moved for a directed verdict and excepted to its refusal. It requested rulings and instructions that the sale was a sale by sample, that G. L. c. 106, § 1(b), did not apply, because plaintiff had made no request for a comparison of the bulk of his purchase with the sample submitted, that section 18(c) did not apply decause there was no evidence of any defect, that there was no evidence that the bulk did not correspond with the sample in quality, and that there was no implied warranty or condition as to the quality or fitness of the goods for any particular purpose because the sale was a sale of a specific article under a trade-name. It excepted to the refusal of such requests, to the court's refusal to rule that the sale was a sale of a specific article under a tradename, to the portion of the charge relating to damages, to the ruling and charge that section 17 of the statute was applicable, and to the court's general interpretation of that section.

John A. Kerns, of Fall River, for plaintiff.

Arthur S. Phillips and J. Edward Lajoie, both of Fall River, for defendant.

RUGG, C. J.

This is an action for breach of contract concerning the sale by sample of a quantity of candy known as ‘peach buds' brought by a wholesale dealer against the manufacturer. The candy was shipped on December 3, received on December 6, and paid for on December 11, 1918. There was evidence tending to show that on receipt there was nothing about the candy to indicate that it did not correspond to sample and was not merchantable; that it was sold and delivered by the plaintiff to his retail customers in the usual way, and upon being displayed by them for sale according to the custom of the trade became sticky, ran together, and was wholly unsalable within a very few days, in consequence of which the plaintiff was obliged to take it all back from his customers, and that notification of these facts was sent to the defendant on January 6, 1919.

The sale, having been by the manufacturer by sample, was governed by that part of the Sales Act which provides that--

‘There is an implied warranty that the goods shall be free any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.’ G. L. c. 106, § 18(c).

It might have been inferred from all the evidence that the tendency to become sticky would not be observed upon a reasonable examination of the sample of such goods as were the subject of this transaction, nor observed on inspection of the goods themselves as and when they were delivered to the plaintiff.

It fairly might have been inferred from the fact that the purchaser was a wholesale dealer in candy, and from the size of the transaction, that by implication there was made known to the defendant as manufacturer and seller that the particular purpose of the purchase was resale to retail candy merchants. The circumstance that the plaintiff made the purchase directly from the manufacturer without previous inspection afforded ground for the inference that he relied upon its skill in the making of the candy. Drummond v. Van Ingen, 12 A. C. 284; Priest v. Last, [1903] 2 K. B. 148 (C. A.): Williston on Sales, § 248, and cases cited. Therefore the provision of the Sales Act was applicable, to the effect that there is an implied warranty of fitness for that purpose--

‘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.’ G. L. c. 106, § 17(1).

It follows that there was no error in the instruction in substance that there was an implied warranty that the candy was of a quality and fitness suitable for resale and distribution among retail dealers and would remain merchantable under the usual conditions attending proper exposure for retail sale for a reasonable length of time for candy of that nature. This was no more than an amplified statement that the plaintiff, having bought ‘peach buds' candy, was entitled to receive goods that fairly could be put upon the market and sold as such candy both as to...