Poplar v. Hochschild, Kohn & Co., Inc.

• Decision Date: 03 March 1942
• Docket Number: 19.
• Citation: 24 A.2d 783,180 Md. 389
• Parties: POPLAR v. HOCHSCHILD, KOHN & CO., Inc.
• Court: Maryland Court of Appeals

24 A.2d 783

180 Md. 389

POPLAR v. HOCHSCHILD, KOHN & CO., Inc.

No. 19.

Court of Appeals of Maryland

March 3, 1942

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Action by Myrtle B. Poplar against Hochschild, Kohn & Company Incorporated, to recover damages for breach of implied warranty in sale of an article to defendant wherein defendant filed a demurrer. From an adverse judgment, plaintiff appeals.

Affirmed.

Edward L. Parlett, of Baltimore (A. Freeborn Brown of Havre de Grace, and Lester H. Crowther, of Baltimore, on the brief), for appellant.

J Nicholas Shriver, Jr., and Talbot W. Banks, both of Baltimore, on the brief, for appellee.

Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

COLLINS Judge.

Appellant brought an action in the Baltimore City Court against appellee on a declaration containing two counts. A demurrer was filed by the appellee. The first count of the declaration was based on an express warranty and the second count on implied warranty. The Court below overruled the demurrer to the first count and sustained it to the second count without leave to amend. Appellant struck out the first count of the declaration by leave of Court. Appellant appeals to this Court from the action of the Trial Court in sustaining the demurrer to the second count.

The count now before us is substantially as follows: 'Second: And for that the Defendant owns and operates a Department Store at the corner of Howard and Lexington Streets in the City of Baltimore, State of Maryland, and on or about December 21, 1940, said Defendant sold and delivered to the Plaintiff, and charged to her account a box or set of perfume, powder, and other toilet articles, for her own use, at and for the sum of $7.50; that the Defendant, through its agents, servants, and employees, knew the particular purpose for which said set and the box containing the same were to be used, namely for the Plaintiff's toilet and beautifying purposes; that the Defendant impliedly warranted to the Plaintiff that the aforementioned set and the box containing the same were well made, that it was safe to handle and use the same in the usual and customary way that such an article is handled and used, that it would not harm or injure the Plaintiff in handling the said set or box, or using the same, and that the said box and set were not dangerous to said Plaintiff in any way; that said warranties were made by the Defendant, its agents, servants, and employees, to induce the Plaintiff to purchase said set and box, and in purchasing the same as beforementioned the Plaintiff relied upon the warranties as aforesaid, and the skill and judgment of the Defendant, its agents, servants, and employees; that subsequently the Plaintiff while handling and in the act of opening the lid or top of said box containing said set in the usual, ordinary and customary manner, pierced or cut the large or middle finger on her right hand with a large metal star affixed to said top or lid of said box; that said set and tox were not as impliedly warranted as aforesaid by the Defendant to the Plaintiff, in that on the said box were affixed, attached, fastened or glued two large metal stars the points of which were sharp and dangerous, and which said stars were so composed, constructed, and affixed that they were dangerous to anyone handling or using said box or set of perfume, powder, and other toilet articles, in the customary and usual manner; that the Plaintiff notified the Defendant of the aforesaid breach of said warranties within a reasonable time after discovering the same; that as a result of the breach of warranties as aforesaid and the beforementioned defects or dangerous condition of said box and set, the Plaintiff pierced or cut the large or middle finger on her right hand with one of said metal stars affixed to said top, or lid of said box, all as set forth above, and as a result thereof * * *.' The italics are inserted here.

The question for our decision is whether the sale by appellee to appellant of a box of perfume or powder for her own use which the appellee knew was to be used by the appellant for appellant's toilet and beautifying purposes, under the Uniform Sales Act, created an implied warranty which extended to the carton or box in which the powder was packed. The part of the Uniform Sales Act which appellant contends applies to the container is subsection (1) of Section 33 of Article 83 of Flack's Edition of the Annotated Code of Maryland which is as follows: 'Subject to the provisions of this sub-title and of any statute in that behalf, 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.' Appellant contends that the perfume was purchased not only for its quality and usefulness but also because it came in a beautiful box, highly decorated which made the cost more than if the powder had been in an...