Sams v. Ezy-Way Foodliner Co.

• Decision Date: 19 January 1961
• Docket Number: EZY-WAY
• Citation: 170 A.2d 160,157 Me. 10
• Court: Maine Supreme Court
• Parties: Covan N. SAMS v.FOODLINER CO.

Page 160

170 A.2d 160

157 Me. 10

Covan N. SAMS v. EZY-WAY FOODLINER CO.

Supreme Judicial Court of Maine.

Jan. 19, 1961.

Peter Rogers, Douglas MacVane, Edward W. Rogers, Portland, for plaintiff.

Mahoney, Desmond & Mahoney, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

WILLIAMSON, Chief Justice.

This case is before us on exceptions to the direction of a verdict for the defendant. The plaintiff seeks damages under Section 15 II of the Uniform Sales Act for breach of an implied warranty of merchantability of 'hot dogs' purchased by him from the defendant. Taking the evidence with its inference in the light most favorable to the plaintiff, we are of the opinion a jury could have found as follows:

The defendant operated a self-service supermarket in which the customers made their own selection of food products and paid for them at the check-out counter. The plaintiff purchased a plain sealed plastic bag containing frankfurts. There were signs on the store window and near like bags indicating a special sale of 'Jordan's Hot Dogs'. On the following day the plaintiff's wife removed the frankfurts from the bag and boiled and served them to the plaintiff in the evening meal with salad and mashed potatoes. The plaintiff testified that, 'I bit down on to this hot dog and I crushed in my mouth, first I though it was a bone but on examining I found it was glass.' After a few days of discomfort from a sore throat and a sore tongue, he consulted a physician. Three small slivers of glass were removed from his mouth.

The frankfurts were made by a third party and not by the defendant. The good reputation of the maker was unquestioned. It is agreed that inspection would not have revealed the defect of which the plaintiff complains to either the plaintiff or defendant.

The defendant raises an issue that the evidence would not warrant a finding that the frankfurt contained glass. In the absence of such a finding there could, of course, be no verdict for the plaintiff whatever the extent of the warranty.

Under the familiar rule, a finding of fact may not be based on guess, conjecture, or a choice among possibilities. Ross v. Porteous, Mitchell & Braun Co., 136 Me. 118, 3 A.2d 650. The defendant says in substance that the jury under the rule could not determine whether the glass was in the frankfurt, in the salad, in the mashed potato, or on the plaintiff's plate.

It does not seem unreasonable to us that a person in plaintiff's situation should know that the injury came in biting upon the frankfurt and not from some other source during the meal. Taking the evidence in its entirety, we are satisfied that a jury would be warranted in finding that glass in the frankfurt caused plaintiff's injury.

The controlling issue in this action of a plaintiff purchaser-consumer against a defendant retailer is whether there is a 'sealed container exception' from the implied warranty of merchantability under our Sales Act. Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339 and Annotation, and Botti v. Venice Grocery Co., 309 Mass. 450, 35 N.E.2d 491, 135 A.L.R. 1387 and Annotation represent the position of the purchaser; Bigelow v. Maine Cent. R. R., 110 Me. 105, 85 A. 396, 43 L.R.A.,N.S., 627, that of the seller.

Liability of the defendant in this action rests solely upon an implied warranty of merchantability under Section 15 II of the Uniform Sales Act. R.S. c. 185, first enacted P.L.1923, c. 191. It arises, if at all, by contract and is not dependent in the slightest degree upon fault of the defendant. The pertinent portions of Section 15 read:

'Sec. 15. Implied warranties of quality.--Subject to the provisions of this chapter 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:

' I. 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.

'II. Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality.

'III. If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.

'IV. In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.'

There is no suggestion in the record that the plaintiff relied upon the seller's judgment or skill within the meaning of Clause I in selecting the brand, i. e., 'Jordan's Hot Dogs', or the particular bag of frankfurts. The seller did no more than offer 'Jordan's Hot Dogs' for sale. The case is analogous insofar as reliance is concerned (and on other points as well) with Ryan v. Progressive Grocery Stores, supra. There the consumer asked for and purchased 'Ward's bread' wrapped in a sealed package. The plaintiff was injured by a pin within the bread. The New York Court of Appeals, speaking through Judge Cardozo, held (1) that there was no reliance upon the seller on which to base an implied warranty of reasonable fitness under Clause I, and (2) that the consumer could recover on breach of an implied warranty of merchantability under Clause II.

The plaintiff does not contend that he relied upon the defendant in selecting the particular brand of frankfurts purchased by him. He brings his case solely upon the warranty of merchantability.

A 'hot dog' containing glass is, of course, not fit to eat and is therefore not of merchantable quality. The test under Clause II is not that buyer and seller treated the goods as merchantable, but whether they were so in fact. Grant, Appt. v. Australian Knitting Mills, Ltd. et al., 1936 A.C. 85, 105 A.L.R. 1483 (deleterious substance in Golden Fleece underwear); Ryan v. Progressive Grocery Stores, supra (pin in Ward's bread); Botti v. Venice Grocery Co., supra (deleterious substance in LaRosa macaroni); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1; Mead v. Coca Cola Bottling Co., 329 Mass. 440, 108 N.E.2d 757; 4 Williston on Contracts § 907 (rev. ed.) 1 Williston on Sales § 243 (rev. ed.).

The frankfurts in the sealed plastic bag were sold by description within the meaning of Clause II. Assuming (we need not decide) that 'Jordan's Hot Dogs' was a trade or brand name under Clause IV, the warranty of merchantability under Clause II was not thereby destroyed. Indeed, the trade name of 'Jordan's Hot Dogs' was fairly intended to describe the goods to the prospective customer. Botti v. Venice Grocery Co., supra; Ryan v. Progressive Grocery Stores, supra; D'Onofrio v. First National Stores, Inc., 68 R.I. 144, 26 A.2d 758. See also Adams v. Peter Tramontin Motor Sales, 42 N.J.Super. 313, 126 A.2d 358; Brennan v. Shepherd Park Pharmacy, D.C.Mun.App., 138 A.2d 494.

The fact that the frankfurts were sold in a self-service market does not affect the result. The sign, or label, effectively described the goods in the market and in the package. The printed word was the silent salesman. The vitality of Clause II does not rest upon the presence of a clerk. Compare Mead v. Coca Cola Bottling Co., supra, in which the Massachusetts Court in holding a warranty of merchantability under Clause II attached to the sale of coca cola in an automatic vending machine, said at page 758 of 108 N.E.2d:

'The sale here was of a bottled beverage by description. It was a sale of goods by a trade-name generally known as a name describing a particular beverage. (Several citations omitted). Botti v. Venice Grocery Co., supra. The sale was completed by the payment of the price and by the delivery of the goods although such delivery was made by means of a mechanical instrumentality * * * There seems to be no essential difference in the method adopted for delivery from that employed in self-service stores where the customer is authorized to take goods from the shelves and carry them away on payment of the stipulated price. See Lasky v. Economy Grocery Stores, 319 Mass. 224, 65 N.E.2d 305, 163 A.L.R. 235.'

In Lasky it was held that a sale in a self-service market is completed only by payment, and that prior to payment there was no implied warranty of merchantability under Clause II. The Court gave no indication that such a sale was not a sale by description. We recognize that a U. S. Court of Appeals has held otherwise. Torpey v. Red Owl Stores, 8 Cir., 228 F.2d 117.

We come to the issue of whether the retailer of food in a sealed container is insulated from an implied warranty of merchantability under the Sales Act. We make no distinction between the can of asparagus (Bigelow), the package of macaroni (Botti), the bread wrapped in paper and sealed (Ryan), and the 'hot dogs' in the sealed plastic bag. In each instance we have a sealed container or an original package effectively preventing inspection by the retailer at any time and by the purchaser until the container is opened. The basis of the 'sealed container exception' is that the purchaser could not have placed reliance upon the retailer's skill or judgment in determining that the contents were fit to eat.

Our task is to determine the meaning of Clause II of our Act.

'Sec. 74. Interpretation shall give effect to purpose of uniformity.--This chapter shall be so interpreted and construed, if possible, as to effectuate its general purpose to make uniform the laws of those states which enact it.' (R.S. c. 185.)

The Uniform Sales Act codified, extended,...