Smith v. Gerrish

• Decision Date: 28 May 1926
• Citation: 256 Mass. 183,152 N.E. 318
• Parties: SMITH v. GERRISH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 183

152 N.E. 318

SMITH

v.GERRISH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1926.

Report from Superior Court, Suffolk County; W. P. Hall, Judge.

Action of contract by George W. Smith against Everett B. Gerrish and another for breach of implied warranty in sale of mackerel in defendants' restaurant. Verdict for defendants, and case reported on stipulation. Judgment for plaintiff.

1. Sales k445(1, 4)-Whether mackerel sold to patron of restaurant was fit for consumption as food, and whether there was implied warranty, held for jury (G. L. c. 106, s 17).

In patron's action against restaurant owners, evidence held to make question for jury as to whether mackerel sold to him for immediate consumption was fit for food, and whether, in view of G. L. c. 106, s 17, it was impliedly warranted to be fit for food.

2. Sales k274.

In view of G. L. c. 106, s 17, service of food for immediate consumption on the premises is a sale and carries with it implied warranty of fitness for consumption.

A. E. McCleary, of Boston, for plaintiff.

E. J. Sullivan, of Boston, for defendants.

PIERCE, J.

[1] This is an action of contract brought by the plaintiff for breach of an implied warranty. The defendants were copartners on March 9, 1923, and as such conducted a restaurant. On that day the plaintiff went to the restaurant conducted by the defendants and ordered and was served with a meal consisting of broiled mackerel, potatoes, coffee and rolls. ‘There was evidence that the mackerel in question was what is known as chilled or cold storage mackerel. That it was advertised on the bill of fare as ‘native mackerel’ and that it had been in cold storage for an indeterminate time prior to the date that it was served to the plaintiff.' The plaintiff, starting to eat of the served food, put a medium sized piece of the mackeral in his mouth and began to chew it; ‘it tasted as if it was not fit to eat’ but he swallowed a part of it because he was embarrassed to spit it out in the presence of strangers who were sitting at the table with him. He then finished his meal of potatoes, rolls and coffee, eating no more of the fish. After finishing his meal he left the restaurant, looked at a newspaper bulletin for a few moments, and then started for his place of business. Before arriving there he began to feel sick with griping pains in his stomach, and nausea. He was obliged to stop work at about 3:30 p. m. He went home and called a doctor, who prescribed some powders and, at a later visit, some liquid medicine and pills for food poisoning. He was very ill for about two weeks, suffering from intense griping pains in the stomach, being unable to keep any food whatever on his stomach, having frequent night sweats, and his body breaking out with a rash of a pussy nature. He lost seventeen pounds in weight. There was evidence that the plaintiff, with other members of his family, had had toast and coffee for breakfast that morning, and that none of the latter had suffered any ill effects.

At the close of the evidence the defendants moved and the trial judge directed a verdict in their favor; a verdict for the defendants was returned by the jury, and, by the agreement and at the request of counsel, the judge reported the case to this court upon the stipulation that if there was error in the ordering of the verdict then there should be judgment for the plaintiff in the sum of $1,000, otherwise, judgment on the verdict.

The evidence to support the contention of the plaintiff that the mackerel was not wholesome was sufficient to...