Timmins v. F.N. Joslin Co.

• Decision Date: 07 July 1939
• Citation: 303 Mass. 540,22 N.E.2d 76
• Parties: TIMMINS v. F. N. JOSLIN CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 540

22 N.E.2d 76

TIMMINS

v.F. N. JOSLIN CO.

Supreme Judicial Court of Massachusetts, Middlesex.

July 7, 1939.

Exceptions from Superior Court, Middlesex County; R. B. Beaudreau, Judge.

Action of contract by Alice M. Timmins against the F. N. Joslin Company for breach of warranty in the sale of bread. Judgment for plaintiff, and defendant brings exceptions.

Exceptions overruled.

M. R. Flynn, of Malden, for plaintiff.

H. N. Cushing, of Boston, for defendant.

LUMMUS, Justice.

This is an action of contract for breach of warranty in the sale of bread. There was evidence that the defendant operated a large department store, and let to a corporation called Concessions Development Corporation the privilege of operating a grocery department in the store; that there was no sign or other indication that the defendant itself did not operate the grocery department; that the defendant published advertisements under its own name, which the plaintiff read, of a sale of groceries; that on February 28, 1933, the plaintiff bought bread at the store with money given her by her husband for domestic use, took it home, and ate some of it; and that she was hurt by wooden splinters which were in the bread. There was evidence also that on March 1, 1933, the plaintiff's husband went to the grocery counter and saw a man whom he did not know who appeared to be working there and who, he presumed, was in charge, told the man of the plaintiff's injuries, and asked whether the manager was there. He was told to put the notice in writing. On the same day he mailed or delivered a letter, addressed to ‘Mr. Grant Grocery Dept. Joslin's' (Grant being in fact the manager of the grocery department), telling of the injuries to the plaintiff through eating the bread bought at the store, and adding, ‘we are holding the evidence both the bread and splinters for proof. Kindly notify your baker who I understand is Paramount Baking Co. Roxbury, Mass. as I am going to enter claim.’ On March 31, 1933, a physician employed by the defendant examined the plaintiff, and at the trial the attorney for the defendant produced the letter.

The judge, sitting without a jury, found for the plaintiff, subject to the defendant's exceptions to the refusal of certain requests for rulings.

The defendant's request numbered 13 was as follows: ‘Where the defendant sublets the bakery department of its store and has nothing to do with the operation of said department, and neither buys nor sells the products in that department, it does not make any contract with the plaintiff, who purchases the food in that department, and cannot be held liable for any breach of warranty made by the lessee of said department.’ This request was properly refused. There was evidence that the defendant had held itself out as the proprietor of that department, and that the plaintiff reasonably might consider that she was buying bread from the defendant. ‘Knowingly to lead a person reasonably to suppose that you offer, and to offer, are the same thing.’ Brauer v. Shaw, 168 Mass. 198, 200, 46 N.E. 617,60 Am.St.Rep. 387;Greany v. McCormick, 273 Mass. 250, 253, 173 N.E. 411;Finkelstein v. Sneierson, 273 Mass. 424, 428, 173 N.E. 703;Globe Ticket Co. of New England v. Boston Retail Grocers' Association, 290 Mass. 235, 238, 195 N.E. 309, and cases cited. Tudor Press, Inc., v. University Distributing Co., 292 Mass. 339, 341, 198 N.E. 244. It could be found that the defendant warranted the bread under G.L.(Ter.Ed.) c. 106, § 17(1).

Though it might have been found upon the evidence that the plaintiff bought the bread as agent for her husband and that a warranty ran to him (Groce v. First National Stores, Inc., 268 Mass. 210, 213, 167 N.E. 308;Holt v. Mann, Mass., 200 N.E. 403, it might equally well have been found that she was buying it for herself as principal (Groce v. First National Stores, Inc., 268 Mass. 210, 213, 167 N.E. 308;Cleary v. First National Stores, Inc., 291 Mass. 172, 175, 176, 196 N.E. 868), or that if she bought it as his agent she did not disclose the agency and consequently had a direct contractual relation with the defendant. Groce v. First National Stores, Inc., 268 Mass. 210, 213, 214, 167 N.E. 308, which 268 Mass. on page 212, 167 N.E. 308, explains Gearing v. Berkson, 223 Mass. 257, 111 N.E. 785, L.R.A.1916D, 1006. The defendant argues as error the refusal of its request numbered 15: ‘The plaintiff cannot recover on her count in contract if it is...