Ward v. Great Atl. & Pac. Tea Co.

• Decision Date: 11 September 1918
• Citation: 120 N.E. 225,231 Mass. 90
• Parties: WARD v. GREAT ATLANTIC & PACIFIC TEA CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 90

120 N.E. 225

WARD

v.GREAT ATLANTIC & PACIFIC TEA CO.

Supreme Judicial Court of Massachusetts, Essex.

Sept. 11, 1918.

Report from Superior Court, Essex County; Charles F. Jenney, Judge.

Action by Bliss B. Ward against the Great Atlantic & Pacific Tea Company. On report, on an agreed statement of facts, to the Supreme Judicial Court. Judgment ordered for plaintiff.

Action based on an implied warranty as to the proper condition of goods sold. Plaintiff suffered injuries in consequence of the presence of stones in a can of baked beans sold by defendant to plaintiff. In the superior court, on an agreed statement of facts, the case was reported to the Supreme Judicial Court.

Crosby, J., dissenting.

E. J. Carney, C. A. Green, and J. F. Doyle, all of Salem, for plaintiff.

Geo. R. Nutter, John E. Peakes, and Dunbar, Nutter & McClennen, all of Boston, for defendant.

RUGG, C. J.

The defendant conducts a retail grocery store at Ipswich. It had for sale at this store beans in sealed all tin cans, bearing this label:

‘Grandmother's Brand A & P Beans & Pork with Sauce, contents 2 lbs. 1 oz.’ ‘Remove contents of this can as soon as opened and place in earthenware dish.’ ‘The Great Atlantic & Pacific Tea Co., Incorporated, Distributors, Jersey City, N. J., U. S. A.’

These cans of beans were purchased by the defendant from the Thomas Canning Company, of Grand Rapids, Mich., after canning. It furnished the labels which were affixed to the cans by the manufacturer. The defendant had no supervision of the process of canning and no knowledge or means of knowledge that any foreign substance was in the cans. Such cans are always sold to the public in a sealed condition. The Thomas Canning Company is an independent reputable manufacturer of canned goods and in its processes employed all modern methods to prevent the presence of foreign substances in its products. Its goods were widely distributed and were considered to be of good quality by the wholesale and retail stores which handled them. On or about March 16, 1917, the defendant through the manager of its Ipswich store sold to the plaintiff one of these sealed cans of beans. At no time after the sealing of the can until it was opened by the plaintiff was there visible indication that the contents were in any way defective or that the can contained any foreign substance. The can contained baked beans, among which was a small pebble. The plaintiff was ignorant of its presence and, while eating the beans, broke his tooth on the pebble and later, on account of this injury, was obliged to have the tooth extracted.

The case comes before us by report on a case stated. No point is open as to the form of action or pleadings. The only question is whether the plaintiff can recover in any form of action. Smith v. Carney, 127 Mass. 179;Brettun v. Fox, 100 Mass. 234.

[2] The transaction between the plaintiff and the defendant as to the can of beans necessarily involved a purchase of food to be eaten. That need not be stated in precise words. It was an underlying and essential condition of the contract, implied without expression. It arose from the nature of the goods, the size of the purchase and the terms of the label. It is provided by the Sales Act (St. 1908, c. 237) § 15(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.’

That provision governs the relations of the parties in the case at bar. In this respect the statute is in substance, so far as concerns a dealer such as the defendant, simply a codification of the common law. It was said in Farrell v. Manhattan Market Co., 198 Mass. 271, 279, 280, 281, 84 N. E. 481, 485, (15 L. R. A. [N. S.] 884, 126 Am. St. Rep. 436,15 Ann. Cas. 1076) a case arising before the Sales Act:

‘Finally, provisions may be ordered by the purchaser in person in the dealer's shop, in such a way that it is made known to the dealer that his knowledge and skill are relied on to supply a wholesome food, and, if they are so ordered, he is liable if they are not fit to be eaten. * * * If the sale is by a dealer and the selection of food is left to him, it is an implied term or condition of the sale that the provisions sold shall be fit for food whether supplied under a preexisting contract * * * or in response to an order not given in person * * * or even when the order is given in person in the dealer's shop, provided * * * that the selection is left to the dealer. * * * But, even when the sale is by a dealer, if the provisions are selected by the buyer and the selection is not left to the judgment and skill of the dealer, the general rule applies and the dealer is not liable (in the absence of knowledge by the dealer that the provisions are unsound) if provisions are not fit for food.’

The opinion in that case contains an exhaustive review of the authorities. See, also, in this connection, Race v. Krum, 222 N. Y. 410, 414,118 N. E. 853;Cook v. Darling, 160 Mich. 475-481, 125 N. W. 411;Parks v. C. C. Yost Pie Co., 93 Kan. 334-337, 144 Pac. 202, L. R. A. 1915C, 179, and note L. R. A. 1917F, 472 to 475.

That statement of the law, which is but an amplification so far as relates to the case at bar of the terms of the Sales Act, governs the facts here presented. The defendant was a dealer, the plaintiff a buyer at retail. There arises inevitably the implication that the plaintiff made known to the defendant that he was purchasing the beans for consumption as food and that he was relying, because from the character of the transaction he was bound to rely, upon the skill of the defendant in selecting the can which was offered to him.

[3] It is not expressly stated in the agreed facts that the defendant selected the can for delivery to the plaintiff, or that the latter relied upon the skill and judgment of the defendant in selecting the can for delivery. But that he did so rely seems an almost irresistible inference from the facts stated. The cans in the defendant's stock were all alike in label, and in general appearance. The cans were sealed. Their contents could not in the nature of things be open to inspection before the sale. There could be no intelligent selection based upon any observation by the purchaser. There is no room for the exercise of individual sagacity in picking out a particular can. The customer at a retail store is ordinarily bound to rely upon the skill and experience of the seller in determining the kind of canned goods which he will purchase, unless he demands goods of a definite brand or tradename. The situation is quite different from the choice of a fowl or a piece of meat from a larger stock, all open to inspection, where there is opportunity for the exercise of an independent judgment by both the buyer and the seller, and where, therefore, the fact as to the one who makes the selection is of significance, as in the Farrell Case. The case at bar must be treated on the footing, as matter of necessary inference arising from the relation of the parties, so far as that is material in view of the other facts, that the plaintiff relied upon the knowledge and trade wisdom of the defendant in purchasing the can of beans. In the absence of an express statementto the contrary, this must be regarded as a necessary inference from the relation of parties.

There appears to us to be no sound reason for ingrafting an exception on the general rule, because the subject of the sale is canned goods, not open to the immediate inspection of the dealer, who is not the manufacturer, any more than of the buyer. It doubtless still remains true that the dealer is in a better position to know and ascertain the reliability and responsibility of the manufacturer than is the retail purchaser. But the principle stated in Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481,15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436,15 Ann. Cas. 1076, is a general one. It has long been established. Simply because it may work apparent hardship in certain instances is no reason for changing it to fit particular cases. It is a salutary principle. It has become wrought into the fabric of the law as the result of long experience. It may be assumed that the affairs of mankind have become adjusted to it. It has recently been adopted by the Legislature in codifying the law as to sales. It imposes liability in the absence of an express contract between the parties governing the subject. It places responsibility upon the party to the contract best able to protect himself against original wrong of this kind, and to recoup himself in case of loss, because he knows or comes in touch with the manufacturer. In the case at bar the plaintiff had no means of ascertaining the manufacturer from inspection of the goods bought. The retail purchaser in cases of this sort ordinarily would be at some disadvantage if his only remedy were against the manufacturer.

[4] It was said by Farwell, L. J., in the course of a judgment in the Court of Appeal in Jackson v. Watson & Sons [1909] 2 K. B. 193, at 202:

‘The plaintiff sues for breach of contract of warranty of fitness for human food of certain tinned salmon supplied to and eaten by himself and his wife, and there is not (and indeed since Frost v. Aylesbury Dairy Co., [1905] 1 K. B. 608, there could not well be) any question as to the sufficiency of his cause of action; the only question is as to the damages.’

The Frost Case related to a sale of milk by a retail dealer. Both cases arose under the English Sale of Goods Act, § 14, subsec. 1, quoted at length in Farrell v. Manhattan Market Co., 198 Mass. 278, 279, 84 N. E. 481,15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436,15 Ann. Cas. 1076, which does not differ in any particular material to the...