Jamrog v. H. L. Handy Co‪.‬

CROSBY, Justice. This is an action of contract in which the plaintiff seeks to recover damages for an alleged breach of warranty in the sale of turkeys to him. One Zytkiewicz, a witness called by the plaintiff, testified in substance that on or about October 4, 1928, he was in the employ of the defendant as a salesman; that he knew the plaintiff was a customer of the defendant; that on or about the above date the plaintiff ordered from him six turkeys at the plaintiff's place of business in Amherst; that he knew they were for a Mrs. Hawkins, who kept a boarding house and catered to students, and he gave the order to the defendant, and he knew that the turkeys were delivered; that on his next trip to Amherst, on the Monday following the Saturday on which the turkeys were delivered, he had a talk with the plaintiff who told him that he had one turkey left over, and that Mrs. Hawkins said the turkeys were 'off condition.' This witness further testified that he had never been instructed by his superiors in the defendant company as to what he could do, or what the company would do with reference to guaranteeing its products. The plaintiff testified that when he gave the order he asked Zytkiewicz if he could get good, sound turkeys for Mrs. Hawkins' Sunday dinner, and the reply was 'Yes, I can get you good turkeys. * * * I can get you good and I guarantee they be good, sound turkeys.' The plaintiff further testified that on the Monday following the Saturday he delivered the turkeys, Mrs. Hawkins told him the turkeys poisoned the people who ate them. A letter dated May 6, 1930, written by the plaintiff's attorney to the defendant notifying it that this plaintiff was sued by Mrs. Hawkins on the ground that poisonous turkeys had been sold her and that the H. L. Handy Company would be charged with any expenses and costs the plaintiff was put to resulting from that suit was offered in evidence. The files in the clerk's office of the superior court for Hampshire county were in evidence showing that in an action of Mrs. Hawkins against the present plaintiff execution had issued for $2,639.74. See Hawkins v. Jamrog, 277 Mass. 540, 179 N.E. 224, 79 A. L. R. 979. It is agreed by the parties that if the plaintiff is entitled to recover the damages should be $3,890. At the close of the plaintiff's case the defendant rested and presented a motion for a directed verdict in its favor, which was denied subject to the defendant's exception. The defendant on being asked to specify the grounds entitling it to a directed verdict stated (1) that no notice was given as required by G. L. (Ter. Ed.) c. 106, § 38, and (2) that the plaintiff knew or ought to have known whether the turkeys were unsound or bad. The case was submitted to the jury under full and appropriate instructions, and a verdict was returned for the plaintiff in the agreed amount.