Home EMERY R. WILLIAMS vs. BENTON PARK PACKAGE STORE, INC.

1 Mass. App. Ct. 844

September 24, 1973

This is an action of contract for breach of warranty arising out of the sale of a can of beer containing an insect. The case was tried to a District Court judge after having been transferred to the District Court under the provisions of G. L. c. 231, Section 102C. There was a finding for the plaintiff in a nominal amount. At the trial in the Superior Court upon retransfer, the finding of the District Court was admitted in evidence, and there was testimony that the plaintiff drank some of the beer, observed an insect in the beer can and shortly thereafter became ill. At the conclusion of the plaintiff's case the judge, subject to the plaintiff's exception, directed the jury to return a verdict for the defendant. The only question for our decision is whether that action by the judge was correct. The decision of the District Court was "prima facie evidence upon such matters as are put in issue by the pleadings" (G. L. c. 231, Section 102C) and was evidence warranting a verdict for the plaintiff. Lubell v. First National Stores, Inc. 342 Mass. 161 , 164 (1961). See Fulton v. Gauthier, 357 Mass. 116 , 118 (1970). The case should have been submitted to the jury.

Exceptions sustained.

Home FISKE'S GARDEN CENTER, INC. vs. SYDNEY CONSTRUCTION COMPANY, INC. & others. [Note 1]

1 Mass. App. Ct. 844

September 25, 1973

The general contractor on a public construction project and its surety on the bond required by G. L. c. 149, Section 29 (as amended through St. 1964, c. 609, Sections 4 and 5) have appealed from a final decree entered in the Superior Court (on a bill filed under Section 29) establishing their respective liabilities to the plaintiff, a sub subcontractor which furnished labor and materials incorporated in the project. As the evidence clearly warranted (if indeed it did not require) a finding that the labor and materials furnished by the plaintiff on October 2, 1969, were furnished pursuant to the plaintiff's obligations under its original sub subcontract, there was no error in the court's ruling with respect to the timeliness of the sworn statement of claim filed by the plaintiff twenty-five days later. Warren Bros. Roads Co. v. Joseph Rugo, Inc. 355 Mass. 382 , 386 (1969). Ross v. Planet Ins. Co. 361 Mass. 852 , 853 (1972). Cf. Peerless Unit Ventilation Co. Inc. v. D'Amore Constr. Co. 283 Mass. 121 , 123-125 (1933); Armco Drainage & Metal Products, Inc. v. Framingham, 332 Mass. 129 , 131-133 (1954). Nothing in the evidence required a finding that the labor and materials furnished on the above date were furnished pursuant to a new and independent agreement between the plaintiff and the general contractor (as to which see Peerless

Page 845

Unit Ventilation Co. Inc. v. D'Amore Constr. Co. 283 Mass. 121 , 125 [1933]; Socony-Vacuum Oil Co. Inc. v. Lynn, 306 Mass. 165 , 167-168 [1940]). As there was no such finding, the final decree must be modified to reflect liabilities in the amount of only $6,000, and to compute interest on that amount from October 27, 1969 (Di Fruscio v. New Amsterdam Cas. Co. 353 Mass. 360 , 363-364 [1967]). As so modified the decree is affirmed. The plaintiff is to have costs of this appeal.

So ordered.


FOOTNOTES

[Note 1] Planet Insurance Company and the Winchendon Housing Authority. The latter filed an answer but took no part in the proceedings below or in this court.