RALPH NUGENT vs. POPULAR MARKETS, INC.

WILKINS, C.J. In this action of contract the plaintiff seeks to recover for injuries to his mouth caused by wood splinters in a jar of boysenberries. The declaration is in two counts, one for breach of warranty of fitness for use and one for breach of warranty of merchantability. In the

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District Court there was a finding for the plaintiff on each count. The defendant claimed a report. In the Appellate Division the findings were vacated, and judgment ordered for the defendant. The plaintiff appealed.

At the trial there was evidence tending to show that the plaintiff purchased food, including the boysenberries, at the Popular Market, where he usually shopped for groceries, in the Sixteen Acres shopping center in Springfield about six o'clock in the evening of August 6, 1963, and that that evening the plaintiff suffered injury while eating the boysenberries.

The plaintiff's counsel sent the following letter:

Popular Markets, Inc.
1899 Wilbraham Road
Springfield, Mass.

Gentlemen:

On behalf of Ralph Nugent, 163 Westbrook Drive, Springfield, notice is herewith given you that on August 6, 1963 at about 9:00 p.m. Mr. Nugent suffered personal injuries when he ate Del Monte boysenberries purchased from your store which caused damage to his mouth and gums.

The above mentioned boysenberries were unfit for human consumption in that they contained a foreign object, namely wood. Mr. Nugent intends to assert his legal rights for damages.

Very truly yours,

Douglas R. Winniman

The Appellate Division held that it was error to deny the defendant's request for a ruling that the evidence did not warrant a finding that the defendant sold the plaintiff the goods described in the declaration. Its opinion stated that there was no evidence that the defendant owned or operated a market for the sale of foods at Sixteen Acres in Springfield. Reliance was placed on Herman v. Fine, 314 Mass. 67, 68-69, where it was said, "In this Commonwealth `bald identity of name without confirmatory facts or circumstances' seems never to have been considered quite

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sufficient to prove identity of person. Ayers v. Ratshesky, 213 Mass. 589, 593, 594, where the cases are discussed. . . . Although very slight evidence might have been enough, at least something more than identity of names was necessary." The cases confirm that very slight evidence in addition to identity of name or names might be enough to prove identity of person. We cite a few. Ayers v. Ratshesky, 213 Mass. 589, 593-595. Souza v. Metropolitan Life Ins. Co. 270 Mass. 189, 192. Vieira v. Balsamo, 328 Mass. 37, 39-40.

In the case at bar there is such evidence of identity of person. The opinion of the Appellate Division does not mention the plaintiff's letter of August 7 to Popular Markets, Inc. The report states that the letter (not a copy) was "introduced." The original must have been produced by the defendant. Although it may be assumed that it was offered to prove notice of breach of warranty, it was not admitted for that limited purpose. Consequently, it became entitled to probative effect as tending to prove the truth of the statements it contained, including the fact that it was at the defendant's store that the plaintiff purchased the boysenberries. Ryan v. Di Paolo, 313 Mass. 492, 494. Pochi v. Brett, 319 Mass. 197, 203-204.

By G. L. c. 155, Section 9, [Note 1] in effect as to the defendant at the time of the sale, a corporation "shall not assume the name or trade name of another corporation established under the laws of the commonwealth, or of a corporation, firm, association or person carrying on business in the commonwealth . . . or assume a name so similar thereto as to be likely to be mistaken for it, except with the written consent of the said existing corporation, firm or association or of such person previously filed with the secretary [of the Commonwealth]."

It is unlikely that there were two separate businesses in Springfield both having "Popular Market" or "Popular Markets" as part of their name. In Doyle v. Continental

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Baking Co. 262 Mass. 516, the plaintiff was injured by a piece of metal in a loaf of bread, the wrapper of which bore the words "Massachusetts Baking Company" and "Trade Mark Registered U.S. Pat. Off." The defendant was shown to have had the trade name "Massachusetts Baking Company" at the time the bread was sold. By Federal law no one except the defendant baking company had the right to use this name. It was held that the defendant baking company could be found to have been the seller. Similarly, in the case at bar the defendant Popular Markets, Inc. could have been found to be the seller. The fact that the letter was addressed to 1899 Wilbraham Road without disclosing a location in the Sixteen Acres shopping center, but was delivered to the defendant, is a circumstance cutting both ways. That circumstance surely is not controlling in the defendant's favor.

Since there was more than mere bald identity of name, it was error to rule that the defendant's first request for a ruling should have been granted.

The defendant further contends that the letter was not a sufficient notice of breach of warranty. It objects that the notice did not give the date of the sale. The applicable statute is the Uniform Commercial Code, G. L. c. 106, as appearing in St. 1957, c. 765, Section 1, effective October 1, 1958, which superseded the previous Sales Act in G. L. c. 106. The Code provides in Section 2-607: "(3) Where a tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy."

We have seen no decision by a court of last resort discussing what is adequate notice of breach of warranty under the Code. The comment to Section 2-607 (Am. Law Inst. Uniform Commercial Code, 1962 Official Text with Comments, [p. 167] reads: "`A reasonable time' for notification from a retail consumer is to be judged by different standards [from notification by `a merchant buyer'] so that in his case it will be extended, for the rule of requiring notification is designed to defeat commercial bad faith, not

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to deprive a good faith consumer of his remedy. The content of the notification need merely be sufficient to let the seller know that the transaction is still troublesome and must be watched. There is no reason to require that the notification which saves the buyer's rights under this section must include a clear statement of all the objections that will be relied on by the buyer. . . . Nor is there reason for requiring the notification to be a claim for damages or of any threatened litigation or other resort to a remedy. The notification which saves the buyer's rights under this Article need only be such as informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiation."

As a possible aid in interpretation we consider the Sales Act, Section 38 of which provided that "if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of . . . warranty within a reasonable time . . . , the seller shall not be liable therefor."

Section 38 prescribed neither form nor substance of the notice, but cases arising under that section have declared certain principles about notice. "Where practicable, it should refer to particular sales and it must fairly advise the seller of the alleged defects. Although the notice need not take the form of an express claim for damages, or threat of such, it ought to be reasonably inferable therefrom that the buyer is asserting a violation of his legal rights." Lieberman v. W. M. Gulliksen Mfg. Co. 332 Mass. 439, 442-443.

It is manifest from the comment to the Code that the notice of breach required by Section 2-607 was intended to be less rigorous than that required by Section 38 of the Sales Act, at least so far as applied to a household purchaser rather than a "merchant buyer."

The notice was definite as to the name brand of the jar of boysenberries, and as to the time of the plaintiff's injuries which were on the evening preceding the date of the letter. It was, of course, possible to give the exact date of the purchase,

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but we are not disposed for this reason alone to act contrary to the comment to the Code, and to deprive a good faith retail consumer of his remedy by relying on the rule requiring notification, which is designed to defeat commercial bad faith. If the content of the notification need merely alert the seller to a claim of breach and so to lead to normal settlement through negotiation, after the receipt of the letter there would have been nothing to prevent the seller from seeking further information as to the date of the transaction and any other circumstances it wished to know.

The circumstances of the sale in the case at bar do not appear in the record. But the defendant's brief contains references to "this day of self-service merchandising," and to "this age of self-service marketing." Hence it may be inferred that this was the method of sale in the case at bar. Where sale is by self-service and payment through a check-out counter, the precise date would not provide as helpful information to the seller as would the brand name of fruit in a jar. There is no indication of variations in the content of jars of Del Monte boysenberries in the possession of the defendant. See McCabe v. Liggett Drug Co. Inc. 330 Mass. 177, 179, 181-182. The defendant was a retail seller and inferentially not the manufacturer.

The orders of the Appellate Division are reversed, and judgment is to be entered for the plaintiff in accordance with the findings of the District Court.

So ordered.