Whittemore v. Pepsi-Cola Bottling Co.

Order dismissing report affirmed. This action of contract was brought in a District Court to recover compensation for injuries alleged to have been sustained by the plaintiff by reason of the explosion of a bottle of pepsi-cola which the plaintiff had purchased from the defendant, tile action is based upon a breach of an implied warranty of merchantability under G. L. (Ter. Ed.) c. 106, § 17 (2). The report states that there was evidence which would “justify a finding that there was a breach of implied warranty of merchantability under the statute,” and that *759“notice of the accident” was given by the plaintiff to the defendant within a reasonable time. The judge granted the defendant’s fourth request, which asked for a ruling that the plaintiff could,not recover because of his failure to give a proper notice under G. L. (Ter. Ed.) c. 106, § 38. There was a finding for the defendant. A report to the Appellate Division was dismissed, and the plaintiff appealed. There was no error. The notice here is not essentially different from that held to be insufficient in the recent case of Howard v. Lowell Coca-Cola Bottling Co. 322 Mass. 456, 460-461, and that case rather than Morin v. Stromberg, 309 Mass. 146, cited by the plaintiff, is controlling.