Fein v. National Biscuit Co.

In the statement of claim it is averred that Pearl Fein,, on December 22,1936, bought some chocolate marshmallow cakes in bulk form at the Quaker Delicatessen and Grocery in the City of Philadelphia; that these marshmallow cakes had been sold to the Quaker Delicatessen and Grocery by defendant in original sealed packages; that said marshmallow cakes were eaten by Pearl Fein and by her children, Edith Fein, Doris Fein, and Daniel Fein, all of whom were made ill thereby; that the cakes when eaten by plaintiffs were defective, in that they were mouldy, decomposed and wormy. The suit is in assumpsit on an implied warranty. An affidavit of defense has been filed raising questions of law.

*349We are of the opinion that separate suits should be brought on behalf of Pearl Fein, Edith Fein, Doris Fein and Daniel Fein, respectively. We are also of the opinion that the statement of claim is defective in that it does not aver that the harmful condition of the marshmallow cakes existed at the time they were sold by defendant to the Quaker Delicatessen and Grocery. There is no implied warranty in such case that the cakes will remain fit for-human consumption indefinitely. The warranty is that they are fit for human consumption at the time of the original sale and are in such condition that they will remain fit for human consumption for a reasonable time thereafter.

And now, to wit, May 14,1937, the affidavit of defense raising questions of law is sustained.