Fuller v. Outlet Co.

Heard upon demurrer to declaration.

Action, trespass on the case for that ■plaintiff, relying on the skill and judgment of .defendant, purchased one chocolate covered cherry cocktail, and upon attempting to eat the same broke a tooth upon a piece of a nail imbedded in the same.

The action is not based upon negligence but upon an implied warranty on the part of defendant that said candy .contained no dangerous substance. The action is not brought against the maker of said .candy but against the retailer.

It is difficult to see how a retailer could warrant against a hidden defect as there was no privity of contract between plaintiff and defendant.

Demurrer sustained.

Minutilla vs. Providence Ice Cream Co., 50 R. I. 45-46.