SALES - IMPLIED WARRANTY - LIABILITY OF A WATER COMPANY

Defendant, a city engaged in supplying water to its inhabitants, was sued by plaintiff, a consumer, for injuries resulting from plaintiff's drinking of lead-poisoned water at a faucet in his home. The water, although pure at the meter, became poisoned when passing through a lead pipe inspected and approved by the water company but owned by the plaintiff. Plaintiff brought his action on two different theories: (1) on implied warranty; (2) in negligence. The trial court instructed the jury without exception or objection from defendant that they might find for plaintiff, under either of these theories.

The defendant was successful in the trial court, but plaintiff appealed on the ground that he was entitled to have the jury instructed to the effect that, although the sale was made at the water meter, the defendant was liable to furnish wholesome and pure water at the faucet. Held, since defendant failed to except to the instructions of the trial court as to his liability on implied warranty, this instruction became "the law of the trial," but since plaintiff was entitled to the instructions he requested, the judgment must be reversed. Horton v. Inhabitants of North Attleboro, (Mass. 1939) 19 N. E. (2d) 15.