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and was obtaining a profit from the sale of that product; and it was found by the superior court, with manifest correctness, that the plaintiff would have purchased these inventions if the defendant had performed the duty of fidelity which he owed to it both as a director and as a servant.

Accordingly, the plaintiff's exception to the ruling of the master excluding the above-mentioned vote and assignment was properly sustained; and the ruling that the plaintiff was entitled to assignments of this patent and of this application was right.

It is not necessary to consider the defendants' exceptions in detail after what already has been said. They were all rightly overruled.

It was for the judge, in the exercise of his discretion, to determine whether it would recommit the master's report as requested at different times by each party: Henderson v. Foster, 182 Mass. 211 447, 65 N. E. 810; Eddy v. Fogg, 192 Mass. 543, 78 N. E. 549. We find no error in the manner in which that discretion was exercised. Accordingly, we need not consider a large number of the plaintiff's exceptions, which are stated in the brief of its counsel to depend upon this motion. There appears to be no error in the rulings of the superior court upon the other exceptions.

It was also wholly in the discretion of the judge to determine whether it would issue, continue or dissolve an injunction, and what terms, if any, it would impose upon either party, and whether it would require the plaintiff to give any bond as a condition of issuing an injunction. And, no bond having been ordered or given, the judge correctly ruled that the defendants were not entitled to an assessment of the damages sustained by them by reason of the injunction restraining them from disposing of the patents which by the final decree they were allowed to retain. In Meyers v. Block, 120 U. S. 206, 7 Sup. Ct. Rep. 525, 30 L. ed. 642, it was said by Bradley, J.: "Without a bond no damages can be recovered at all. Without a bond for the payment of damages or other obligation of like effect, a party against whom an injunction wrongfully issues can recover nothing but costs, unless he can make out a case of malicious prosecution. It is only by reason of the bond, and upon the bond, that he can recover anything." Many other cases to the same effect are collected in 22 Cyc. 1061. The defendant, as to the matters in which the plaintiff fails of final recovery, is in the same condition as one whose property was attached in a suit at law which the plaintiff finally has failed to maintain.

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yond such costs as he may be entitled to recover, his only remedy is by an action for malicious prosecution or malicious abuse of legal process: Zinn v. Rice, 154 Mass. 1, 27 N. E. 772, 12 L. R. A. 288; Lindsay v. Larned, 17 Mass. 190. Cases which have been decided as to the remedy where an injunction bond has been given are not applicable here: Russell v. Farley, 105 U. S. 433, 26 L. ed. 1060; Carpenter v. Fisher, 68 N. II. 486, 73 Am. St. Rep. 616, 38 Atl. 211. It was not necessarily unjust that the defendants should have been restrained from disposing of any of these patents until a final determination of the rights of the parties could be reached. If there were any special circumstances to be considered, they were doubtless brought to the attention of the superior court. But there are some irregularities in the final decree entered in 212 the superior court which ought to be noticed. The decree does not state what amount is to be paid by the plaintiff for the acquirement of one of the patents or of the pending application for a patent, but leaves blanks for these amounts, and provides for a future application to the court to determine them. These questions should not be left open in a final decree. And the defendant should not be required absolutely to make assignments of all the patents for which he is held. As to each of these, the plaintiff has an option whether to take it at the price found by the court or not. The order should be as to each patent that the female defendant assign it to the plaintiff upon payment by the plaintiff of the sum found as to that patent by the court: Hill v. Hall, 191 Mass. 253, 77 N. E. 831. Nor should the decree be without prejudice to the rights of the defendants or either of them to recover royalties or license fees under any of the patents. This should be limited to the four patents which the defendants are allowed to retain. And it should also be without prejudice to the right of the plaintiff to claim that it is entitled to a shop right or license under each of these patents. With these modifications, the decree of the superior court should be affirmed, and it is so ordered.

The Right as Between Employer and Employé to inventions made by the latter is the subject of a note to Dempsey v. Dobson, 52 Am. St. Rep. 820. In Dempsey v. Dobson, 184 Pa. 588, 63 Am. St. Rep. 809, it is affirmed that designs and recipes made by an employé are, as between him and his employer, the property of the latter for the purpose of his business; and although there is a patent issued to the employé for his formula, the right of the employer to continue its use in his business remains.

FARRELL v. MANHATTAN MARKET COMPANY. [198 Mass. 271, 84 N. E. 481.]

TORT may be Maintained for the Breach of a Warranty as well as an action of contract. (p. 438.)

TORT, Scienter in, When Need not be Proved. In tort for a false warranty, the scienter need not be alleged, and if alleged, need not be proved. (p. 438.)

SALE OF FOOD-Purpose of Purchase Need not be Stated to the Dealer.-A contract for the supply of food, without stating the purpose for which it is required, stands on the same footing as a contract to supply other articles when the particular purpose for which they are wanted has been stated to the dealer. (p. 442.)

FOOD, Liability of the Seller for Unwholesomeness of.-Provisions may be ordered by the purchaser in person in the dealer's shop in such a way as to make known to him that his knowledge and skill are relied upon to supply wholesome food, and if they are so ordered, he is liable if they are not fit to be eaten. (p. 442.)

SALE OF FOOD by One not a Dealer-Implied Warranty.— There is no implied term or condition that articles of food sold by one not a dealer are fit to be eaten. (p. 448.)

SALE-Food, Effect of Offering for Sale.-An offer of food for sale by a dealer is an implied representation that it is believed to be sound, but where there is no implied term or condition of soundness, the seller is not liable unless he knows that the food sold is not fit to be eaten. (p. 448.)

SALE OF UNFIT FOOD-Burden of Proof.-In an action to recover for injuries resulting from a sale of unfit food under an allegation that the food was sold by the defendant with an implied warranty that it was fit for food, the burden is on the plaintiff to prove that, in making the purchase, it relied on the skill and judgment of the defendant or his employé in selecting the article sold, and this burden is not met by showing that the food consisted of a fowl exhibited on a Saturday night in July, on a bargain counter, and offered at less than the usual rates, though the defendant's salesman affirmed that it was strictly fresh. (p. 448.)

A DEALER is not Liable for Selling Unfit Food, on the Ground of Negligence, when he offers several articles for sale, from which the buyer makes his selection. By such offering the dealer impliedly represents that he believes the article to be fit for food, and is not liable to a purchaser made ill by eating the food, when there is no evidence that the dealer knew it was unfit. (p. 450.)

Three actions of tort, one in favor of the mother and the others in favor of her two children, seeking to recover for injuries suffered by them from eating food sold by the defendant. The complaints alleged substantially that the defendant and his agents negligently sold her as food and with an implied warranty that it was fit, a certain slaughtered fowl, which was not safe for eating, but was poisonous; that thereupon the fowl was cooked and a part of it eaten by the plaintiff, who was made sick thereby because of its poisonous quality, and was severely injured in body and mind; that

the defendant knew, or in the exercise of reasonable care or diligence should have known, that this fowl was unfit for food, and that the plaintiff exercised due care, while the defendant, its servants and agents were negligent.

The trial judge directed a verdict for the defendant. The plaintiffs alleged exceptions.

M. A. Sullivan, for the plaintiffs.

H. T. Richardson, for the defendant.

273 LORING, J. These cases come up on an exception to a ruling directing a verdict for the defendant.

The plaintiff in the third case (whom we shall speak of as the plaintiff) was the mother of those in the other two. The defendant is a corporation engaged in carrying on a retail market and provision store. The jury were warranted in finding the following to be the facts in the case:

On a Saturday evening in July the plaintiff, in the words of the bill of exceptions, "purchased a chicken from one of the salesmen" of the defendant. She asked the salesman if it was a cold storage fowl, and he answered, "Don't you know a good thing when you see it? It's strictly fresh." She paid twelve and a half cents a pound, the price "having been reduced from twenty-five cents per pound, which was the defendant's custom on Saturday night in several of its departments."

The next morning at 10 o'clock she removed the entrails, washed the fowl, wiped, boiled and then roasted it, and at 4 o'clock she and the other two plaintiffs ate a portion of it and were made sick; what they suffered from was ptomaine poisoning.

The plaintiff introduced expert evidence that, if the chicken was not fit for food, there would be a discoloration "from the neck down the length of the backbone; that, if no such discoloration were visible, the chicken was fit for food unless it had eaten some poisonous substance, which might be shown by an examination of the crop if the meat itself were diseased; all of which could be ascertained upon inspection by anyone familiar with the examination of chickens." The plaintiff testified "that she noticed no such discoloration of any kind at any time."

It appeared "that the defendant requested its customers not to handle fowl before purchasing, which was known to the plaintiff, but that nothing was said to her in this particular at the time of the sale, and that this request was fre

quently ignored by customers, which fact was not known to her."

At the conclusion of the evidence the plaintiffs requested the judge to rule "that a retail dealer in provisions selling chicken under the circumstances in this case impliedly warranted the chicken fit for food"; also, "that it was a question of fact for 274 the jury to say whether or not the chicken was fit for food, whether or not the plaintiffs were injured by eating of diseased chicken, and whether or not the defendant was negligent in failure to make a sufficient and proper examination of the chicken before selling it to the plaintiff for consumption." The presiding judge "declined to give the plaintiffs' requests, saying that he did not feel called upon to make such ruling, and ruled that there was not sufficient evidence that would warrant the jury in finding a verdict for the plaintiffs, and ordered a verdict for the defendant in all three cases.

It was held in Norton v. Doherty, 3 Gray, 372, 63 Am. Dec. 758, on the authority of Williamson v. Allison, 2 East, 446, that tort for a false warranty as well as an action of contract lies in case a chattel is sold with warranty and the warranty is broken. A number of earlier English cases to the same effect are collected by Holmes, J., in Nash v. Minnesota Title Ins. Co., 163 Mass. 574, 47 Am. St. Rep. 489, 40 N. E. 1039, 28 L. R. A. 753, and the proposition is there repeated. To the same effect, see Emmons v. Alvord, 177 Mass. 466, 59 N. E. 126, and Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 86 Am. St. Rep. 478, 59 N. E. 657, 51 L. R. A. 781. In tort for a false warranty the scienter need not be alleged, and, if alleged, it need not be proved: Shaw, C. J., in Norton v. Doherty, 3 Gray, 372, 63 Am. Dec. 758; Holmes, C. J., in Nash v. Minnesota Title Ins. Co., 163 Mass. 574, 47 Am. St. Rep. 489, 40 N. E. 1039, 28 L. R. A. 753, and Emmons v. Alvord, 177 Mass. 466, 59 N. E. 126.

We assume, therefore, that an action of tort may be maintained for breach of a warranty. In the case at bar the plaintiff has alleged that the defendants sold the fowl to the plaintiff with the implied warranty that it was fit for food. The principal question in the case is whether that allegation has been made out.

In Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 608, it was decided that, in the sale of a cow by a farmer to a butcher to be cut up for meat, there was no implied warranty that it was fit for that purpose. After stating the general rule to be that in a sale of goods the maxim "caveat

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