Opinion
December 3, 1948.
J.P. Healey, ( W.J. O'Neill with him,) for the plaintiff.
K.C. Parker, ( P.S. Ratzkoff with him,) for the defendant.
Exceptions overruled. Motion to amend count 3 of the declaration denied. In this action of contract or tort for personal injuries caused by the use of a hair dye purchased from the defendant, count 2 of the plaintiff's declaration was waived; on count 1, alleging breach of an express warranty of fitness, the jury returned a verdict for the defendant; and on count 3, alleging breach of an implied warranty of merchantability, the jury returned a verdict for the plaintiff. The plaintiff excepted to the entry under leave reserved of a verdict for the defendant on count 3, but now concedes that there was no evidence to sustain that count. There remains before us a motion of the plaintiff to amend count 3 by substituting a count alleging breach of an implied warranty of fitness. It is the plaintiff's contention that the case in fact was tried on the theory of breach of such a warranty and that justice requires that permission be now given to amend. It does not appear from the record that evidence offered at the trial was intended to support allegations other than those contained in counts 1 and 3. In charging the jury as to count 3, the judge expressly stated that it was "based on an implied warranty of merchantability." Although at the request of the plaintiff, the judge gave without objection certain rulings which seem foreign to the warranties referred to in the pleadings, there appears to have been no misunderstanding by the court or counsel as to the issues involved. It is noted that the action was brought in 1943; count 3 was added by amendment in 1945; the bill of exceptions was allowed in May, 1948; no motion to amend was filed the Superior Court; and the instant motion was first presented to this court at the time of oral argument on November 3, 1948. The interests of justice do not require its allowance by this court at this time. See Noyes, v. Noyes, 224 Mass. 125, 134; Johnson's Case. 242 Mass. 489; Pizer v. Hunt, 253 Mass. 321, 331, 332; New England Foundation Co. Inc. v. Elliott Watrous, Inc. 306 Mass. 177. 181.