347 Mass. 421, 198 N.E.2d 309 (1964)
Plaintiff was injured when a fish bone lodged in her throat while dining at defendant's restaurant. Plaintiff brought suit alleging a breach of implied warranty under the Uniform Commercial Code. The trial court found for plaintiff. Defendant appealed and asserted that New England fish chowder is a hearty dish and no chef should be asked to reduce the pieces of fish to miniscule size in an effort to ascertain if they contained any pieces of bone.
- The court reviewed the history of fish chowder and found no recipes that instructed the cook to ensure that the fish was bone-free.
- The court found no breach of implied warranty because a restaurant customer such as plaintiff, eating fish chowder, should have anticipated having to remove some fish bones from her bowl.
- Therefore, the bone which injured plaintiff did not impair the fish chowder's fitness or merchantability.
- The court sustained defendant's exceptions and entered judgment for defendant.
The court sustained defendant's exceptions and entered judgment for defendant because the presence of a fish bone in a bowl of fish chowder should have been anticipated and guarded against by plaintiff and was not a breach of any implied warranty.
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