Massachusetts District Court, Appellate Division April 7, 1941 (Herbert v. General Baking Co.)

Hibbard, P. J.

This is an action of contract in which the plaintiff elected to proceed in contract to recover damages for personal injuries alleged to have been sustained by him by reason of the presence of a nail contained in a cake sold to him by the defendant. The action is in reality based upon an implied warranty as to the fitness of the cake for consumption by the plaintiff.