Continuing to mix my business with pleasure, I pass along this fine prose from Ballarin, Inc. v. Licensing Board of Boston, 49 Mass. App. Ct. 506 (2000):

For some diners, consuming an appetizer of duck liver pâté, rolled in pistachio, lingonberry coulis, served with garlic pita points, followed by an entrée of venison au poivre, finished with a dessert of chestnut mousse gateau, apricot glacé, is still more rapturous if preceded by a dry martini or ended with a cognac. To satisfy that want, Ballarin, Inc., which operates The Hungry I restaurant at 71 1/2 Charles Street at the foot of Beacon Hill in Boston, applied in 1995 to the licensing board for the city of Boston for a seven-day all-alcoholic beverages license….

…At what was to be a first hearing on Hungry I’s application before the licensing board, proponents and opponents of the award of an all-alcoholic beverages license made known their views, by speech and writing. Among Hungry I’s adherents were some abutters and many patrons, one of whom touted the salubrious tendency of a Bloody Mary to increase levels of good cholesterol. Those opposed mustered all the political artillery–the Beacon Hill Civic Association and elected public officials. The principal argument advanced against granting the application was “opening of the floodgates”; i.e., were Hungry I to receive an all-alcoholic beverages license, how could the licensing board say no to others? The neighborhood would go down the drain….

Foreigners to Massachusetts might get the impression that rhetorical flourish is a sine qua non of our judicial appointees. Would that it were the case.

Filed under: Massachusetts

The previous post regarding California Judge Sill’s memorable opinion causes me to reflect on some of the more memorable opinions that form the landscape of Massachusetts jurisprudence over the years.

Perhaps one of the finest works of prose ever to constitute a legal opinion was crafted by Judge Paul Reardon, Chief Judge of the Massachusetts Supreme Judicial Court, in the case of Priscilla Webster v. Blue Ship Tea Room, 347 Mass. 421 (1964).

It seems that Ms. Webster, a native of New England (“a fact of some consequence,” noted the judge) patronized the Blue Ship Tea Room one day for a bowl of fish chowder, which contained haddock and potatoes (“in chunks (also a fact of some consequence),” noted the judge). While she was eating the chowder, a fish bone became lodged in her throat, and grievous injury ensued (the nature and extent of which were not in issue).

Ms. Webster sued the restaurant under a theory of breach of impled warranty of mercantability.

The Court determined that there was no breach of warranty, because one eating fish chowder in a restaurant on Boston Harbor ought to expect that a good chowder will have bones in it. But it is the language of Judge Reardon’s explanation that elevates the opinion to art form.

Rather than a dry recitation of legal holding suitable for a west keynote citation, Judge Reardon articulated the warranty holding in this fashion:

“No chef is forced to reduce pieces of fish in chowder to miniscule size in an effort to ascertain if they contain any pieces of bone, and a fish bone lurking in fish chowder, about the ingredients of which there is no other complaint, does not constitute a breach of implied warranty under the Uniform Commercial Code.”

After noting the defendant’s exhortation that “this court knows well that we are not talking of some insipid broth as is customarily served to convalescents” and quoting Daniel Webster’s recipe for fish chowder in a footnote, the Court observed:

“It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks upon a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds.”

Not only is the case noteworthy for its prose, but it also has been incorporated into law school contracts classes from coast to coast. Note the Google results.

The opinion is only available via subscription legal research sites, but anyone desiring a complete copy may leave a request in the comments and I will reply with atttachment. Please enjoy reading of this delightful bone of contention.

Filed under: Massachusetts