food occurs (by the terms of the Sales Act, § 15, subd.1). Accordingly, there is an implied warranty it is reasonably fit for consumption, and the restaurant can be liable for breach of this contract, and not merely for negligence. 2 Food for immediate use, which is not fit to eat, is not merchantable as food. In an action for breach of an implied warranty of fitness of food served by a restaurant, whether plaintiff was or was not in the exercise of “due care” was immaterial; the term being one of the law of torts. Instead—whether the transaction established on the evidence between the plaintiff and the defendant be treated as a sale of food or as a contract for entertainment—there are relevant facts to be submitted to the jury, including: whether rational investigation of the character of the food was made by plaintiff, and whether its noxious nature should have been discovered. See also Ash v. Childs Dining Hall Co. References External links Compared to Ash v. Childs as an example of the Massachusetts pleading requirements. (Ash v. Childs) Compared to Ash v. Childs as an example of the Massachusetts pleading requirements. Law review article, written when the case was first handed down 1918 in United States case law Massachusetts state case law 1918 in Massachusetts United States tort case law Childs Restaurants