WILKINS, C.J.
The plaintiff drank milk from a container in which was a dead mouse. In this action of contract or tort the first count against H.P. Hood & Sons, Inc., the producer, is based upon negligence. The second count against B.J. Lang's Provision Company, Inc., which sold the container of milk, is for breach of warranty of merchantability. G.L.c. 106, § 17 (2). The case was first heard by an auditor whose findings of fact were not to be final. He found...
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