Perry

This is an appeal from a judgment entered in defendants’ favor rendered by the trial court sitting without a jury. The plaintiff’s action was for damages for personal injuries arising out of the use of a patent medicine which was manufactured by defendant Chemway Corporation and sold to the plaintiff by defendant Thrifty Drug Company.

The plaintiff, in his complaint, asserted four causes of action as follows: (1) breach of oral warranty by the drug company; (2) breach of implied warranty by the manufacturer; (3) breach of implied and expressed warranties by both defendants; and (4) negligence of both defendants. The plaintiff alleged that the defendants were given notice of the breach of warranty in causes of action (1), (2) and (4); but failed to allege the giving of such notice in his third cause of action.

By their answer, the defendants denied most of the material allegations of the complaint, including the allegations with respect to plaintiff’s giving notice of the alleged breaches of warranty.

At the pretrial hearing, the court adopted by reference a pretrial conference statement which was prepared by plaintiff’s counsel, but which was signed also by defendant’s counsel.…