This is an action for alleged breach of contract and resulting damages. Plaintiff, William A. Baum, doing business as William Baum Company, ordered automobile tubes from the defendants, Joseph Segal, George-Simon and Bernard Fields, doing business as the S. S. Tire Service Company. by the following writing:
“Order No. 4651
'For: S & S Tire Service Corporation 1500 Broadway Camden, N. J.
Merchan-2000 (Two Thousand) new dise: inner tubes (butyl) for passenger cars 600 x 16; Robbins or other recognized brand.
Price $2.61 net each, free alongside steamer Philadelphia, Pa.
Packing: Tubes in their individual little cartons, about six cartons to be packed in a seaworthy carton, iron strapped.
Shipment: On the S./S. ‘Mormacdawn’ sailing on August 10th, 1946 from Philadelphia to Buenos Aires (via New York). August 9th would probably be the last loading day.
Marks: Z. B. Buenos Aires Made in U.S.A’. No. 1/up
Cоnfirma-Upon your confirmation totion: morrow we shall give immediate instructions to have a domestic irrevocable letter of credit opened in your favor with payment against corresponding dock receipt and invoice (four copies).
New York 6, N.Y., July 24, 1946.
William Baum Company
/s/ W. A. Baum
W. A. Baum, partner.”
It is agreed that 2,000 tubes were delivered by defendants and paid for by plaintiff in cоnformity with the contract, but the alleged breach arose out of the question of quality of the tubes delivered.
Thе complaint filed herein in this particular respect alleges: “That in fact the said 330 cartons delivered by defendants on or about August 23, 1946, contained but 541 new inner tubes and a balance of 1457 tubes which were not new but which were patched or reconditioned.”
The gist of the problem is: Under the order constituting the contract, was the
Plaintiff produced two witnesses besides himsеlf, George Yosco and Daniel H. Bolk, who testified as experts concerning custom and usage in the trade. A digеst of their testimony leads the court to the conclusion that when those specifically in the tire and tube business оrder tubes they normally specify firsts or seconds. This was not done in this instance. What was ordered were “new” tubes.
The depositions of Agustín Marisquirena, who examined the tubes as a cargo surveyor, taken before a U. S. Consul and introduсed by plaintiff (P. 4 in evidence) have this to say concerning the condition of the tubes as they arrived at the point of destination, as shipped by plaintiff:
“Fourteenth Interrogatory: All tubes were new and unused but the major part of thеm had the factory brand erased and some had been patched up to cover factory defects.”
“Fifteenth Interrogatory: Out of the contents of 94 boxes, 539 tubes were in accordance with the required conditiоn and 23 tubes showed signs of having been reconditioned or repaired by the manufacturers. Out of the remaining 239 boxes some 50 percent to 60 percent of the tubes were patched and all these tubes had the factory brаnd erased.”
An examination of the interrogatories of Stanley Robbins, manager of Plant No. 2, Robbins Tire and Rubber Company, Inc., the plant where the tubes were purchased by defendants for the purpose of filling this contract, disсloses the following:
“Interrogatory No. 8: Some of the tubes had been patched, reinforced, and otherwisе repaired because these tubes failed to pass company inspection and were repаired, reinforced and patched so as to conform to our manufacturing standards. These repairs were due to routine manufacturing imperfections and the repairs, patches or reinforcements were accomplished to remedy such imperfections.
“Interrogatory No. 10: Yes. They were known as new tubes. The actual strength of the tubes is greater than other tubes, and the only difference is in the appearance.
“Interrogatory No. 1: Yes. The difference in July, 1946 was 18 cents per tube for size 616. First line tubes sold for $1.94 per tube (size 616) and seconds sold for $1.76 (size 616) in July, 1946.”
The answers to the interrogatories propounded to Glenn Taylor, Vice-President in charge of sales and distribution of the manufactured products of Robbins Tire and Rubber Company are the same as Stanley Robbins’ аnswers to the same questions. Both these interrogatories were offered in evidence 'by defendants and beсame exhibit D-l.
Therefore, it appears, and I so find, that the plaintiff ordered new tubes and got new tubes but not first line or quality.
What is the meaning of “new”? Webster defines it as follows: “Having existed, or having been made, but a short time; having originated or occurred lately; not early or long in being; recent; fresh; modern; opposed to old.”
Corpus Juris, 46 C.J., page 13, defines it as follows: “A relative term that has been defined as meaning not yet used or worn; now first used for some purpose; recently made; still unimpaired by use. In its ordinary acceptation the opposite of the tеrm ‘old!.”
And Judge Galston in United States v. Pyramid Auto Sales, D. C.,
Therefore, it appears that while the plaintiff may have intended that he purchase first grade or first line tubes, he got exactly what he contracted for, namely, new tubеs and consequently no breach of contract occurred.
If breach had occurred, it is extremely dоubtful under the applicable law of New Jersey that plaintiff could recover damages inasmuch as the tubes sold for more than
Prepare findings and an order in accordance herewith.