201 A.D. 161 | N.Y. App. Div. | 1922
Lead Opinion
The plaintiff and the defendant entered into a written contract whereby they agreed to trade second-hand automobiles. The plaintiff agreed to deliver to the defendant a six-passenger Stutz of the agreed value of $2,500. The defendant agreed to deliver to the plaintiff a Willys-Knight roadster and a four-cylinder Buick touring car of the agreed value of $1,800, and to pay in addition the sum of $700. The cars were delivered and the cash was paid as provided in the contract. The plaintiff found fault with the condition of the Buick car, claiming that its condition and character were not as represented. The contract contained no representations or warranties in relation to any of the cars therein described. Moreover, it expressed the following term: “ It is mutually agreed that there are no promises, verbal understandings or agreements of any kind pertaining to this order not clearly specified in it.” This stipulation precluded the plaintiff from setting up in an action upon contract oral representations or warranties collaterally entered into. (Chapin v. Dobson, 78 N. Y. 74; Eighmie, v. Taylor, 98 id. 288.) It did not preclude it from asserting in an action of deceit, brought to recover damages resulting from its entry into the contract, that it was induced to make the contract by the false oral representations of the defendant as to the condition and character of the Buick car. (Indianapolis, P. & C. R. Co. v. Tyng, 63 N. Y. 653.) Accordingly, the plaintiff brought this action of deceit.
The complaint alleged that the defendant, at the time the con
There are three reasons why the verdict obtained by the plaintiff' may not be supported on the theory thus advanced: First. There was no evidence that the defendant knew, had reason to know, or represented that he knew the particular year in which his Buick car was made. On the contrary, it is undisputed that the defendant stated to a representative of the plaintiff: “ Mr. Sweet, I know nothing about it. I have never seen it, only what I have been told.” The defendant was, therefore, not open to the charge that in a legal sense he deceived the plaintiff as to the age of the car. (Wakeman v. Dalley, 51 N. Y. 27; Daly v. Wise, 132 id. 306; Hadcock v. Osmer, 153 id. 604; Reno v. Bull, 226 id. 546.) Second. There was no proof that the plaintiff relied upon the representation of the defendant as to the age of the car and was induced thereby to enter into the contract. (Kountze v. Kennedy, 147 N. Y. 124.) Third. The trial judge erroneously submitted to the jury as an issue to be determined by them the question whether the defendant fraudulently misrepresented that he would place the Buick car in first-
The judgment should be reversed, with costs to the appellant, and a new trial granted.
All concur; Kiley, J., with a memorandum.
Concurrence Opinion
I am of the opinion that this action can be maintained upon the pleadings presenting the issues as they are presented herein. The allegation of the complaint as to the Buick car is to the effect that the defendant was to put it in first-class condition and that it was the latest four-cylinder model Buick, and that plaintiff relied upon those representations in making the contract that was made with the defendant. The defendant answered with a general denial of those allegations and of all the material allegations of the complaint, and counterclaimed with an allegation of misrepresentation on the part of the plaintiff as to the condition of the Stutz car, with consequent damage to himself. The case was tried and submitted to the jury upon that theory, and I see no error that militates against the result, except the refusal to charge as requested by defendant’s counsel, viz.: “ I request your Honor to charge the jury that in case they find the Stutz car in question was fairly worth only $2,000, at the time the trade was made, then if they find that the Willys-Knight was only worth $1,000, and the Buick only $350 even then the plaintiff cannot recover in this case because that would make a total of $1,000 plus $350, plus $700 which would be $2,050.” This request was formulated from evidence given by both sides upon the trial, and such a solution would have found support in that evidence.
The refusal was error which calls for a reversal of the judgment.
Judgment and order reversed and new trial granted, with costs to the appellant to abide the event.