62 A.D.2d 982 | N.Y. App. Div. | 1978
In an action to recover for goods sold and delivered, in which defendants counterclaimed, inter alia, to recover damages for breach of implied warranty of fitness for a particular purpose, defendants appeal from a judgment of the Supreme Court, Nassau County, entered April 7, 1977, which is in favor of the plaintiff, after a nonjury trial. Judgment affirmed, with costs. Defendant-appellant Twin County Transit Mix Corp. agreed to purchase 10 concrete mixing trucks from plaintiff-respondent, a franchised dealer which is in the business of selling and servicing heavy duty trucks. The concrete barrels (the cement mixers) were purchased by Twin County from another company, not a party, which mounted the barrels on the trucks. Within one month after delivery of the first eight trucks, Twin County complained to plaintiff about breakdowns due to broken transfer case shafts and other problems. Plaintiff acknowledged the difficulties and agreed to take care of them to Twin County’s satisfaction. When the ninth truck was delivered, a week following the letter, Twin County deducted $4,500 from the agreed purchase price of approximately $39,000. Twin County refused to pay anything for the tenth truck delivered, although it kept the truck and used it along with the others. This action was brought to recover the price of the tenth truck, the $4,500 withheld on the price of the ninth truck, and approximately $1,500 for tires sold by plaintiff to Twin County, which leases the trucks to