Philadelphia Motor Tire Co. v. Horowitch

| N.Y. App. Div. | Mar 3, 1920

Woodward, J.:

The plaintiff brought this action to recover $775, the amount of a check given in payment for certain automobile tires, together with protest fees and interest, payment having been stopped on the check. The defendants, by way of defense and counterclaim, alleged that the plaintiff sold and delivered to the defendants, on the 8th day of August, 1917, at the city of Philadelphia, 186 automobile tires by description at the agreed price of $1,550; that in and by the terms of said sale there was an implied warranty from the plaintiff to the defendants that the goods should be of merchantable quality, and that the defendants, relying on said warranty and believing the same to be true, were induced thereby to purchase the same from the plaintiff, and that the tires so purchased were not of merchantable quality, resulting in damage to the defendants in an amount in excess of the check on which the action was brought. The defendants alleged the Sales Act of both Pennsylvania and New York. (See Penn. Laws of 1915, pp. 546, 547, No. 241, § 15; 6 Purdon’s Digest [13th ed.], 7474, 7475, § 17; Pers. Prop. Law, § 96, as added by Laws of 1911, chap. 571.) The defendants also alleged facts which, if established, would show an express warranty of the character of the goods.

The case was tried and submitted to the jury in a careful charge, to which no exception is now urged, and the jury has found a verdict in favor of the defendants, defeating recovery and awarding damages in the sum of $350. A careful examination of the evidence in this case discloses nothing to warrant an interference with the judgment. There was a decided conflict in the testimony, and the verdict of the jury finds support in the evidence. The plaintiff concededly sold the defendants the tires in question, and they were originally represented as New Castle tires, a grade of tires known to the trade. The defendants discovered that some of the 186 tires were Lehigh tires, an inferior grade. Negotiations followed and the defendants agreed to purchase New Castle and Lehigh tires at a reduced figure. Later it developed that the tires were neither New Castle nor Lehigh tires, but old tires recovered with a film of rubber, which gave practically no service, and the goods were shown to be worthless as serviceable tires, and worth only about what they would bring as junk. So far as the evidence discloses, the plaintiff, which was merely a jobber in the transaction, was not aware of the real facts, but we are of the opinion that the evidence justified the jury in holding that the goods were warranted at least of merchantable quality, and that they fell short of the warranty. This, under the charge of the court, required the finding of a verdict in favor of the defendants, and the judgment should not be disturbed.

The judgment and order appealed from should be affirmed.

Judgment and order unanimously affirmed, with costs.