EDWARD T. BEDFORD, Respondent,
THE HOL-TAN COMPANY, Appellant.
APPEAL by the defendant, The Hol-Tan Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York, on the 22d day of
October, 1910, upon the report of a referee appointed to hear and determine the issues.
Paul Bonynge, for the appellant.
Charles Thaddeus Terry [Edward Ward McMahon with him on the brief], for the respondent.
This action according to the amended complaint is for the recovery of damages for breaches of warranties on the sale of an automobile chassis by the defendant to the plaintiff. On the 24th day of March, 1906, the defendant made a formal proposal in writing for the sale of a fifty-horse-power Fiat automobile chassis for $10,500, to be paid by the acceptance of a chassis of the same make, 1905 model, at $4,000 and the balance in cash on delivery, and he accepted the proposal in writing. The chassis was delivered to the plaintiff in June, 1906, and he accepted and used it. From that time until the end of October in the same year the plaintiff experienced considerable annoyance in using the chassis. It was frequently out of order and required repairs and was returned to the defendant from time to time and after remedying the defects then appearing it was returned to the plaintiff. The evidence shows that the defendant conceded that one defect existed in the chassis at the time it was delivered. That was a defect in the valve lifts, which were so made as to admit dust into the oil grooves, causing them to wear unduly, which gave rise to a loss of power, but the evidence shows that this defect was remedied free of charge by the defendant. With respect to the other defects there is a conflict of evidence. On the part of the plaintiff it is claimed that it has been satisfactorily shown that the chassis was not properly constructed, and on the part of the defendant that the defects of which complaint was made, other than that relating to the valve lifts, were caused by improper use of the machine or failure to care for it properly.
In the month of November, 1906, the plaintiff took a long journey with the automobile and experienced no difficulty and reported in writing to the defendant at that time and thereafter that it was giving perfect satisfaction. No complaint was made that the automobile
was not as represented at the time of the sale, or that there was any breach of warranty until after the plaintiff wrote the defendant a letter on March 21, 1907, indicating that he was thinking of obtaining a higher power automobile, and asking for a proposition from the defendant to sell him a new chassis and take this one in exchange, and defendant had manifested unwillingness so to do. Later on plaintiff complained about the automobile from time to time to the defendant and finally demanded that it take the chassis back and on its refusal to do so he advertised the automobile in the New York Herald for sale, but he received only one offer, which was $3,000 for the chassis together with two bodies which he owned and used with the chassis but did not purchase with it. He declined this offer and in the month of August, 1907, he sold the chassis at private sale for $3,000 and agreed to buy a higher power machine from the purchasers 'at their price in consideration of their making that purchase.'
On the trial an expert called by the plaintiff testified, basing his testimony on an examination of the machine in the summer of 1907, that the automobile was improperly constructed in many respects and was not worth at the time it was new more than from $2,000 to $2,500.
The alleged breaches of warranty concerning which testimony was offered by the plaintiff were statements made in conversations constituting the negotiations preliminary to making the contract, to the effect that the defendant guaranteed that the automobile would prove satisfactory to the plaintiff, and would be suitable for the use of his family, and that he would have no more trouble with it than he had with the chassis of the same make but of less horse power which defendant had accepted in part payment. The vice-president of the defendant at the time the sale was made to plaintiff, and who, it is claimed, made the oral warranties to the plaintiff, denies that he made representations as claimed by plaintiff, but he concedes that he guaranteed that the machine was properly constructed and that it contained no defects.
On the part of the defendant considerable evidence was given tending to show that the automobile was properly constructed, and that other automobiles constructed on the same plans and patterns which were ...