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FRIEDMAN v. TYPHOON AIR CONDITIONING CO.

May 16, 1962

Adolph FRIEDMAN, doing business as Friedman Electric Company, Plaintiff,
v.
TYPHOON AIR CONDITIONING CO., Inc., Defendant



The opinion of the court was delivered by: ZAVATT

The facts in this matter have, in large part, been stipulated at a pretrial conference held before this court on February 5, 1962. The stipulated facts are as follows:

1. The defendant corporation is a citizen of New York State, having its offices and principal place of business in Brooklyn, New York. It is engaged in the business of manufacturing and selling air conditioning units. The plaintiff, a citizen of Tennessee, for a number of years, has been an authorized dealer of the defendant's air conditioners and has held an exclusive agency covering the city of Nashville, Tennessee.

2. Sometime prior to August 5, 1954 the plaintiff ordered form the defendant a number of Typhoon air conditioners, model No. H-845C, seven and one-half ton capacity, together with the couplings, connections, fittings, and all other items necessary to install such units.

 3. The defendant knew that these units were bought by the plaintiff for the purpose of reselling them to its customers and that the plaintiff would install them for its customers.

 4. The defendant also knew that these units were bought by the plaintiff with the understanding that they were reasonably fit for the purpose for which they were intended; to wit, to air -condition enclosed areas in places such as department stores.

 5. The defendant impliedly warranted to the plaintiff that the unit in question and its accessories, when properly installed, was reasonably fit for the purposes for which it was intended.

 6. On or about August 5, 1954, the plaintiff sold one of the aforementioned units to the H. Cohen Furniture Co., and installed it on the fifth floor of the buyer's store located at 207 Third Avenue North, Nashville, Tennessee.

 7. After the installation, and on the same day, a rubber hose coupling which was part of the unit and its accessories became detached from the unit, as a result of which a considerable amount of water escaped from the unit and leaked onto the floor where the unit had been installed. The water seeped down from the fifthe floor, onto all five floors of the H. Cohen Furniture Co. and caused substantial damage to the real and personal property of the said H. Cohen Furniture Co. The leakage continued through the evening of August 5, 1954 until the morning of August 6, 1954 when it was discovered.

 8. To recover for the damage so suffered, the H. Cohen Furniture Co., in July, 1957, brought a lawsuit against both the plaintiff and defendant herein in the Circuit Court of Davidson County, Tennessee. However, the cause of action against the defendant herein was dismissed because of lack of jurisdiction.

 9. On September 18, 1958 the plaintiff requested the defendant to vouch in and defend the action being prosecuted against him by the H. Cohen Furniture Co., in the Circuit Court of Davidson County, Tennessee. The defendant refused.

 10. On July 17, 1959 the H. Cohen Furniture Co. recovered a judgment of $ 19,474.90 against the plaintiff, of which amount $ 11,974.90 represented the sum awarded as compensation for damage to property and $ 7,500 represented compensation for loss of profits during the period that the business of the H. Cohen Furniture Co. was interrupted because of the water damage here involved.

 11. As a result of the lawsuit brought against it in the Circuit Court of Davidson County, Tennessee, by the H. Cohen Furniture Co., the plaintiff became obligated for legal fees in the sum of $ 500. Such sum is conceded to be fair and reasonable.

 12. The action instituted by the plaintiff in this court seeks only indemnity ...


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