Billson v. Hall & Grant Construction Co.

43 Misc. 620, 88 N.Y.S. 245

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1904
• Status: Published

Opinion

Levemtritt, J.

The action was for the unpaid balance of the purchase price of certain electric machinery. The defense was breach of an express warranty, the plaintiff having warranted in writing that the engine was a ninety kilowatt engine. The defendant claimed that it had a power of only fifty kilowatts. At the conclusion of the evidence, both sides moved for a direction and thereupon the court directed a verdict in favor of the plaintiff. Ho reasons were stated and it is quite likely, from an erroneous ruling as to important evidence, that the court may have been improperly-influenced and decided the issues on an erroneous theory.

The president of the defendant was asked on cross-examination : “ You never .offered to return this machine to the plaintiff, did you?” Objection was made on the ground of immateriality and irrelevancy. The objection was overruled, an exception taken and the witness answered: “Ho, sir.” This testimony should have been excluded. The warranty as to quality, in this case, attended an executed present sale of the machine, and an offer to return was neither necessary nor allowable on account of the breach of warranty. The right to damages survived acceptance. The acceptance is qualified by the warranty and is to be construed in reference to it. Rust v. Eckler, 41 N. Y. 488; Nichols v. Townsend, 7 Hun, 375. Having admitted it, thus deeming it material, we cannot say but that the court directed the verdict on the theory that the defendant had not offered to return the machine after discovery of the breach.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Ekeedmait, P. J., and Greeitbaum, J., concur.

. Judgment reversed and new trial ordered, with costs to appellant to abide event.