Bierman v. City Mills Co.

• Decision Date: 19 January 1897
• Citation: 151 N.Y. 482,45 N.E. 856
• Parties: BIERMAN et al. v. CITY MILLS CO.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 482

45 N.E. 856

BIERMAN et al.

v.CITY MILLS CO.

Court of Appeals of New York.

Jan. 19, 1897.

Appeal from common pleas of New York city and county, general term.

Action by Isaac Bierman and others against the City Mills Company for breach of warranty on a sale of goods. A judgment for defendant on a verdict directed by the trial term was affirmed by the general term (30 N. Y. Supp. 929), and plaintiffs appeal. Reversed.

Sol. Kohn, for appellants.

Edward Hinman, for respondent.

GRAY, J.

The plaintiffs brought this action to recover damages of the defendant for a breach of warranty in the sale of felt cloths; and, as there was no written contract at the time, it is essential to know the facts and circumstances under which the sales were made. The plaintiffs were engaged in business in the city of New York, as manufacturers of clothing. The defendant, a Massachusetts corporation, was engaged in the business of the manufacture and sale of felt goods. The plaintiffs alleged that the defendant, through its lawfully authorized agent, had represented to them that it manufactured a certain kind of cloths, fit for their use in the manufacture of coats, and had requested them to purchase some. They further alleged that, relying on the representation, they had purchased such cloths, and had manufactured them into clothing;that they subsequently discovered that the cloths were ‘damaged, of an inferior quality, rotten, and unfit for any purpose whatever’; and that the defendant had concealed the defects from the plaintiffs. They alleged that the defect was a latent one, and not discoverable by inspection, and was indicated by wear; that many of the goods sold by the plaintiffs had been returned to them; and that they had on hand a number of said coats, which they had been unable to dispose of. The answer denied that the defendant had made any representations to the plaintiffs, as alleged, and denied the other allegations of the complaint respecting the cloths sold, and set up as a defense that the goods purchased by the plaintiffs were first-class articles of their kind, and suitable for the manufacture of low-priced coats. Upon the trial of the issues, the plaintiffs gave evidence that they had not purchased felt goods to be manufactured into clothing, until they made the purchases from the defendant, which occurred in the spring of 1890, at the plaintiffs' place of business in New York. The purchase was made through a Mr. Nichols, who showed them a sample of the cloth, and stated that it would make a splendid ulster, that it wore like buckskin, and that he had an ulster made from the goods which he had worn for two years. Upon these statements, and at the price of a dollar a yard, the plaintiffs told him that, ‘if he could warrant the goods,’ they could use a very large quantity. Mr. Nichols said ‘he would warrant it to wear,’ and thereupon plaintiffs told him to send in a few pieces of the goods to be made up into a lot of ulster samples; and orders were then and subsequently given for cloths to be made up into ulsters for the fall trade, which were filled by the defendant. Plaintiffs gave evidence that they entirely relied upon Mr. Nichols' statements as to the quality of the goods, and had no knowledge regarding the wear of the cloth when manufactured into ulsters. Plaintiffs proceeded with the manufacture of these goods, through the summer months, to the extent of 1,326 ulsters, of which they sold 1,027 throughout the country. Subsequently, ulsters were returned to the plaintiffs in a damaged condition, with holes in them, or ‘broken,’ or with ‘tender places' in them. The number of coats returned in a damaged condition was 200. The custom of the plaintiffs, when goods were received, was to examine them before sending them out to be manufactured into garments, and then, when returned, the garments were again thoroughly examined. Witnesses familiar with felts testified as to how they were made, and that, unless made with stocks or fibers sufficiently long to hold the short stocks or fibers together, upon exposure, the stocks will ‘creep,’ or draw away from each other. They testified, upon examining the ulsters in question, that the greater proportion of the stocks from which they were made had been short stocks; that, after exposure, where the felt is not properly worked, the short stocks draw away from the long stocks; and that the breaks in these ulsters were attributable to that cause. There was also testimony by a dealer in felt goods, who was familiar with the process of manufacturing, and who had sold felt goods for overcoatings, that, if made of proper materials, they would wear well, and that the way of testing felt for durability and quality was only by actual wear, unless ‘you try every square inch of the goods.’ At the conclusion of the plaintiffs' evidence, they had shown that the felt cloths which they had purchased of the defendant, when made up into these overcoats and sold to customers, had proved, at least to a certain extent, to be so defective in their manufacture, and were such ‘tender’ goods, that holes, or breaks, appeared in the garments; that 200 of them had been returned, and 299 were left unsold and were of no value. If their evidence is to be believed, these defects resulted from improper processes of manufacture, and were only discoverable after exposure upon being worn. On behalf of the defendant there was evidence to the effect that Nichols had never been in its employ, and, upon his examination, he denied the representations attributed to him by the plaintiffs. He admitted that he had said that this felt cloth was a good thing for an overcoat, and that he knew it was to be used for that purpose by the plaintiffs. He testified that he was not a manufacturer of felts, and that the goods he sold to the plaintiffs were to be delivered by the defendant. There was also evidence for the defendant, given by its superintendent, that the felt delivered was a reasonably merchantable article for the price, and that there was an ordinary and easy test for detecting the tenderness of the material by pulling it in a certain way. A manufacturer of felts, examined for the defendant, testified that he attributed the ‘creeping’ in the goods to a great extent to the rubber linings, which the plaintiffs had added to the coats in manufacturing them. When all the evidence was in, on motion of the defendant, a verdict was directed in its favor; and the request of the plaintiffs for leave to go to the jury upon the questions of fact, upon the question of whether there was an express or implied warranty, and upon the question of the damages, was denied; and an exception was taken to that denial. The general term affirmed the judgment entered at the trial term, and we are required, upon this appeal, as the main question, to consider the correctness of the disposition made of the case by the trial court.

Although the plaintiffs...