Capitol Refrigerator Co. v. Schmidt, 412.

• Decision Date: 07 July 1938
• Docket Number: No. 412.,412.
• Citation: 120 N.J.L. 433,200 A. 552
• Parties: CAPITOL REFRIGERATOR CO. v. SCHMIDT.
• Court: New Jersey Supreme Court

200 A. 552

120 N.J.L. 433

CAPITOL REFRIGERATOR CO.

v. SCHMIDT.

No. 412.

Supreme Court of New Jersey.

July 7, 1938.

Syllabus by the Court.

Where property in possession of the purchaser under conditional sale contract is not in accordance with the warranty, express or implied, in that contract, and due notice of breach of such warranty has been given to the seller, the buyer is not in default for refusing to make further payment until the warranty is complied with, and therefore the seller is not entitled to maintain replevin for the goods while such breach of warranty persists.

Appeal from Fifth Judicial District Court, Union County.

Suit in replevin by the Capitol Refrigerator Company against Edward Schmidt From a judgment in favor of the defendant, the plaintiff appeals.

Affirmed.

Argued May term, 1938, before TRENCHARD, PARKER, and PERSKIE, JJ.

Charles J. Falcey, of Trenton, for appellant. George McElroy, of Trenton (Julius R. Pollatschek, of Elizabeth, of counsel), for respondent.

PER CURIAM.

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The suit is in replevin, and arises out of a contract of conditional sale of certain personal property, especially a butcher's refrigerator which defendant below purchased of appellant, the price being $1,073 on which was credited $8 cash and $505 for old refrigerator traded in, the balance of $560 payable in cash. The respondent purchaser promptly complained that the new refrigerator did not function as expected and agreed, and tendered return subject to restoration of the old refrigerator, refusing any cash payment over the $8 originally paid until the alleged defects should be rectified. Negotiations proving ineffective, the appellant declared the contract in default, demanded the surrender of the property sold under the conditional sales agreement, and on refusal brought this suit. The defence was in substance that as the refrigerator was defective, the purchaser was relieved from making further payment until the defects were remedied, and consequently was not in default. The case was fully (and somewhat voluminously) tried, and the trial court found for the defendant This is the principal error alleged.

Our examination of the case and briefs leads us to the conclusion that the decision of the district court on the facts was fully supported by the evidence, and that the law was correctly applied. The second section of the Uniform Conditional Sales Act (P.L.1919, p. 461, at page 462; R.S.1937, 46:32-8) provides that "the buyer shall have the...