Donovan v. Aeolian Co.

CourtNew York Court of Appeals
Writing for the CourtLEHMAN
Citation270 N.Y. 267,200 N.E. 815
Decision Date03 March 1936
PartiesDONOVAN v. AEOLIAN CO.

270 N.Y. 267
200 N.E. 815

DONOVAN
v.
AEOLIAN CO.

Court of Appeals of New York.

March 3, 1936.


Action by M. Beatrice Donovan against the Aeolian Company. From a judgment of the Appellate Division (244 App.Div. 821, 280 N.Y.S. 1008) which affirmed a judgment of Trial Term in favor of plaintiff, defendant appeals.

Judgment of the Appellate Division and that of the Trial Term reversed and a new trial granted.


[270 N.Y. 268]Appeal from Supreme Court, Appellate Division, Second Department.

George D. Beattys, of New York City, for appellant.

270 N.Y. 269]Samuel Rubin, of New York City, for respondent.
LEHMAN, Judge.

The plaintiff, in December, 1925, purchased from the defendant a piano for which she paid the sum of $3,475. In this action, brought on August 30, 1928, she has recovered the purchase price with interest. The complaint alleges that ‘at the time of the said sale, and as a part thereof, and as an inducement to the plaintiff to agree to purchase said piano and equipment,

[200 N.E. 816

the defendant warranted and represented to the plaintiff that the said piano was a new instrument of recent manufacture and had never been used.’

It is undisputed that the piano was, at the time of the sale, five years old. It had been used and partially rebuilt prior to the sale. The plaintiff gave no notice of any breach of the alleged warranty, or of any election [270 N.Y. 270]to rescind the contract, until December 2, 1927, approximately two years after the delivery to her of the piano. Upon this appeal the defendant contends that there was no warranty that the piano was new and unused, and that, even if such warranty had been given, the notice of election to rescind was not given within a reasonable time.

There is a conflict of evidence as to what was said to the plaintiff by the defendant's salesman at the time of the sale. The jury has resolved that conflict in favor of the plaintiff.

The evidence shows that the defendant manufactures and sells ‘Steinway Duo Art’ pianos. The plaintiff went to the defendant's salesrooms to purchase such a piano. After hearing the tone of several pianos, she selected one. She assumed that it was a new piano. Nothing was said by her that might have suggested to the salesman that she desired to purchase a used piano, and, according to her story, nothing was said by the salesman which might have suggested to her that she was buying a used piano at a small discount from the list price for new pianos of the same quality. The question then arises whether from the silence of the salesman a warranty can be inferred or implied that the piano offered for sale was new and unused.

Certain warranties of quality are implied under the statute in every sale or contract of sale, without evidence that the seller either promised or represented that the goods supplied would possess such quality. Unless there is agreement to the contrary, the intention to include such warranty must be presumed. No warranty that goods, supplied under a contract to sell or a sale, are new or unused, is included in such implied warranties. Personal Property Law, § 96, Consol.Laws, c. 41. A recovery in this action, in accordance with the allegations of the complaint, must be predicated upon a finding that the defendant agreed to give such warranty. ‘Any affirmation of fact or any promise by the seller relating to the [270 N.Y. 271]goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases to goods relying thereon.’ Personal Property Law, § 93. In determining whether such an affirmation of fact or promise has been made by the seller, we must apply the same tests as we would apply in determining the terms of any oral contract. If the evidence does not show such affirmation or promise in direct and express language, it must, at least, show acts or words from which an intention to make such affirmation or promise can be inferred.

Here there has not been a direct affirmation by the seller that the goods were new and unused. None the less, the evidence is sufficient to sustain a finding that the plaintiff in purchasing a piano from the manufacturer believed that she was buying a new and unused piano and was induced to make the purchase by that belief. Ordinarily, a buyer from a manufacturer or a dealer in new articles does not inquire whether the article supplied is new and unused. In some cases that may be due to the fact that previous use does not affect either the market value or usefulness of the article. In other cases it may be due to the fact that the buyer assumes, even without affirmation by the seller, that the article is new and unused. If the seller...

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40 practice notes
  • St. John's Univ. v. Bolton, No. 08–CV–5039 (NGG)(JMA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 10, 2010
    ...of fact.” Guardian Life Ins. Co. of America v. Handel, 190 A.D.2d 57, 596 N.Y.S.2d 804 (1st Dep't 1993) (citing Donovan v. Aeolian Co., 270 N.Y. 267, 271, 200 N.E. 815 (1936), and Nasaba Corp. v. Harfred Realty Corp., 287 N.Y. 290, 295, 39 N.E.2d 243 (1942) (“Concealment with intent to defr......
  • Granite Partners, L.P. v. Bear, Stearns & Co., No. 96 Civ. 7874(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 26, 1999
    ...were alleged to have actively induced plaintiff to enter into futures contracts for short sales of silver); Donovan v. Aeolian Co., 270 N.Y. 267, 272, 200 N.E. 815, 817 (1936) (placement of used piano for sale in piano manufacturer's showroom, without indicating it as such, could constitute......
  • In re Windsor Plumbing Supply Co., Inc., Bankruptcy No. 190-10224-352
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Eastern District of New York
    • July 7, 1994
    ...where a seller has adverse knowledge about a product that he fails to disclose to the buyer. See, e.g., Donovan v. Aeolian Co., 270 N.Y. 267, 271, 200 N.E. 815, 104 A.L.R. 546 There is an increasing tendency in New York courts to apply the rule of "superior knowledge" in contexts which at o......
  • In re Union Carbide Corp. Cons. Prod. Bus. Sec. Lit., No. MDL 692 (CLB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 4, 1987
    ...the defendant knew that the plaintiffs were acting under a mistaken belief with respect to a material fact, see Donovan v. Aeolian Co., 270 N.Y. 267, 271, 200 N.E. 815 (1936). See also Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F.2d 275, 283 (2d In addition, insofar as plaintiff ......
  • Request a trial to view additional results
40 cases
  • St. John's Univ. v. Bolton, No. 08–CV–5039 (NGG)(JMA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 10, 2010
    ...of fact.” Guardian Life Ins. Co. of America v. Handel, 190 A.D.2d 57, 596 N.Y.S.2d 804 (1st Dep't 1993) (citing Donovan v. Aeolian Co., 270 N.Y. 267, 271, 200 N.E. 815 (1936), and Nasaba Corp. v. Harfred Realty Corp., 287 N.Y. 290, 295, 39 N.E.2d 243 (1942) (“Concealment with intent to defr......
  • Granite Partners, L.P. v. Bear, Stearns & Co., No. 96 Civ. 7874(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 26, 1999
    ...were alleged to have actively induced plaintiff to enter into futures contracts for short sales of silver); Donovan v. Aeolian Co., 270 N.Y. 267, 272, 200 N.E. 815, 817 (1936) (placement of used piano for sale in piano manufacturer's showroom, without indicating it as such, could constitute......
  • In re Windsor Plumbing Supply Co., Inc., Bankruptcy No. 190-10224-352
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Eastern District of New York
    • July 7, 1994
    ...where a seller has adverse knowledge about a product that he fails to disclose to the buyer. See, e.g., Donovan v. Aeolian Co., 270 N.Y. 267, 271, 200 N.E. 815, 104 A.L.R. 546 There is an increasing tendency in New York courts to apply the rule of "superior knowledge" in contexts which at o......
  • Hunt v. Mobil Oil Corp., 75 Civil 1160.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 12, 1978
    ...a fraud where one party knows that the defrauded party is acting upon a mistaken belief as to a material fact. Donovan v. Aeolian Co., 270 N.Y. 267, 271, 200 N.E. 815, 816 (1936) ("Where failure to disclose a material fact is calculated to induce a false belief, the distinction between conc......
  • Request a trial to view additional results

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