Jan Ree Frocks v. Pred
| Decision Date | 28 February 1942 |
| Docket Number | 8461 |
| Citation | 68 S.D. 356,2 N.W.2d 696 |
| Parties | JAN REE FROCKS, INC., Appellant, v. A. PRED, aka A. Predmetsky, dba Hollywood Shop, et al., Respondents |
| Court | South Dakota Supreme Court |
Appeal from Municipal Court, City of Watertown, SD
#8461—Reversed.
B. A. Walton, Aberdeen, SD
Hanten, Hanten & Henrikson, Watertown, SD
Attorneys for Appellant.
Perry F. Loucks, Alan L. Austin, Watertown, SD
Attorneys for Respondents.
Opinion filed February 28, 1942
The complaint alleges a cause of action for the value and the balance of the agreed price of merchandise sold and delivered to defendants, The purchase and delivery are admitted. The answer alleges that the merchandise consisting of twenty-five dresses was purchased at the agreed price of $315.17 and of this amount defendants have paid $65.17; that the dresses did not conform to samples exhibited by a salesman employed by plaintiff and were not of a “style and class of workmanship which made said merchandise saleable"; that the defendants were never able to dispose of more than five of the dresses; that defendants returned to plaintiff eleven of the dresses and tendered by their answer a return of the number in their possession; and that the merchandise because of the alleged defects was of no value to defendants.
Plaintiff was a manufacturer and defendants were retailers of women’s wearing apparel. The court found that the merchandise was purchased by defendants from a salesman, representing the plaintiff, who exhibited samples of the dresses and materials and described the merchandise; that defendants received five of the dresses from the salesman on October 6, 1938, and delivery of the remaining number on October 20 and November 2, 1938; that there was a breach of implied warranty of merchantability; that the dresses, with the exception of the number sold by defendants, would not fit and could not be made to fit by alteration any of the customers of the defendants; that defendants were not able to determine immediately upon delivery of the merchandise whether or not the same was merchantable; and that it required several months in which to determine the fact of unmerchantability. Judgment was rendered for defendants and plaintiff has appealed.
Defendants contend that under SDC 54.0115(2), which provides that “where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchan.table quality”, there was an implied warranty that the dresses were free from any defects that would render them unmerchantable. Under the provisions of the Uniform Sales Act a purchaser is deemed to have accepted goods, when, after the lapse of a reasonable time, he retains them without intimating that he has rejected them. SDC 54.0148. Acceptance of goods, however, does not discharge the seller from liability in damages or other remedy for breach of the contract, unless the buyer fails to give notice to the seller of the breach within a reasonable time after he knows or ought to know of it. SDC 54.0149. The purchaser has neither a right of...
To continue reading
Request your trial
-
Dold v. Sherow
...122 Ill.App.2d 403, 259 N.E.2d 304 (1970); Green Seed Co. of Ark. v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969); Jan Ree Frocks v. Pred, 68 S.D. 356, 2 N.W.2d 696 (1942).) The notice requirement is generally considered to be in the nature of a condition precedent to plaintiff's recovery.......
-
Fairbanks, Morse & Co. v. CONSOLIDATED F. CO.
...v. S. A. Companhia, etc., Sup., 180 N.Y.S. 201; McMurray v. Vaughn's Seed Store, 117 Ohio St. 236, 157 N.W. 567; Jan Ree Frocks, Inc., v. Pred, 68 S.D. 356, 2 N.W.2d 696. 13 "The purpose of this section, indeed, seems apparent, viz. to prevent the buyer from interposing belated claims for d......
-
United States v. American Radiator & Stand. San. Corp.
...within a reasonable time. Such notice is therefore a condition precedent, and this he is obliged to plead." Jan Ree Frocks, Inc., v. Pred, 68 S.D. 356, 2 N.W.2d 696, 697, wherein the court stated: "* * * The giving of such notice must be pleaded and proved by the purchaser seeking to recove......
-
Adler v. United States
...S.D., 91 N.W.2d 897, the Supreme Court of South Dakota in adressing itself to SDC 54.0149, reiterated the points made in Jan Ree Frocks, Inc. v. Pred, 68 S.D. 356, 2 N. W.2d 696, 697, stating, 91 N.W.2d at page 901: "The purchaser has neither a right of action for the breach of a promise or......