Levis v. Pope Motor Car Co.

• Decision Date: 16 June 1911
• Citation: 202 N.Y. 402,95 N.E. 815
• Parties: LEVIS v. POPE MOTOR CAR CO.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 402

95 N.E. 815

LEVIS

v.POPE MOTOR CAR CO.

Court of Appeals of New York.

June 16, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Thomas R. Levis against the Pope Motor Car Company. Judgment dismissing the complaint (129 App. Div. 937,115 N. Y. Supp. 1128), and plaintiff appeals. Reversed, and new trial granted.

Elbridge L. Adams, for appellant.

Lewis H. Freedman, for respondent.

COLLIN, J.

The action is to recover from the respondent and a codefendant, Robert Thompson Company, the sum of the damages sustained by plaintiff through the alleged breach of a contract of sale to him of an automobile or motor car, and of the express warranties collateral thereto. At the trial the court at the close of plaintiff's case dismissed the complaint as to the respondent upon two grounds: (1) There was no proof that the respondent was the principal in the transaction through which the car was sold by the Thompson Company to the plaintiff; (2) the contract which the plaintiff made with the Thompson Company was, if the car did not prove to be equal to what they expected of it, the Thompson Company should, in the place of being liable for damages, replace that car with a car of the next year's make of larger power, and plaintiff's only right of action is for the breach thereof; and granted the request of the counsel for plaintiff that a juror be withdrawn and the trial discontinued as to the Thompson Company. The exceptions of the plaintiff, ordered to be heard, in the first instance, by the Appellate Division, have been overruled.

The trial court erred, under the evidence, in its ruling. The respondent as well as the appellant correctly assumed in presenting the case to us that the evidence established warranties on the part of the Thompson Company collateral to the contract made between it and the plaintiff, the reliance of plaintiff upon them and their nonfulfillment.The prominent issue between them is: Is the respondent obligated by the warranties? The jury, determining all conflicting facts in favor of the appellant, and evoking from the evidence the inferences most favorable to him, might have found the following: During the year 1905 the respondent was a manufacturer of automobiles at Toledo, Ohio, and made the automobile sold to the appellant. The Robert Thompson Company, of which Robert Thompson was the president, sold, at Rochester, N. Y., automobiles made by the respondent, and in August, 1905, Robert Thompson requested appellant to purchase an automobile of respondent's manufacture. Upon this or a subsequent occasion in the negotiations which took place between them prior to the sale, Thompson was accompanied by a traveling representative of the respondent. Throughout the negotiations the Thompson Company did not have and appellant did not see the automobile in question, but Thompson had and showed to appellant a picture of and printed specifications and literature concerning it. Of that literature was a printed circular of two parts, the first of which was descriptive of the car as a whole, and stated ‘such information as is not given herewith will be gladly furnished on request,’ and the second of which was a ‘brief of specifications.’ Several of the statements therein were in import and effect similar and equivalent to the warranties made by the Thompson Company. At the end of each part of it was in print the subscription: ‘Pope Motor Car Co., Toledo, Ohio. Members A. L. A. M.’ During the negotiations Thompson told the appellant that if the automobile did not fulfill the alleged warranties he might return it in the spring of 1906, pay an additional $400 and have a larger one of the 1906 model delivered to him. The appellant relied on the statements of Thompson...