De Rose v. Hunter Lindsay Corp.
| Decision Date | 23 July 1956 |
| Docket Number | No. L--7160,L--7160 |
| Citation | 41 N.J.Super. 178,124 A.2d 349 |
| Parties | John DE ROSE, Plaintiff, v. HUNTER LINDSAY CORP., a corporation of New Jersey, Defendant. . Law Division |
| Court | New Jersey Superior Court |
Carl Casriel, Asbury Park, for plaintiff.
McGlynn, Weintraub & Stein, Newark (Roger H. McGlynn, Newark, appearing), for defendant.
LARRABEE, J.C.C.
Plaintiff DeRose sued defendant Hunter Lindsay Corporation, contending that he had purchased a diesel engine from the defendant, who represented that the item being sold was a new surplus G.M. marine diesel engine. Also, that there was an implied warranty under R.S. 46:30--21, N.J.S.A. The engine actually was a used surplus G.M. diesel engine. It lacked certain accessories used in connection with the operation of marine diesels and plaintiff complained that it operated poorly. Plaintiff's case was submitted to the jury which returned a verdict in the sum of $874.73, which corresponds with the amounts shown to be the cost of repairs and loss of profits. Defendant has moved for a new trial
Defendant contends that the measure of damages is exclusively 'the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.' R.S. 46:30--75(7), N.J.S.A.
However, section 75 of the Sales Act contains paragraph (6) as well as (7). The two should be read together. Paragraph (6) specifies that 'the measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.' This is a general rule and it states the measure of damages that are recoverable in all cases of breach of warranty.
Paragraph (6) is followed by (7), as follows:
'(7) In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.'
This is a coordinate rule which is merely complementary of the more general rule expressed in paragraph (6) and is usually but not invariably applicable. Richmond v. Cretens 175 Wis. 297, 185 N.W. 247 (Sup.Ct.1921); Marcum v. Potter, 148 Tenn. 251, 255 S.W. 47 (Sup.Ct.1923); Suryan v. Lake Washington, 163 Wash. 164, 300 P. 941 (Sup.Ct.1931) (); Moss v. Yount, 296 Ky. 415, 177 S.W.2d 372, 151 A.L.R. 441 (Ct.App.1944) (repairs to tractor); Minneapolis Threshing Mach. Co. v. Huncovsky, 52 N.D. 112, 202 N.W. 280 (Sup.Ct.1924) (repairs to tractor); People's State Bank of Butterfield v. Randby, 158 Minn. 309, 197 N.W. 265 (Sup.Ct.1924); Oxford Boatyard Co. v. Warman, 192 F.2d 638 (C.C.A.4th 1951) (repairs to boat).
A persual of 3 Williston on Sales shows that profits may be included. In fact, paragraphs 614, page 371, and 614A, and the 1956 Cumulative Supplement, page 87, shows that the standard urged by the defendant is not exclusive.
The venerated authority of Wolcott v. Mount, 36 N.J.L. 262 (Sup.Ct.1873), appearing in the case books of some of our better law schools, was a very simple case of breach of warranty of quality in which loss of profits of the beet corp was allowed. Owens v. Anderson, 101 F.Supp. 32 (D.C.Alaska) (); Suryan v. Lake Washington, supra (profits from fishing).
The jury probably determined that since DeRose repaired the engines and retained them, that his loss was only the cost of repairs because the repairs were effective to make the engines as good as warranted.
If this line of reasoning is adopted, it would be illogical to apply as the measure of damages the difference in value rule because it would permit double recovery, one for the defective condition of the engine and the second for the restoration of it to the condition warranted.
Defendant contends that it was error to submit to the jury proof of loss of profits. The court charged that loss of profits was an element of damages if within the contemplation of the parties. Defendant says this is the rule of Hadley v. Baxendale and applies only to contract cases, not to warranty cases. However, it was used in Wolcott v. Mount.
Defendant further contends that plaintiff's proof of loss of profits lacked certainty. But business profits always fluctuate to a greater or lesser amount, and when the plaintiff can prove a reasonable average over a period of time the evidence may be received.
Defendant complains that plaintiff's witness, Toby Edwards, testified that there was no market for surplus engines at the time of the sale. He testified that the value of the plaintiff's engine at the time of delivery was $1,500. Defendant complains that Edwards testified that he never heard of new surplus engines, and that for him then to testify there was no established market in them was a Non sequitur. To this court the statements seem to be consistent.
Defendant contends also that Edwards ws offered as an expert and that he was no expert if he had never heard of new surplus engines. But Edwards satisfied the court that he had been engaged with marine engines long enough to be familiar with the situation and to be a competent witness regarding engine values.
Defendant's expert, the defendant and his associates testified how many of these they sold, but there seemed to be no volume of sales elsewhere that would justify the inference that there was an open market for the items.
If there was no open market then the opinion of a dealer who bought and sold engines of the general classification, I.e., marine engines, should be competent.
Further, it should be noted that the statute, R.S. 46:30--75(7), N.J.S.A., states 'the difference between the value of the goods * * *', it does not state Market value, although only three paragraphs removed, R.S. 46:30--73, N.J.S.A., definitely specifies Market value as the measure of damages in a non-delivery case. Inferentially, Market value is not the test of R.S. 46:30--75(7), N.J.S.A. See also Feldman v. Jacob Branfman & Son, 111 N.J.L. 37, 166 A. 126 (E. & A.1933).
There are some cases which restrict the proof to market value where there is a market. Marcus & Co. v. K.L.G. Baking Co., 122 N.J.L. 202, 3 A.2d 627 (E. & A.1939) (contract case), but a market value presupposes an open market in which the purchaser could have obtained for a market price the goods he desired to buy. If there is no open market for him to replace the goods by purchase he should be permitted to recover the loss which directly and naturally resulted from the breach.
Defendant contends that the measure of damages is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. Edwards testified that the engine at the time of delivery was worth $1,500 and the only other evidence of value of the engine, had it answered to the warranty, was the sale price of $2,500, or Lindsay's statement of $2,500 for a new surplus engine or $2,300 for a used surplus engine.
If the jury believed Edwards' statement of delivery value, $1,500, the difference between the delivery value and warranty value, which Lindsay said was $2,500, would be in excess of the verdict. But if they believed Lindsay's statement of value, $2,500, for a used diesel engine and that the item sold was represented to be a used diesel, the delivery value and the warranty value are the same and there is no difference. There were several figures given and the jury could use the testimony to determine the values in their judgment. Further, if the jury believed Edwards' statement of value they may have accepted his statement that there are no new surplus marine diesels and so no ascertainable price for them.
The court refused defendant's request to charge as follows:
'You are hereby charged that if the plaintiff, after acceptance of the said...
To continue reading
Request your trial
-
Chancellor, Inc. v. Hamilton Appliance Co., Inc.
...80 A.2d 624 (1951); Massari v. Accurate Bushing Co., 8 N.J. 299, 310-311, 85 A.2d 260 (1951); DeRose v. Hunter Lindsay Corp., 41 N.J.Super. 178, 183-186, 124 A.2d 349 (Law Div. 1956); Hayes v. Kluge, 86 N.J.L. 657, 660, 92 A. 358 (E. & A. 1914); Vapor Vacuum Heating Co. v. Kaltenbach & Step......
-
Prashker v. Beech Aircraft Corporation
...Jersey law, the loss directly and naturally resulting in the ordinary course of events from such breach. DeRose v. Hunter Lindsay Corp., App.Div.1956, 41 N.J.Super. 178, 124 A.2d 349; Somerville Container Sales v. General Metal Corp., 39 N.J.Super. 348, 120 A.2d 866, amended App.Div. 1956, ......
-
Gillentine v. McKeand, No. 7445.
...of a different amount" may be recovered. Mass. Gen.Laws Ann. ch. 106, §§ 2-714(2), 2-715(2) (a) (1958); De Rose v. Hunter Lindsay Corp., 41 N.J.Super. 178, 124 A.2d 349 (1956) (difference in value need not be an element of 16 At the close of plaintiff's case, defendant moved for a directed ......