Schwartz v. Gross

• Decision Date: 10 December 1952
• Parties: , 51 O.O. 190 SCHWARTZ v. GROSS et al.
• Court: Ohio Court of Appeals

Page 445

93 Ohio App. 445

114 N.E.2d 103, 51 O.O. 190

SCHWARTZ v. GROSS et al.

Court of Appeals of Ohio, Summit County.

Dec. 10, 1952.

Syllabus by the Court.

1. A positive statement of the quality of goods is an express warranty if the natural tendency of the statement is to induce a buyer to purchase the goods, and if the buyer purchases the goods in reliance thereon.

2. It is a seller's privilege to 'puff' his goods so long as his salesmanship remains within the range of 'dealer's talk' and mere expression of opinion.

3. A jury, or, in the absence thereof, a court, may reasonably find an express warranty of a secondhand grand piano to exist from evidence indicating that a purchaser, after reading a newspaper advertisement inserted by the seller in the following terms: 'Baby grand piano--good condition excellent tone,' purchased the same while relying on the affirmation of quality.

4. When the words 'good condition' are used in advertising a piano to describe its quality or condition, it may be found to be an affirmation of fact of the quality--that that the chattel is sound, reliable and right, in opposition to the characterization 'poor condition.'

5. A buyer is not precluded from recovery upon a breach of an express warranty when he relies on an affirmation of fact as to quality made by a seller, rather than his own inspection where the inspection fails to reveal to him defects--either because of their being latent and concealed, or because of the buyer's inability to perceive and appreciate them after inspection.

Holub & Holub, Akron, for appellant.

J. Edward Schenz, Akron, for appellee.

DOYLE, Judge.

Robert Schwartz instituted an action in the Municipal Court of Akron, in which he asserted that Emil C. and Rose K. Gross (husband and wife) expressly warranted that a grand piano which they sold to him 'was in good condition and had an excellent tone, and the plaintiff was induced to purchase said piano upon said representation.' The plaintiff further claimed that, at and before the sale, the piano was not in good condition, 'by reason of it having a split in the sound bridge and a dry pin block, which prevented it from keeping in tune'; that the defects were not discovered until the elapse of about six months; that the plaintiff has rescinded the sale and offered to return the instrument; and that, because of the breach of warranty, damage has accured in the amount of $375--the amount paid for the piano.

The defendants denied a warranty, and, among other things, alleged 'that the plaintiff was given an opportunity to and did fully and completely examine the * * * piano at the time he took possession, and that said piano was in good condition at that time.' They prayed for judgment in their favor.

Under the issues so joined, the trial judge, without the intervention of a jury, entered judgment for the plaintiff in the amount requested. This judgment is the final order from which the appeal has been taken. We are asked to reverse the judgment and enter final judgment for the defendants below, the appellants here.

Error is assigned in the following respects:

'1. In * * * finding that the advertisement in the Akron Beacon Journal, stating that the piano was in 'good condition' was a warranty on which the plaintiff could rely.

'2. In finding that there was a breach of warranty.

'3. In finding that there is an implied warranty in the sale of secondhand goods.

'4. In finding that plaintiff attempted to rescind the sale within a reasonable time.'

At the outset of our consideration of the case, the motion of the appellee to 'strike' the bill of exceptions from the record must be sustained. It was not filed in the trial court within the time limitation. Under such circumstances, this court is incapacitated 'to consider the contents * * * for any purpose.' Jarboe v. Workingmen's Overall Supply Co., 60 Ohio App. 540, 22 N.E.2d 416; 2 Ohio Jurisprudence (Part 1), Appellate Review, Section 374.

There has been, however, entered of record, findings of fact and conclusions of law made by the trial court pursuant to the provisions of Section 11421-2, General Code. The facts so found to exist are therefore brought upon the record, and this court is under duty to consider them notwithstanding there is no bill of exceptions. 2 Ohio Jurisprudence (Part 1), Appellate Review, Section 294, and cases therein cited.

The findings and conclusions appear as follows:

'Conclusions of Fact

'This cause now coming on for hearing and a jury being by the parties in open court waived, was submitted on the pleadings and evidence.

'The court on the request of the defendants that its conclusions of fact be stated separately from its conclusions of law, finds as its conclusions of fact on May 7, 1950, the defendants, who were the owners of a Schumann grand piano, caused to be published in the Akron Beacon Journal an advertisement which read as follows:

'Baby Grand Piano, good condition, excellent tone. Call Un. 7044 after 6 p. m.'

'That the plaintiff, after reading the advertisement, looked at the piano at the defendant's home; that on July 5, 1950, the plaintiff agreed to purchase the instrument for $375 and a payment of $25 was made; that on July 10, 1950, the balance of purchase price was paid and the plaintiff caused the piano to be delivered at his home at 551 Palisades Drive, Akron, Ohio, which was a newly-built home, but was not yet carpeted; that the piano was out of tune; that he did not have the piano tuned because the carpet had not yet been laid in the new home. The carpeting was completed on or about November 1, 1950, and as soon as the carpet was laid, the plaintiff undertook to have the piano tuned; that the tuner was unable to come to the plaintiff's home until in December, 1950, and upon examination of the instrument, found that tuning would not hold because the pinblock had dried out. The tuner applied fluid treatment and returned on January 12, 1951, for tuning and then found that the pinblock had not responded to the fluid treatment and also found that the treblestring bridge was cracked about 1/4 of an inch; that the split was more than one year old; that the piano was entirely unfit for use without being repaired; that it will cost about $400 to repair the piano; that on or about February 17, 1951, plaintiff offered to return the piano and demanded return of his down payment; that down payment was not returned to plaintiff; that plaintiff still has possession of the piano; that the defendants represented the piano to be in good condition except it needed tuning; that the plaintiff knew nothing payment was not returned to plaintiff; that plaintiff still has possession of the piano; that the defendants represented the piano to be in good condition except it needed tuning; that the plaintiff knew nothing about pianos, and that an examination by the plaintiff would not have revealed the existing defects. The court further finds that, prior to the sale of this piano, it was represented and warranted by the defendants to the plaintiff that the piano 'is in good condition'; that in truth and fact the piano was not in good condition but it had a 1/4 of an inch crack in the treble-string bridge and that the block had dried out; that it would cost about $400 to repair piano; that such representations and warranty made by the defendants to the plaintiff were false; that the plaintiff was justified in relying upon such representations and warranty, and that by reason of such reliance upon said representations and warranty the sale was made.'

'Conclusions of Law

'The purchaser of the used piano, relying upon representations of the seller that the piano 'is in good condition' is entitled to rescind the sale and recover the full amount of the purchase price and return the piano to the seller when the piano was found to have a...