Statewide Food Corp. v. Simpson

Citation231 N.Y.S.2d 463,35 Misc.2d 887
PartiesSTATEWIDE FOOD CORP., Plaintiff, v. Joseph SIMPSON and Florence Simpson, Defendants.
Decision Date08 June 1962
CourtUnited States State Supreme Court (New York)

Lawrence Ratner, Brooklyn, for plaintiff.

Joseph Simpson and Florence Simpson, Deer Park, defendants in person, by Florence Simpson.

JOSEPH A. SUOZZI, Justice.

This is an action for damages for breach of a retail instalment contract. The amount claimed consists of the total contract price of $960.00 plus attorney's collection fees of $192.00. The contract described the item sold as a 'Zenith Ref./Freezer, Model No. RF 16 AA'. It is undisputed that plaintiff delivered a refrigerator freezer combination to defendants bearing model number RF 166AA; that plaintiff took defendants' refrigerator in trade (its trade-in value of $100.00 had been considered in computing the contract price of $960.00); that defendants have made no payment on account of the price to plaintiff; and that a demand for payment was made.

Defendant Florence Simpson testified that she had seen a refrigerator-freezer combination at a friend's home and contacted plaintiff in order to negotiate the purchase of one like it. She stated that Mr. Klein (plaintiff's president) called at her home in response to her inquiry and made the following representations: that the product was a 'Zenith' refrigerator-freezer; that both the freezer and refrigerator sections of the unit would defrost automatically; that it would fit into the space in her kitchen that her old unit had occupied; that he showed her a color brochure (Pl. Exh. 2) which, inter alia, led her to believe that he was selling her an automatically defrosting freezer. She further testified that, after having agreed to buy this product, as described by Mr. Klein, a unit was delivered which did not fit the space in her kitchen and did not contain a freezer section that defrosted automatically. She called Klein and asked him to take the unit back, but he refused.

Plaintiff testified that he never represented that the freezer defrosted automatically; that 'frost-free freezer' in Exhibit 2 refers only to the refrigerator portion; that his company does not sell the 'FF' model (automatically defrosting freezer) even though it is described in the brochure; that defendant received the 'AA' model which is the same her friend had.

The Court finds that the unit delivered to defendant was not the one she had agreed to buy and the one plaintiff had represented he was selling. It is clear from all the testimony in the case that there were two specifications essential to defendant when she agreed to make the purchase: that the freezer portion be automatically defrosting, and that the unit fit the space vacated by her old refrigerator. The freezer delivered did not meet these requirements, and this constituted a breach of...

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