Weiss v. Gross

• Citation: 165 A. 90
• Decision Date: 17 January 1933
• Docket Number: No. 439.,439.
• Parties: WEISS v. GROSS.
• Court: United States State Supreme Court (New Jersey)

165 A. 90

WEISS

v. GROSS.

No. 439.

Supreme Court of New Jersey.

Jan. 17, 1933.

Appeal from District Court of New Brunswick.

Action by Jacob Weiss against Nathan Gross. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued May term, 1932, before TRENCHARD, CASE, and BROGAN, JJ.

Dubrow & Sellyei, of Perth Amboy, for appellant.

David S. Jacoby and Emil Stremlau, both of Carteret, for appellee.

PER CURIAM.

This is an appeal by the defendant below from a judgment of the district court of New Brunswick in favor of the plaintiff rendered by the trial judge sitting without a jury.

The plaintiff sued for the recovery of a deposit paid by plaintiff to defendant on a written agreement for the purchase and sale of an automobile which was not delivered (first count) and upon an agreement to rescind the agreement of sale and return the deposit (second count).

The plaintiff admitted the making of the agreement for purchase, dated May 23, 1929, which called for the delivery of a 6-80 Stearns Knight-Maroon automobile, year of make 1929. Upon the trial plaintiff introduced evidence that defendant had represented the automobile to be delivered to be a new car of the above model and not a secondhand one; that the automobile which the defendant tendered for delivery was a secondhand automobile, and that upon plaintiff's objection the defendant agreed to rescind the contract and to return the deposit money, which was not done.

We think the court did not err (as defendant contends) in permitting plaintiff to answer the question as to whether he was to get a new or secondhand car. The agreement contained nothing as to the condition of the automobile to be delivered, and it was therefore in this respect ambiguous. The language was applicable to a new or a used car. Dordoni v. Hughes, 83 N. J. Law, 355, 85 A. 353; Auto Brokerage Co. v. Ullrich, 102 N. J. Law, 341, 131 A. 901; Bantin v. Stanley Automobile Agency, 132 A. 500, 4 N. J. Misc. 325; Winfield v. Saunders, 142 A. 907, 6 N. J. Misc. 833.

We think there was evidence upon which the court could and did find for the plaintiff.

The judgment will be affirmed, with costs.