Opinion
April, 1908.
Herman Hirschman, for appellants.
Maurice Meyer, for respondent.
It is difficult to see upon what theory this judgment can be sustained. The plaintiff's own evidence shows the facts to be substantially as follows, viz.: Plaintiff is a ladies' tailor, and defendants are woolen merchants and importers. Either in December, 1905, or February, 1906 (for plaintiff is uncertain of the date, while defendants are sure it was in December, 1905) defendants' salesman said to plaintiff: "I have the best piece of cloth in the market, and I want you to have one, and I will send you one up." Plaintiff replied that he had no immediate use for it, but told the said salesman to "send it in; and, if it is good, I will put it away on the table." A day or two later the cloth was delivered to plaintiff. This cloth was not manufactured by defendants, but imported by them from abroad. Plaintiff paid for the goods in May or June, 1906. The said cloth was placed, upon its delivery to plaintiff, upon the latter's stock table. Thereafter, but on some date not given, plaintiff's wife cut off thirteen and one-half yards from said piece of cloth. Thereafter, and in August, 1906, plaintiff cut off another yard and a half from said roll of cloth. The whole of the fifteen yards of said cloth so cut off were used for plaintiff's purposes. In September, 1906, for the first time, plaintiff examined the roll itself and found holes in it. He then complained to defendants and offered to return the remains of said piece of cloth, and demanded the return of the purchase price, which was refused. Thereupon plaintiff brought this action and recovered a judgment for eighty-four dollars and eighty-six cents damages and fourteen dollars and sixty-seven cents costs. Defendants moved for a new trial, which motion was denied. From said judgment and order denying the motion for a new trial defendants appeal. There is no evidence as to the cause of the holes in the cloth, or the time of the making of the same, except that an expert testified that in his opinion the damage had been done by some machinery in the rolling; but he also stated that it might have been done subsequently to the rolling by some sharp instrument. The proof, therefore, of the damage having been done previous to the delivery of the goods to plaintiff is extremely slight. The cloth apparently lay on plaintiff's table from December or February until September before plaintiff discovered the defects, although a very ordinary inspection would have shown the said defects, had they existed, at the time of delivery. Defendants claim, without contradiction, that, had the defects been discovered and the cloth returned within a reasonable time, defendants could have returned it to the house from which they purchased, but that it was too late to do so at the time plaintiff finally made his discovery and complaint. As above stated, defendants were not manufacturers of the cloth; and there is no implied warranty of quality or fitness, even as to latent defects; and the defects in question, if there were any, were not latent, but easily discoverable, as we have seen. It can hardly be claimed that there was any express warranty, as the statement of the defendants' salesman, that "he had the best piece of cloth in the market," was at best a mere expression of opinion. It is evident that plaintiff so understood it; for he told the salesman to "send it in, and, if it is good, I will put it away on the table." This implies an intention to examine the cloth and ascertain whether or not it was good before "putting it away on the table." Instead of so examining it plaintiff put it immediately on his table, subsequently used fifteen yards of it, and finally, several months after the delivery of the cloth, examined it.
The judgment and order must be reversed, and a new trial granted, with costs to appellants to abide the event.
Present: GILDERSLEEVE, SEABURY and DAYTON, JJ.
Judgment and order reversed and new trial granted, with costs to appellants to abide event.