Rudolph Wurlitzer Co. v. Pappas

Crouch, J. Plaintiff sold defendant, under a conditional sales contract, a mechanical piano with a nickel-in-the-slot attachment for use in defendant’s candy store. There was a warranty of fitness and an agreement to keep in repair for a year. Plaintiff sues for the balance of the purchase price. Defendant alleges breach of warranty and rescission and seeks the return of the payments made by him. Judgment went for defendant. The contract was made March 2, 1920. The price was $2,100. Defendant made a down payment of $400, consisting of $58 in cash and an allowance of $342 on an old piano. The balance was to be paid at the rate of $71 per month. Defendant met none of the monthly payments. The piano was delivered on March 16, 1920. Between that date and the middle or last of July there were seven or eight occasions when it failed to operate. On each occasion the plaintiff at the request of defendant sent a man to remedy the trouble. So far as the evidence shows there was nothing mechanically wrong with the piano. The difficulty seems to have been with a so-called tracker bar which in each instance simply needed to be cleaned. Except for those interruptions, the piano was operated and defendant had the benefit of whatever revenue was derived therefrom. Then there came an occasion when the piano again failed to work and plaintiff, because none of the monthly payments had been made, omitted to send the repair man and began to press for payment. On July seventeenth defendant wrote plaintiff that the piano was unsatisfactory and requested plaintiff to remove it. On July twenty-third there was another letter to the same effect. On July thirtieth plaintiff’s [25] attorney notified defendant that the account was in his hands for collection. On August sixteenth defendant’s attorney wrote plaintiff’s attorney requesting him to. “ see if this matter cannot be satisfactorily adjusted.” There followed during the rest of the year a correspondence in which defendant asked that the piano be replaced by a new one and in which plaintiff apparently expressed a willingness to do so, if the back installments were paid. Even if the letters of July seventeenth and July twenty-third be taken as an act and notice of rescission, not waived by subsequent negotiations, we think they came too late. Whatever defect there was in the piano was apparent within .two days of its delivery. Its retention and use during a period of four months was such acceptance as precludes the right to rescind. Defendant’s remedy is by way of damages, if any, for breach of warranty. (Miller v. Zander, Nos.1 & 2, 85 Misc. 499; affd., 166 App. Div. 969; 24 R. C. L. 291, § 573; Id. 293, § 575.) Nor does the fact that the contract here was one of conditional sale affect the question. (Peuser v. Marsh, 218 N. Y. 505; Studebaker Corp. v. Silverberg, 199 N. Y. Supp. 190.) Hubbs, P. J., Clark, Sears and Taylor, JJ., concur. Judgment and order reversed on the law and facts and new trial granted, with costs to appellant to abide event.