Adler v. Rosen

MoBBIDE, J. A perusal of the record of this petty case shows that the real difference between the parties was never more than $35 on a bill of $193.70. The defendant was willing to accept and retain the goods (thirty-five pairs of shoes) at a deduction of one dollar per pair, and the plaintiff was willing to deduct $18, which deduction defendant refused to accept; and because of this difference the case has been dragged through two trials and comes here for the third. That the law permits this sort of litigation, may explain why this court in a state of considerably less than a million inhabitants has to pass upon as many appeals as the court of appeals of the state of New York, which state has over ten million inhabitants. We do not suggest a remedy for such an evil, but feel that the public interest and the delay caused in the consideration of really important matters by these small cases justify us in at least referring to it. The affirmative defenses are really the pleader’s own conclusions of law from facts not stated. There is an implied warranty that goods sold by sample shall be equal in quality and value to the [422] sample exhibited, and possess the same characteristics. To furnish goods of an inferior quality is a breach of such warranty and a fraud upon the buyer, justifying him in refusing to accept them. But it is not enough for the buyer to urge generally as a defense that the goods do not correspond to samples exhibited to him. He must state facts showing wherein they differ, so that the court can see whether there is or can be any substantial difference. There is no material difference, so far as pleading is concerned, between a complaint in an action for breach of warranty and an answer alleging a breach of warranty as a defense to an action for nonpayment of the purchase price. In either ca;se the party charged with having warranted the quality of the article is entitled to be informed' from the pleading the extent of the warranty and the particulars of the breach. It is not enough to allege generally that a seller warranted an article and that he breached the warranty, which is the legal effect of the pleading here, in substance that the plaintiff sold by a sample and representations as to quality and that the goods sent did not come up to the sample and representations: Aermotor Co. v. Earl, 18 Ind. App. 181 (47 N. E. 685); Hough v. Gage, 74 Ill. 257; Spinks v. Washington, 96 Ga. 756 (22 S. E. 326); Plano Mfg. Co. v. Richards, 86 Minn. 94 (90 N. W. 120). The special defenses urged are not sufficiently pleaded to raise any issue. The findings are sufficient to cover all the issues actually raised, and there is some evidence to sustain each finding. That part of finding IV which states that by- receiving and retaining the goods the defendant has waived the right to refuse payment on account of any alleged breach of warranty is outside the legal issues and is a mere [423] conclusion of law, neither adding to nor detracting from the force of the other findings. The judgment is affirmed. Affirmed. Rehearing Denied.