Krikorian v. Preiser

GILDERSLEEVE, P. J. The action is to recover damages for a breach of warranty arising out of the sale by the defendant to the ■plaintiff of a quantity of canned tomatoes. The answer is a general denial. The trial court awarded judgment to the defendant, and the plaintiff appeals. It appears from the testimony, that after some dickering the' plaintiff agreed to purchase the tomatoes at 80 cents per dozen cans and undertook to cart the goods to his own place. The plaintiff testifies that he then returned to his own place “and made a check, and sent [83] my man over there to buy 25 cases of tomatoes.” This transaction took place on August 7, 1908. Five days thereafter plaintiff wrote defendant a letter to the effect that the tomatoes were “no good” and demanded back the check he had given in payment. The. check was not returned, and the plaintiff, as we have seen, brought this action to recover damages for a breach of warranty. There is some conflict of testimony. The result depended upon the view of the evidence taken by the trial judge. After a careful reading of the evidence, I am satisfied that the trial court was justified in holding that the plaintiff failed to sustain the burden of proving the existence of a warranty. The judgment should not be disturbed. Judgment affirmed, with costs tó the respondent. MacLEAN, J., concurs.