On appeal from the Supreme Court.
For the appellant, Bilder & Bilder.
For the respondent, Schotland & Schotland.
The opinion of the court was delivered by
LLOYD, J. The plaintiff brought this action to recover the price of certain materials sold to the defendant and known as "leatherette." There was a counter-claim filed by the defendant claiming damages for breach of warranty as to the quality of the materials sold. There was a judgment in favor of the defendant on the counter-claim and the plaintiff appeals.
The material was purchased by the defendant to be used in the manufacture of children's coats and it was not disputed that it was warranted to be free from decomposition. The garments were made up from the material and sold to different purchasers. Complaints were made by the purchasers that the coats were sticky, wet and gummy, and the defendant claimed that this condition was due to decomposition of the cloth, and that it was obliged to allow a credit for the goods sold. It further contended that the materials unused were without value.
The case was heard by Judge Porter without a jury and he found as a fact that the warranty was made and that the unsalable condition of the garments was due to the decomposition of the material. The trial resulted in a judgment for a small sum in favor of the defendant. From this judgment the plaintiff appeals and contends that there was no evidence to support the judge's finding but that the goods were sold at a time after the market for them had passed, and that
the allowances which the defendant made to purchasers of the garments were due to this fact and not to any faulty condition in the material sold by the plaintiff.
Our examination of the evidence satisfies us that there was ample proof that the cloth was not as warranted and that it was unfit for the purpose for which it was sold. Also that the allowances which the defendant made to the purchasers of the made-up garments was because of the unfit condition of the cloth of which they were made. This being true it became a question of fact for the determination of the trial judge, and his finding, there being evidence to support it, is not reviewable on appeal.
The judgment is affirmed.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, VAN BUSKIRK, KAYS, ...