On appeal from the District Court of the Third Judicial District of the county of Bergen.
For the defendants-appellants, Milton T. Lasher.
For the plaintiff-respondent, Albert S. Gross.
Before Justices Trenchard, Parker and Perskie.
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the defendants below from a judgment for the plaintiff in the District Court in a suit founded upon the alleged breach of an alleged warranty made by the defendants in connection with the sale of a quantity of anti-freeze liquid known as "Super Thermo" to the plaintiff by the defendants who were distributors of the liquid (not the manufacturers).
The state of demand alleged that the defendants warranted that the liquid "would protect the water in automobile radiators from freezing at certain specified temperatures and solutions when used in said radiators in certain specified quantities and solutions, when so used in accordance with the directions," and that such liquid "failed to protect the water contained in said radiators from freezing contrary to the covenant and warranty," and as a result thereof the plaintiff sustained damages to three motor vehicles wherein the liquid was used.
The sale of the liquid by the defendants to the plaintiff was not disputed, and the issue narrowed to the question of whether the warranty existed, and if it did, whether there was a breach for which the defendants should respond in damages.
The trial judge found for the plaintiff and the defendants specify that the court below erred in refusing to grant defendants' motion for a nonsuit, and erred in entering judgment for the plaintiff in that the evidence presented did not support a finding in law that the alleged warranty had been breached.
Now we think the defendants' position was well taken. It may well be that the evidence established a warranty, but that question is not now necessary for decision. Assuming that there was a warranty, the state of the case fails to establish that
there was any breach thereof for which the defendants were liable.
The general rule applicable here is that the breach of a warranty must be proved as laid; and the universal rule is that the burden of proof is on the party relying on the alleged breach of a warranty to show ...