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Cook v. Rice and Holman

Decided: February 21, 1947.

HOWARD COOK, PLAINTIFF-APPELLEE,
v.
CHARLES M. RICE AND JOSEPH S. HOLMAN, PARTNERS, TRADING AS MERLIN MOTOR CO., DEFENDANTS-APPELLANTS



On appeal from the District Court of the City of Camden.

For the plaintiff-appellee, Edward W. Eichmann.

For the defendants-appellants, Albert B. Melnik.

Before Justices Parker, Donges and Eastwood.

Eastwood

The opinion of the court was delivered by

EASTWOOD, J. Defendants-appellants appeal from a judgment recovered by the plaintiff-appellee in the District Court of the City of Camden, entered on the verdict of a jury. The action is based on an alleged breach of warranty made upon the sale to plaintiff-appellee of a used 1941 Packard automobile by the defendants-appellants on May 29th, 1945. The jury returned a verdict against the defendants-appellants in the amount of $380.56, and costs. The present appeal is grounded on alleged error on the part of the trial court in (1) the admission, over objection, of certain testimony by plaintiff-appellee's witnesses; (2) the refusal of the trial court to grant defendants-appellants' motion for a nonsuit; and (3) error in the charge of the trial judge.

Defendants-appellants are engaged in the business of buying and selling used automobiles. At the time of purchase of the automobile in question, plaintiff-appellee was given a

so-called "Dealer's Warranty." The warranty, that is the subject-matter of the present litigation, reads as follows:

"Dealer's Warranty

"The used car described below, including any equipment named in Appendix D of Maximum Price Regulation 540, is hereby warranted to be in good operating condition and to remain in such condition under normal use and service for a period of 30 days after delivery, or 1,000 miles, whichever may first occur.

"We, the undersigned, agree, if said car is delivered during the above period to our place of business, to make with reasonable promptness any repairs or replacements, which may be necessary to its good operating condition in accordance with normal use and service, at a cost to the purchaser named below of not more than 50% of the normal charge for such repairs and replacements. Our normal charge is not in excess of OPA ceilings.

"This warranty does not extend to tires, tubes, paint, glass, upholstery, or to any repairs or replacements made necessary by ...


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