plaintiff to receive new tubes or was he to receive new tubes of first quality?
Plaintiff produced two witnesses besides himself, George Yosco and Daniel H. Bolk, who testified as experts concerning custom and usage in the trade. A digest of their testimony leads the court to the conclusion that when those specifically in the tire and tube business order tubes they normally specify firsts or seconds. This was not done in this instance. What was ordered were 'new' tubes.
The depositions of Agustin Marisquirena, who examined the tubes as a cargo surveyor, taken before a U.S. Consul and introduced by plaintiff (P. 4 in evidence) have this to say concerning the condition of the tubes as they arrived at the point of destination, as shipped by plaintiff:
'Fourteenth Interrogatory: All tubes were new and unused but the major part of them had the factory brand erased and some had been patched up to cover factory defects.'
'Fifteenth Interrogatory: Out of the contents of 94 boxes, 539 tubes were in accordance with the required condition and 23 tubes showed signs of having been reconditioned or repaired by the manufacturers. Out of the remaining 239 boxes some 50 percent to 60 percent of the tubes were patched and all these tubes had the factory brand erased.'
An examination of the interrogatories of Stanley Robbins, manager of Plant No. 2, Robbins Tire and Rubber Company, Inc., the plant where the tubes were purchased by defendants for the purpose of filling this contract, discloses the following:
'Interrogatory No. 8: Some of the tubes had been patched, reinforced, and otherwise repaired because these tubes failed to pass company inspection and were repaired, reinforced and patched so as to conform to our manufacturing standards. These repairs were due to routine manufacturing imperfections and the repairs, patches or reinforcements were accomplished to remedy such imperfections.
'Interrogatory No. 10: Yes. They were known as new tubes. The actual strength of the tubes is greater than other tubes, and the only difference is in the appearance.
'Interrogatory No. 1: Yes. The difference in July, 1946 was 18 cents per tube for size 616. First line tubes sold for $ 1.94 per tube (size 616) and seconds sold for $ 1.76 (size 616) in July, 1946.'
The answers to the interrogatories propounded to Glenn Taylor, Vice-President in charge of sales and distribution of the manufactured products of Robbins Tire and Rubber Company are the same as Stanley Robbins' answers to the same questions. Both these interrogatories were offered in evidence by defendants and became exhibit D-1.
Therefore, it appears, and I so find, that the plaintiff ordered new tubes and got new tubes but not first line or quality.
What is the meaning of 'new'? Webster defines it as follows: 'Having existed, or having been made, but a short time; having originated or occurred lately; not early or long in being; recent; fresh; modern; opposed to old.'
Corpus Juris, 46 C.J.,page 13, defines it as follows: 'A relative term that has been defined as meaning not yet used or worn; now first used for some purpose; recently made; still unimpaired by use. In its ordinary acceptation the opposite of the term 'old'.'
And Judge Galston in United States v. Pyramid Auto Sales, D.C., 50 F.Supp. 868-869, said: 'The defendants' argument in effect is that the Government should charge that the trucks were not second hand or used trucks. It is sufficient for the indictment to allege that the trucks transferred by the defendants were 'new'. Everybody knows what 'new' means * * * .'
Therefore, it appears that while the plaintiff may have intended that he purchase first grade or first line tubes, he got exactly what he contracted for, namely, new tubes and consequently no breach of contract occurred.
If breach had occurred, it is extremely doubtful under the applicable law of New Jersey that plaintiff could recover damages inasmuch as the tubes sold for more than the price paid to defendants; but inasmuch as the courts finds no breach occurred and this disposes of the matter, it will be unnecessary to discuss the other question.
Prepare findings and an order in accordance herewith.
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