Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The plaintiffs purchased from the defendant-appellant Joseph Grisafe, a dealer in automotive equipment, a second-hand Diesel tractor, bulldozer model. They brought this suit for rescission, damages for breach of an express warranty, and to restrain the sale of the repossessed equipment. The defendants counterclaimed for the balance due on certain promissory notes secured by a chattel mortgage executed by the plaintiffs to the Bank of Bogota to raise part of the purchase price and to pay for certain repairs to the tractor, and assigned after default to the defendant Josephine Brennan, who is conceded to be Grisafe's nominee.
The trial court determined that the defendant Grisafe had expressly warranted that the tractor would be in A-1 condition and that such warranty had been breached. It filed an opinion denying plaintiffs' plea for rescission because of laches, but directed entry of a money judgment in the amount of the excess of plaintiffs' damages over the sum due on the counterclaim, which excess was computed at $489.07. However, the final judgment actually entered awarded to the plaintiffs the sum of $2,195.97. This was explained at the oral argument as being on the basis that the trial court considered that since the defendants had repossessed the tractor, the counterclaim on the notes and chattel mortgage should be disallowed. The judgment also directed that the notes and the chattel mortgage be cancelled and declared Grisafe entitled to retain possession of the tractor. Thereafter, the defendants moved to amend the judgment to conform to the amount stated in the opinion, but the motion was denied and judgment for $2,195.97 was allowed to stand. The defendant Joseph Grisafe appeals.
From our study of the record, which we have read both in the appendices and the original transcript, we are in accord with the trial court's conclusion denying the claim for rescission and as to the existence of a cause of action for breach of warranty. Diepeveen v. Larry Vogt, Inc. , 27 N.J. Super. 254 (App. Div. 1953). Although the defendants
denied any expression of warranty and contended that the plaintiffs purchased the tractor "as is" in accordance with the terms of a bill of sale which was in evidence, the plaintiffs testified that they had never seen or been given any bill of sale. Significantly, nowhere in the record is plaintiffs' testimony denied, nor is it asserted by Grisafe that he ever showed or delivered the bill of sale to the plaintiffs, or advised them of its contents.
It is fundamental that in case of a breach of express warranty a buyer must elect between the remedies of rescission and recovery of damages. "An attempt to rescind, however, which is ineffective, e.g. , because not sufficiently prompt, will not preclude the allowance of other remedies." 3 Williston on Sales (rev. ed.) , § 612, p. 364. There was ample basis in the complaint for the relief by way of damages for breach of warranty.
The breach of warranty pertained specifically to quality -- defendant's representation that the tractor was in perfect condition, "A-1." The plaintiffs proved otherwise -- that it needed extensive repairs and even after they were made, the machine was not as warranted. The purchase price was $3,000, of which the plaintiffs paid $500 in cash and raised the balance by notes in the amount of $2,500. After delivery, the tractor broke down and repairs had to be made at a cost of $750.97, to pay for which the plaintiffs cancelled their previous notes and, with Grisafe's endorsement, recast their bank obligation in the amount of $3,387.50, secured by the chattel mortgage encumbering the tractor, to which reference has already been made. The machine still did not perform satisfactorily and after having paid $1,680.60 on account of their notes the plaintiffs defaulted. The bank pursued the defendant Grisafe as endorser on the notes. He paid the balance due on the notes and took an assignment of the chattel mortgage in the name of his daughter, Josephine Brennan. In her name the defendant then repossessed the tractor in the course of an attempted foreclosure of the chattel mortgage. In this proceeding he acknowledges that his daughter is acting in his behalf and therefore only a
nominal party, that he himself is the real party in interest. Sale of the tractor toward satisfaction of the claim was restrained by the court at the instance of the plaintiffs upon the filing of their complaint.
In admeasuring plaintiffs' damages the trial judge in his opinion declared "the measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty." He arrived at the sum of $489.07 as follows:
"Grisafe paid $1,000 for the bulldozer and expended $700 for repairing, so in the absence of other proof the value of the machine at the time of its purchase was $1,700. Had the bulldozer been in the shape warranted, its value would have been $3,000, a difference of $1,300. Plaintiffs expended $1,045.97 for repairs. The cost of the bulldozer hired to do the work of the disabled machine was $330. Thus plaintiffs' total damages would be $2,675.97. From this figure must be deducted the unpaid balance of the purchase price, amounting to $1,706.90 and ...