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Derose v. Hunter Lindsay Corp.

Decided: July 23, 1956.

JOHN DEROSE, PLAINTIFF,
v.
HUNTER LINDSAY CORP., A CORPORATION OF NEW JERSEY, DEFENDANT



Civil action. On motion for new trial.

Larrabee, J.c.c.

Larrabee

Plaintiff DeRose sued defendant Hunter Lindsay Corporation, contending that he had purchased a diesel engine from the defendant, who represented that the item being sold was a new surplus G.M. marine diesel engine. Also, that there was an implied warranty under R.S. 46:30-21. The engine actually was a used surplus G.M. diesel engine. It lacked certain accessories used in connection with the operation of marine diesels and plaintiff complained that it operated poorly. Plaintiff's case was submitted to the jury which returned a verdict in the sum of $874.73, which corresponds with the amounts shown to be the cost of repairs and loss of profits. Defendant has moved for a new trial.

I.

Defendant contends that the measure of damages is exclusively "the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty." R.S. 46:30-75(7).

However, section 75 of the Sales Act contains paragraph (6) as well as (7). The two should be read together. Paragraph (6) specifies that "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." This is a general rule and it states the measure of damages that are recoverable in all cases of breach of warranty.

Paragraph (6) is followed by (7), as follows:

"(7) In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty."

This is a coordinate rule which is merely complementary of the more general rule expressed in paragraph (6) and is usually but not invariably applicable. Richmond v. Cretens ,

175 Wis. 297, 185 N.W. 247 (Sup. Ct. 1921); Marcum v. Potter , 148 Tenn. 251, 255 S.W. 47 (Sup. Ct. 1923); Suryan v. Lake Washington , 163 Wash. 164, 300 P. 941 (Sup. Ct. 1931) (cost of salvaging defective boat); Moss v. Yount , 296 Ky. 415, 177 S.W. 2 d 372, 151 A.L.R. 441 (Ct. App. 1944) (repairs to tractor); Minneapolis Threshing Mach. Co. v. Huncovsky , 52 N.D. 112, 202 N.W. 280 (Sup. Ct. 1924) (repairs to tractor); People's State Bank of Butterfield v. Randby , 158 Minn. 309, 197 N.W. 265 (Sup. Ct. 1924); Oxford Boatyard Co. v. Warman , 192 F.2d 638 (C.C.A. 4 th 1951) (repairs to boat).

II.

A perusal of 3 Williston on Sales shows that profits may be included. In fact, paragraph 614, page 371, and 614 A , and the 1956 Cumulative Supplement, page 87, shows that the standard urged by the defendant is not exclusive.

The venerated authority of Wolcott v. Mount , 36 N.J.L. 262 (Sup. Ct. 1873), appearing in the case books of some of our better law schools, was a very simple case of breach of warranty of quality in which loss of profits of the beet crop was allowed. Owens v. Anderson , 101 F. Supp. 32 (D.C. Alaska) ...


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