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Adams v. Peter Tramontin Motor Sales Inc.

Decided: November 2, 1956.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


Appeal from a judgment of involuntary dismissal granted on defendant's motion at the close of plaintiff's case in a county district court action for damages for breach of express warranty and implied warranty in connection with the defendant's sale of a 1955 Pontiac automobile. The matter comes before us on a statement of the evidence, findings of fact and conclusions of law, prepared and filed by the trial judge.

The amended complaint is in two counts. The first alleges that on November 4, 1955 defendant, a retail dealer in Pontiac automobiles, by its agents, servants and employees warranted to plaintiff that a 1955 Pontiac "was perfect for the purpose for which it was intended" and "completely free of mechanical defects"; that defendant made such warranties and representations to induce plaintiff to purchase, knowing the purpose for which the car was intended, and that plaintiff relied upon them; that she used the Pontiac in accordance with defendant's directions, representations and warranties, and found the car not fit for the required purpose. The second count sets up implied as well as express warranties by defendant that the automobile sold was fit for the purpose intended; that plaintiff, relying upon defendant's skill, judgment, warranties and representations, bought and used the car and, by reason of its defective condition, incurred expenditures.

Plaintiff testified that on the evening of November 4, 1955 she, her uncle and mother, visited defendant's salesroom where the manager showed her a new 1955 Pontiac. In the course of their discussion he said, "This car is perfect for you, you couldn't buy a better car." She signed the necessary papers for the purchase of the car the same evening. It was delivered a few days later, after certain other formalities had been completed. Plaintiff further testified that the manager informed her there was a 90-day guarantee with the car "in case anything went wrong." Although the guarantee and a certain booklet received with the car were referred

to in the course of her testimony, neither was received in evidence.

Plaintiff's story was that soon after receiving the car she noticed the interior was dirty and she had trouble with the speedometer cable; three days later she noticed a rumble in the rear of the car; two or three weeks after delivery she found black smoke coming from the exhaust, the car stalled and the motor missed; the door locks and tumblers were defective and had to be replaced; the dome light did not work and the dashboard shook. She complained to defendant's service manager on each occasion and he asked her to bring the car back for repair. She did so seven or eight times. Asked whether defendant had ever refused to take care of repairs, she replied, "They never said they weren't liable."

Plaintiff's only other witness was her uncle, who testified that the motor missed and there was a rumbling noise in the rear some three or four days after the car was delivered. He took the car to defendant's shop where the springs were oiled, but he still heard the same noise. Two weeks later he brought the car back because of a missing motor, and after defendant had replaced the spark plugs the Pontiac ran "pretty good." The next day he took it in because of the rear noise. The record is silent as to what was done on this last occasion, but apparently there was no further complaint. The uncle testified that defendant never said that "they wouldn't fix it" -- "They always fixed it."

Plaintiff's attorney having rested his case, defendant moved to dismiss the complaint. The trial judge concluded as a matter of law that the statement and actions of the defendant, by its agents or servants, did not spell out an express warranty, and since plaintiff had purchased a specific article, namely a Pontiac automobile, under its trade name, there was no implied warranty as to its fitness for any particular purpose. Plaintiff thus having shown no right to relief, he granted defendant's motion and entered judgment in its favor.

The express warranties upon which plaintiff relies are the manager's statement that "This car is perfect for you,

you couldn't buy a better car," and the 90-day guarantee that went with the car "in case anything went wrong."

R.S. 46:30-18, which is identical with the provisions of section 12 of the Uniform Sales Act, provides:

"Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only, shall be construed as a warranty."

The manager's statement was nothing more than dealers' talk or puffing, and falls within the second sentence of the quoted section, which reflects the ancient maxim, simplex commendatio non obligat -- mere recommendation does not bind. What he said was not an "affirmation of fact or any promise." See, generally, 40 Am. Jur., Sales , § 326, p. 506 et seq. (1943); 77 C.J.S., Sales , § 310(c), p. 1140 et seq. (1952); 1 Williston on Sales (rev. ed. 1948), § 202, p. 517, and see § 203, p. 518 et seq., n. 16, for contrasting decisions of statements of fact and of opinion. Compare the puffing in this case with the seller's representation in Diepeveen v. Larry Vogt, Inc. , 27 N.J. Super. 254 (App. Div. 1953), that the plant bulbs were "of first grade quality," and in St. George v. Grisafe , 38 N.J. Super. 297 (App. Div. 1955), that the tractor was in perfect condition, "A-1" -- held to be representations of fact regarding the product and hence express warranties.

The statement here was directed not at the product, but at the personal taste of the buyer, and was clearly an expression of only the seller's opinion as to the suitability of the car for plaintiff's general requirements. Whether the Pontiac was indeed "perfect" for plaintiff and whether she "couldn't buy a better car" were matters on which she reasonably could be expected to have an opinion of her own, and to ...

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