inspect the machine in Illinois and both Robertson and Erickson went to Illinois on or about December 14, 1960 for this purpose.
Erickson stated in his depositions that his purpose in inspecting the machine was to ascertain whether or not the same was operable. Erickson states that he at no time was aware of the fact that the machine was a 12 X 16 inch, that his function in inspecting the machine was to ascertain whether or not the same would operate satisfactorily (See Erickson's depos. p. 11). He states he could not tell the size of the machine by observing it.
Prior to the inspection trip by Erickson, the defendant addressed a letter to the plaintiff dated December 6, 1960 (Ex. P-3) in which he outlined the payment terms of the sale for the machine. The price was to be in the amount of $ 8,500.00 payable $ 3,500.00 in cash and the balance in twelve equal monthly instalments bearing interest at 6%.
On December 14, 1960 the defendant addressed a letter to the plaintiff enclosing a conditional sales contract covering the gathering machine. The conditional sales contract, also dated December 14, 1960, (Ex. P.-5) prepared by defendant, described the machine as follows:
' One (1) Sheridan 9 X 12' 28-pocket F&S. Type Gathering Machine with Ingersoll-Rand Pump and accessories, all as inspected by your Mr. Erickson at the Owen Plant, Maywood, Illinois * * * $ 8,500.' (Emphasis added).
Upon advice from Erickson that the machine was in operable condition with adaptations to be secured, the contract was executed by Bierenberg on behalf of the plaintiff and returned to the defendant with the plaintiff's check in the sum of $ 3,500.00 (Ex. P-7).
All of the documents in connection with the sale and the shipment of the machine from Chicago to the plaintiff's plant in Brooklyn, N.Y., indicated that it was a 9 X 12 inch machine. (See Ex. P-5, P-8, P-9 and P-13). In all of these documents received by the plaintiff the machine was plainly represented to be a 9 X 12 inch. Bierenberg believed at the time of the purchase and for some time thereafter that the machine in question was in fact a 9 X 12'.
It is also borne out by the testimony that the defendant knew at all times that the machine was a 12 X 16 '(Tr. P. 195) and Robertson testified (Tr. P. 202) that each time the machine was represented as 9 X 12' it was a 'mistake.'
The machine arrived some time in early January, 1961 at the plaintiff's plant and from January through May, 1961 efforts were made to utilize it without success. Bierenberg called in the Sheridan Company, manufacturers of this particular type machinery for help in the installation and adaption to the job. In addition, Acme sought the assistance of Erickson and later, at the request of Robertson, solicited the help of one Ed Ingve whom Robertson stated was the best informed man in the country in adapting and installing this type of machine. Ingve came in from Chicago and spent several days March, 1961 in attempting to remedy the situation.
In February 1961 the Sheridan Company indicated to Bierenberg they believed the machine was a 12 X 16 inch. When this was brought to the attention of the defendant, Robertson, he informed Bierenberg that the Sheridan people were in error and had made this statement only because they themselves were interested in selling new machinery. The plaintiff said it accepted this theory and continued to employ mechanics in order to put the machine in operable condition. It was after this reaffirmance of the size of the machine that the defendant suggested Ingve be brought into the picture to rectify matters.
Monthly payments were made on the purchase price of the machine until June, 1961 at which time plaintiff was again advised by representatives of the manufacturer that the machine was in reality a 12 X 16 inch machine.
Bierenberg alleges that he then told the defendant that he had been misled and he stopped making monthly payments.
Robertson states the first time he was advised by the plaintiff that the machine was a 12 X 16 inch rather than 9 X 12 inch was by letter from plaintiff's attorney, dated September 13, 1961, yet Robertson knew all the time that the machine was a 12 X 16 inch machine. He also testified, contrary to the above in his deposition. (Robertson's depositions pg. 90).
It was not contested that the machine was never made operable and was never utilized. Despite the efforts of the various mechanics to correct the difficulty the machine never functioned in the plaintiff's production line. Plaintiff in the interim has purchased a new 9 X 12 inch machine which is in operation at present.
The plaintiff's repair bills expended to adapt and install the machine purchased from the defendant are as follows:
Dismantling machine, Kamen.
(Ex. P-8) $ 748.12
Freight bill for shipping, Transamerican (Ex. P-10) 368.00
Ingve's bill, fifty hours (Ex. P-12) 517.54
Vanderhoff bills, $ 37.00 each (Ex. P-17) 72.00
Warren Robertson's bill, repairs (Ex. P-18) 112.00
Lary-Weiss Electric Corp., electrical work (Ex. P-20) 727.00
Sheridan Corp., modification, etc. (Exs. P-22, 24, 25)
total in evidence 535.80
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