The opinion of the court was delivered by: COOLAHAN
This action was instituted under diversity of citizenship jurisdiction and tried before the Court without a jury. It involves the purchase and sale of a Gullberg & Smith type gathering machine, which machines are made exclusively for the bookbinding industry but with certain adaptations can be effectively used to collate and box greeting cards.
The plaintiff, Acme Finishing Co., Inc., is a New York corporation and was engaged in the business of collating, boxing and shipping greeting cards. Its president, Irving Bierenberg, was its primary managing officer.
The defendants, Robertson Brothers, Inc., a new Jersey corporation and Arno Robertson, its agent, are engaged in the business of selling used machinery for printing and bookbinding, as well as collating. Generally there were two size gatherers in common usage, namely the 9 X 12 inch and 12 X 16 inch machines. The defendants had previously sold such machines of the 9 X 12 inch calibre to the greeting card industry, but had never sold a 12 X 16 inch machine for this purpose prior to the sale in question.
'32 -- Pocket Gathering, Stitching and Jogging Machine: Size 12' X 16'; Including 4 New Dexter Pockets; New Dexter 1 1/4' Three-Wire Side Stitcher; With DM 2-way Automatic Jogger, Quincy, Model 230, Air Compressor, Ingersoll-Rand, Model 244X2, Air Compressor; Roots, New Acme Size 4, Blower; Complete with Accessory Motors and 10 H.P. Varidrive, Motor and Controls.'
Later Bierenberg received a telephone call from Robertson in which Robertson solicited Acme's interest in the machine. However, Bierenberg declined because of the size of the machine which was listed in the brochure as 12 X 16 inch and the matter was temporarily abated.
On November 28, 1960 Robertson addressed a letter to one Roy Erickson, an employee of the Williamsburg Greetings Corporation in Massachusetts and at the same time enclosed a copy of the brochure above referred to. In that letter (Ex. P-2) Mr. Robertson described the machine as follows:
'In Chicago, we purchased a 32 pocket Dexter and G&S Combination, pictures of which are enclosed. The information is incorrect in that 28 boxes are G&S 9 X 12. We have sold the Dexter part of it which includes the drive, 4 pockets, 3-wire stitcher, and delivery. We can now offer the 28 pocket G&S balance . . . $ 8,500 'where it stands' in Chicago. This machine took care of the Owen Plant and is in a reasonable condition.
In my opinion, it might be worth your while to inspect both equipments. We will be glad to make arrangements to have you see the machine at a time convenient to you.' (Emphasis added.)
At or about this time Erickson was aware of the fact that the plaintiff was attempting to locate such a machine. As a matter of fact Erickson had been advised of this by Robertson by letter of October 13, 1960 (Tr. Pg. 191). He also was informed of this fact by Jack Schwartz, a friend of Bierenberg and a former employer of Erickson.
After Erickson had forwarded the letter (Ex. P-2) to the plaintiff, a conference was had in the office of the defendant corporation between the parties. Schwartz accompanied Bierenberg to that meeting. This conference was had some time between November 28 and December 6, 1960. The subject matter was a discussion of the machine located in Maywood, Illinois.
The defendant Robertson admits that during the conference Bierenberg had specified he wanted a 9 X 12 inch gathering machine. (Tr. Pgs. 193-195). At this meeting the plaintiff questioned the description in the brochure but was assured that the printed legend was mistaken and that the machine was in reality a 9 X 12 inch size. The defendant further assured the plaintiff that with certain adaptations the machine would satisfactorily perform the work the plaintiff required. It was suggested by Robertson that Erickson be hired by Acme to 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 ...