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Buff v. Giglio

Decided: May 21, 1973.

EDISON BUFF, INDIVIDUALLY AND TRADING AS J. BUFF & SON, PLAINTIFF-APPELLANT,
v.
PIETRO GIGLIO, DEFENDANT-RESPONDENT



Kolovsky, Matthews and Crahay.

Per Curiam

In this contract action plaintiff appeals from a judgment for defendant entered on a jury verdict in the County District Court and from the denial of his motion for a judgment n.o.v. (R. 4:40-2).

Plaintiff, a steam pressing appliance dealer, instituted this action demanding $1,650 which represented the unpaid balance on two contracts for the sale of used and rebuilt machinery to defendant, a custom tailor. The form complaint

contained the four counts usually found in District Court actions of this type i.e. 1) book account; 2) goods sold and delivered; 3) reasonable value of goods sold and delivered; and 4) account stated. (A fifth count was added seeking the recovery of $300 on a check issued to plaintiff by defendant which was not paid because of insufficient funds.)

Defendant, in his answer, generally denied the allegations of the complaint and asserted five separate defenses -- 1) Statute of Frauds; 2) lack of consideration; 3) breach of express and implied warranties of merchantability; 4) that the services rendered by the plaintiff in connection with the sale of the goods was not performed in a workmanlike manner; and 5) breach of contract. Defendant in two counts counter-claimed for damages, essentially urging breach of express and implied warranties of merchantability.

The factual background of the dispute was that in December 1969 plaintiff sold to defendant a pressing machine, boiler, iron and condensation unit for an agreed price of $1,900. In February 1970 plaintiff sold to and installed for defendant a sleeve-blocking machine for an agreed price of $500. Defendant made a payment on the contract in October 1970 of $400 and a second payment in February 1971 of $400. In June of 1971, approximately eighteen months after the first transaction, a third payment of $300 was tendered by check but it was not honored because of insufficient funds, whereupon plaintiff filed his complaint.

Plaintiff testified that he made normal maintenance calls during the first year the equipment was installed in defendant's shop and that there were no claims that the equipment was not functioning with the exception of a specific complaint and problem relating to a malfunctioning pilot light in the boiler. Defendant on the other hand testified that he had constant trouble with the equipment and that it only worked for a few days over the two-year period generating constant calls by him to plaintiff's office to complain. Without specifying dates, defendant testified that he offered to return the machine a few times when he "was tired" of it.

A defense witness, Dartley, who for many years had operated a cleaning establishment and who had done pressing work for defendant opined that the rebuilt equipment was totally inadequate -- that the pressing machine was bulky and probably more than twenty years old. He further testified that defendant was required to have him assist in his pressing work and that for a time Dartley's bill to defendant was between $7.50 and $10 per week.

At the close of the proofs, the Court granted plaintiff's motion to dismiss the counterclaim but permitted the jury to consider as a defense to plaintiff's action for the unpaid balance, defendant's affirmative defense of breach of warranty.

In its instructions to the jury the court gave them the option of an "all or nothing" choice of verdicts, advising them that if they found the plaintiff had preponderated, he would be entitled to "one lump sum" and that on the other hand if they found that the plaintiff had not "provided a preponderance of legal evidence" they were to return a verdict for the defendant of "no cause for action." The jurors during deliberations asked for a clarification as to what rule would be applicable if they voted "no cause for action" or if they voted for the plaintiff. The court in response to the question instructed them that they would return a verdict for the plaintiff for the total amount due of $1,650, or if on the other hand they found "no cause for action", the plaintiff would not be entitled to "any funds".

We are satisfied that the trial court committed error in the manner in which it structured the causes of action and ...


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