Opinion
May, 1914.
This action is for damages for false representations in the sale of a motor car. The defendant counterclaims for damages for plaintiff's failure to do certain advertising for defendant. Plaintiff, who had already owned cars sold by defendant, purchased on April 4, 1912, a six-cylinder five-passenger car for the price of $1,850, paying $600 in cash, $650 by turning in his old car, and as to the remaining $600 agreed to place advertisements at certain stations of the Long Island Railroad Company. By agreement one-half of this advertising was to be done for another company. The plaintiff alleges that defendant represented and warranted that the car sold was a new one and was in first-class condition. The principal question litigated was whether or not this representation had been made, defendant claiming that plaintiff had purchased the car well knowing that it had been used to a considerable extent. Upon this issue the jury found in plaintiff's favor, but for some reason, not apparent, awarded only nominal damages, although it was clearly shown that the car was not a new one and was far from being in first-class condition. To find that the representations were made as claimed by plaintiff, and yet to award only nominal damages, was so inconsistent as to compel the conclusion that the verdict was against the evidence. The court directed a verdict in favor of defendant upon the counterclaim. This was error. The plaintiff had never refused to display defendant's advertisements. He could not do so until the matter to be displayed had been furnished him and this was never done. The judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event. Ingraham, P.J., McLaughlin, Clarke and Hotchkiss, JJ., concurred. Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.