Schmelzer v. Winegar

Full title: JOHN SCHMELZER, Respondent, v. CHARLES WINEGAR, Defendant, Impleaded with…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jun 29, 1926

217 App. Div. 194 (N.Y. App. Div. 1926)

216 N.Y.S. 507

Opinion

June 29, 1926.

Appeal from County Court of the County of Erie.

George T. Vandermeulen, for the appellant.

Henry C. Price [ Matthew Weimar of counsel], for the respondent.

Present — HUBBS, P.J., DAVIS, SEARS, CROUCH and TAYLOR, JJ. All concur.

PER CURIAM.

The complaint states a cause of action for the recovery by the buyer of the purchase price paid for an automobile, after a rescission of the sale by the buyer for breach of warranty and an offer by the buyer to return the car to the seller. (Pers. Prop. Law, § 150, subd. 1, ¶ d, as added by Laws of 1911, chap. 571.)

The judgment which the plaintiff has recovered is for breach of warranty suffered by the buyer although keeping the motor car. (Pers. Prop. Law, § 150, subd. 1, ¶ b.)

These two causes of action are inconsistent and, therefore, mutually exclusive. In one the buyer repudiates the sale, and seeks to be restored to his status quo ante; in the other he affirms the sale and relies upon his action for damages. Where the seller has refused to receive the goods upon the buyer's offer to return them, and the buyer is, therefore, in position to avail himself of either of these remedies, he must make his election between them. ( Putnam v. Interior Metal Mfg. Co., 169 App. Div. 248; Brown v. Warwick, 80 Misc. 241; Norton v. Dreyfuss, 106 N.Y. 90; 2 Williston Sales [2d ed.] § 612.) The statute expressly so provides. (Pers. Prop. Law, § 150, subd. 1, as added by Laws of 1911, chap. 571.)

Upon the trial in this case no motion was made by the plaintiff to amend his complaint. The defendant did not tacitly consent to an amendment being made. When the plaintiff sought to introduce evidence of damages for breach of warranty, the defendant objected to the receipt of the evidence on the ground that such damages were not within the pleadings.

The judgment being not only unsupported by, but also inconsistent with, the cause of action alleged in the complaint, cannot be sustained.

We do not intend to intimate that under a proper pleading the plaintiff may not recover damages for breach of warranty.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

PER CURIAM.

Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event.