Whitman v. Jacobson

The plaintiffs sued to recover the agreed price of merchandise sold by them to the defendants. The answer admits the allegations of the complaint and pleads a counterclaim for damages for *247breach of warranty of quality of the goods. The court below sustained the counterclaim, and fixed the damages for breach of warranty at an amount equal to the purchase price of the cloth.

There was no evidence in the case to show that the plaintiffs were the manufacturers of the goods sold, and it follows, therefore, that there was no implied warranty that the goods were merchantable and free from latent defects. The question of an express warranty is not presented for decision, as there was no evidence that the salesman had authority to warrant the quality of the goods sold. The opinion of Mr. Justice Dowling in Pascal v. Goldstein, 51 Misc. Rep. 629, 100 N. Y. Supp. 1025, makes further discussion of the questions presented by this appeal unnecessary.

The judgment is reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.