Empire Galvanizing Co. v. Maser

Opinion by

Henderson, J.,

The plaintiff sold a used automobile truck to the defendants for $800; $800 of the purchase price being paid in money and the balance secured by the defendant’s judgment promissory note, payable to the plaintiff in sixty days. Judgment having been entered on the note, application to open the judgment was made by the defendants for the reason that the note was given “on account of work and labor done by the Empire Galvanizing Company. The work and labor was never done by the Empire Galvanizing Company.” The judgment was opened pursuant to the defendant’s application. At the trial an entirely different defense was presented; the defendants asserting that the note was given in part payment of the purchase price of the automobile truck, and that the consideration had failed because of the defective condition of the truck and the failure of the plaintiff to comply with its agreement made at the time of the sale to have it put in good condition. In support of the defense, a bill of sale by the plaintiff to the defendant was offered, attached to which was an agreement of the plaintiff in form as follows: “We agree to have the car looked over by the Autocar Company, and replace all broken parts and adjust brakes and tune up the engine. Empire Galvanizing Co., Inc., per H. G. Pearlman, Pres.”

The truck was bought after an inspection made by one of the defendants and an expert mechanic whom he employed to examine it. It was admitted that the truck was sent to the Autocar Company for repairs, and that the plaintiff paid a bill there of $115 for work done on it. The contention of the appellant seems to have been that there was a verbal understanding that the truck should have been placed in perfect running order, including a new engine if necessary; but the undertaking of the plaintiff, with respect to repairs, was set forth in the bill of sale and it contains a clear implication that it was not contemplated that a new motor should be used.

There was no competent offer of evidence to qualify the terms of the written obligation of the plaintiff to repair or to show that its written obligation had not been complied with. The trial judge did not err, therefore, in instructing the jury that the appellants have failed to make out a defense.

The assignments of error are overruled, and the judgment is affirmed.