Barry v. Cronin

It appeared that the taxicab, to the sale of which the action related, was delivered to the plaintiff by the defendant on April 5, 1927. Other material evidence at the trial in the Superior Court before Walsh, J., is stated in the opinion. The Judge denied a motion by the defendant that a verdict be ordered in his favor. There was a verdict for the plaintiff in the sum of $499.40. The defendant alleged an exception. There are three counts in the declaration, all in contract for the same cause of action, the plaintiff seeking to recover money paid to the defendant on account of the purchase of a taxicab by reason of alleged breach of an express warranty made by the defendant. The answer was a general denial and plea of payment. The plaintiff testified that after an earlier conference, he met the defendant in the latter part of March, 1927, and decided to purchase the taxicab, and the defendant said: ""I will guarantee to you that this car I will get you will be in perfect condition, and I also will guarantee that this car will be good for ninety days in perfect condition."" The plaintiff replied: ""Well, if this is the way, and you guarantee that, I will rely on your word."" The plaintiff further testified that he did not have the money with him to make the down payment, and so told the defendant; that on the same occasion ""about two days before April 1 he and the defendant entered into an agreement for the purchase of the automobile, nothing being said about signing any paper at that time""; that on April 1, 1927, he returned to the defendant's place of business and paid a deposit "" and signed a paper."" This paper was entitled ""Order Blank,"" was directed to the defendant and stated an abbreviated description of a taxicab, its price, time of delivery, terms of payment, and no warranty of any kind but this clause, ""It is understood and made part of this agreement that title of ownership of car as above described does not pass to me until final cash payment is made, and that no verbal agreement or understanding is binding unless noted on this order."" It was signed by the plaintiff and countersigned by the defendant. There was testimony, which, although contradicted, might have been believed, to the effect that there was breach of the alleged warranty.