
    THE AMERICAN PHOTO PLAYER COMPANY, PLAINTIFF, v. PETER SPASSINO, DEFENDANT.
    Submitted November term, 1923
    Decided March 27, 1924.
    Sale of Goods — Installment Payments — Counter-Claim for Damages for Failure to Perform — Verdict for Defendant — Judge’s Charge Not in Harmony With “Sale of Goods Act.”
    Oil rale, &e.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    Eor the plaintiff, Frank Koch,.
    
    For the defendant, Dante RiveUi.
    
   Per Curiam.

The complaint in this suit shows that the plaintiff by an agreement dated February 25th, 1920, sold to the defendant a musical instrument, known as a Robert-Morton, Stjde 75, complete, &c., for the sum of $7,620, and took back a mortgage upon the same, paj’able in installments. This suit was brought to recover the balance of the installments unpaid amounting to $1,687.64, with interest from April 13th, 1922. The defendant sets up by way of defense that, by the terms of the said agreement, the plaintiff agreed to repair the instrument for a period of one year from installation such repairs as were necessary, which it did not do. The plaintiff has not installed and set up said musical instrument and has not rendered such repair service as was necessary. Filing counter-claim of $5,000 damages. The trial resulted in a verdict for,the defendant for $4,022.07 The plaintiff obtained a rule to show causé why a new trial should not be granted, and writes down eight reasons for a new trial. The trial judge charged the jury thus: “If this instrument installed was not installed in a reasonably fit condition for the purpose for which it was to be used and for which it was sold. If that has been made out then the defendant is entitled to a judgment for the sum of $4,022.07. If that has not been made out then the plaintiff is entitled to your verdict for $1,687.64.” This was injurious error, because it was not in harmony and in accordance with the provisions of the “Sale of Goods act.” 4 Comp. Stat., p. 4663, §§ 66, 69; Hirsch v. Verschur, 93 N. J. L. 277; Wurlitzer Manufacturing Co. v. United, &c., Co., 87 Id. 656. The suit was commenced April 20th, 1922. The defendant had the use of the musical instrument for a period of two years.

The rule to show cause must, therefore, be made absolute.  