
    Sure Seal Company, Appellant, v. Charles C. Loeber and Others, Individually and as Copartners, Doing Business under the Firm. Name and Style of Loeber Pickling and Preserving Works, Respondents.
    First Department,
    February 11, 1916.
    Sale — action for goods sold and delivered — defense — false representations — breach of express warranties —no implied warranty where goods known and sold by trade name — appeal — when Appellate Division may not enter final judgment.
    In an action by the manufacturer of “ Sure Seal Caps ” against a manufacturer of fruit preserves, to recover a balance due for caps sold and delivered, it appeared that the defendants, having a quantity of preserves which had spoiled, purchased caps from plaintiff’s salesman and paid therefor, and several months later ordered other caps, which were stated in the plaintiff’s catalogue not to he proof against pressure, although there were caps listed therein which were pressure proof. The defendants alleged as a counterclaim that they had purchased the seals upon the faith of certain warranties and representations made by the plaintiff’s salesman when he was endeavoring to make the first sale, that said'seals would be air-tight and properly keep the contents of the packages upon which they were used, but they were not air-tight and in consequence thereof the contents of many packages spoiled. There was evidence that nearly all of the caps which became loosened did so because of pressure from within, resulting from improper preparation of the preserves. Evidence examined, and
    Held, insufficient to establish that the second purchase was made or induced by the statements and representations made by the plaintiff’s salesman at the time of the first sale, or that the defendants were induced to make the second purchase either by actual misrepresentation or by express "Warranty.
    Mo claim can be asserted upon an implied warranty arising from the fact that the plaintiff is a manufacturer and knew the purpose for which the seals were to be used, as the goods were known and ordered by the trade name. (Pers. Prop. Law, § 96, subd. 4.)
    As the plaintiff did not move for the direction of a verdict, but only for the dismissal of the defendants’ counterclaim, the Appellate Division cannot dispose of the case by directing the entry of judgment for plaintiff.
    Appeal by the plaintiff, Sure Seal Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of March, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of March, 1914, denying plaintiff’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review an order herein denying a motion to set aside the verdict and to set aside and cancel the judgment.
    
      Alfred T. Davison [Clarence E. Thornall and James K. Foster with him on the brief], for the appellant.
    
      Benjamin Beass, for the respondents.
   Scott, J.:

The action is for a balance of account due for goods sold and delivered consisting of what are termed “'Sure Seal Caps,” used for sealing glass packages containing jams, preserves and other condiments. The sale, delivery and agreed price are admitted by the answer. The defendants relied upon two counterclaims, in which it was asserted that they had purchased said seals upon the faith of certain warranties and representations on the part of plaintiff that said seals would be air-tight and keep the contents of the packages upon which they were used in a healthy, marketable and merchantable condition, whereas in fact said seals were not air-tight and in consequence thereof1 the contents of many packages became spoiled to defendants’ damage. The jury awarded the defendants damages upon the counterclaim.

The plaintiff is the manufacturer of the said “ Sure Seal Caps ” which it sells under that name, and of which it manufactures several varieties, containing, however, the same general characteristics.

Defendants are manufacturers of fruit preserves at Wilmington, Del.

It appears that in January, 1912, defendants had on hand some 7,200 jars of preserves which had spoiled in consequence, as it is said, of defects in the caps or seals which they had been using. This fact came to the knowledge of one of plaintiff’s salesmen who advised and induced defendants to recook the spoiled preserves and to pack them in jars sealed with “ Sure Seal Caps.” Defendants thereupon purchased 7,200 of the caps, which they used to seal up the recooked preserves.' It is not claimed that any defect was found in this batch of caps. On April 30, 1912, defendants ordered 300,000 of the same caps to be delivered, as ordered, during the ensuing year. On this order 194,740 caps were delivered and used by defendants in putting up their product. It is alleged that many of these caps were found not to be air-tight, in consequence of which large quantities of the preserves were spoiled, and there is no doubt that many of the caps failed to remain tightly on the jars upon which they were used. The cause of this failure was a sharply contested question of fact on the trial.

The representations alleged by defendants are stated to have been made in or about the month of February, 1912, the reference being to the statements and representations made by plaintiff’s salesman when he was endeavoring to induce defendants to buy the 7,200 caps. These statements and representations defendants seek so to extend as to apply to the 194,740 caps subsequently sold and delivered, claiming that that sale, as well as the earlier one, was induced and entered upon by defendants in sole reliance upon the salesman’s representations. It is quite clear that this construction is unsupported by the evidence. It is doubtless true that plaintiff’s salesman would have been glad in February to have sold to defendants not only the caps required at once, but all that might be required during the year, but defendant Charles C. Loeber repeatedly and explicitly testifies that the order given in February was a trial order, and that he said to the salesman that he would rather be shown the excellence of the caps than take the salesman’s word for it. So that it stands proven by defendants’ own testimony that reliance was placed on the salesman’s representations only so far as concerned the first order of 7,200 caps, as to which no damages are claimed. Defendants, therefore, signally failed in the attempt to show that they were induced to buy the 300,000 caps by actual misrepresentation or express warranty. Nor can a claim be asserted upon an implied warranty arising from the fact that plaintiff is a manufacturer and knew the purpose for which the seals were to be used. The goods ordered were known by the trade name of Sure Seal Caps,” and were ordered by that name. In such a case there is no implied warranty as to the fitness of the goods for any particular purpose. (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 96, subd. 4, added by Laws of 1911, chap. 571.) Furthermore the evidence is very convincing that the failure of the caps was due to faulty preparation of the preserves and not to any defect in the caps themselves. The caps ordered by defendants were those designated on plaintiff’s catalogue and price lists as “ Regular Caps, size bio. 63.” Plaintiff’s price list, which was sent to defendants before the second order was given and which is referred to in the order, shows that plaintiff manufactured two styles of caps of size 63 known as ‘ 1 Regular ” and the other known as “Process.”

As to the Regular caps the price list stated as follows: “This cap is used in sealing pickles, preserves, honey, syrup and other condiments, which do not generate pressure.”

And as to the Process caps it stated as follows: “ This cap is designed to be used on all condiments which are processed, or which generate pressure after being sealed.”

So, also, plaintiff’s catalogue, which was sent to defendants some time before the 300,000 order was given, stated as follows: “ The Regular Cap is for the sealing of pickles, preserves, condiments, paints, varnishes, metal polishes, and such other articles which do not generate pressure. This cap is used with glassware made to the Phoenix Standard.

“ The Process Cap is for the sealing of higher grade goods for foreign shipment and the sterilization of which is desirable; goods which generate pressure or which must be heated after sealing. This cap differs only from the regular in that it is made in two pieces, one of which (the band) must be stripped off in order to open the package. The same glassware is used with this Process Cap as with the Regular Cap.”

Defendants, therefore, had the choice when ordering to select caps proof against pressure or caps not so proof, and they deliberately chose the latter, doubtless because preserves, if properly prepared, should not ferment and thus generate pressure from within. The evidence, which it is unnecessary to discuss in detail, shows very convincingly that all or nearly all of. the caps which became loosened did so because of pressure from within due to fermentation and that this resulted from improper preparation of the preserves. There seems to be no escape from the conclusion that defendants deliberately ordered caps which were expressly stated not to be proof against pressure from within and .unsuitable for packing goods in which fermentation might be expected to take place, and then, by negligent or -unskillful preparation, filled the jars with preservés which did ferment, and that it was this fermentation which caused the failure of the caps.

In any aspect of the case, therefore, the verdict against the plaintiff was unjustified by the evidence and the motion to dismiss the counterclaim should have prevailed.

If plaintiff had moved for the direction of a verdict as well as the dismissal of the counterclaim we might now dispose of the case by directing the entry of the proper judgment. No such motion was made, however, and we have nothing to review in that regard.

The judgment and orders appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

Clarke, P. J., Dowling, Smith and Page, JJ., concurred.

Judgment and orders reversed, new trial ordered, costs to appellant to abide event.  