
    David Isaacs, Plaintiff, v. John Wanamaker, Defendant.
    (Supreme Court, Niagara Trial Term,
    February, 1911.)
    Pleading — Evidence admissible under the pleadings — Evidence admissible in general — Proof of executory contract not admissible under allegation of sale.
    Sales — Remedies of purchaser — Rescission — Breach of warranty.
    One who has bought goods with a warranty may not return them and rescind the sale upon breach of the warranty.
    Where a sale with warranty is alleged in a complaint, proof of an executory contract of sale is not admissible thereunder.
    
      Action to recover the purchase price' of an automobile. Motion for new trial on judge’s minutes, after verdict for the plaintiff, under section 999, Code of Civil Procedure.
    A. T. Hopkins, for the motion.
    Morris Cohn,. Jr., opposed.
   Pound, J.

It seems .to be the law of Hew York and of this case that a buyer who has bought with a warranty may not return his purchase and rescind the sale upon warranty broken.

While in many other jurisdictions a buyer who has bought with a warranty may rescind the sale upon warranty broken, and the proposed uniform S'ale of Goods Act gives this remedy (Williston on Sales, §§ 603, 608) and the question has, in a way, been kept open by the Court of Appeals (Kupfer & Co. v. Pellman, 67 Misc. Rep. 149, 151), the rule has often been so stated and I fail to see any other theory on which the judgment herein was reversed in that court. Brigg v. Hilton, 99 N. Y. 517; Fairbanks Canning Co. v. Metzger, 118 id. 260, 269; Isaacs v. Wanamaker, 189 id. 122.

Where the thing bought, when delivered, is perfectly worthless, the buyer may tender it back and recover the purchase money. Stone v. Frost, 61 N. Y. 614.

And, if there is a contract to sell, instead of a bargain and sale, and a delivery pursuant to the contract, the buyer may reject for breach of warranty and recover back the purchase .price. Voorhees v. Earl, 2 Hill, 288, 291.

But, even if the proofs in this case tended to show an executory contract to sell and deliver an automobile to be put into good repair and good running condition, which is doubtful, the complaint alleges an executed sale with warranties and representations as to the present condition of the automobile.

With the distinction above indicated in mind, there would be fatal variance between pleadings and proof, if the case were submitted on the theory of an executory sale.

The case was submitted to the jury on the theory of failure of consideration and they found for the plaintiff. The weight of evidence is with the defendant that there was no such total failure of consideration as to deprive him of the right to litigate damages.

In Alsing Co. v. New England Quartz Co., 66 App. Div. 473; affd., 174 N. Y. 536, cited by plaintiff, the question of damages for breach of express warranty was litigated and evidence was given that the machine was “ useless and could not be set right by any system of repairs.” Ho such evidence was before the jury in this case, and the weight of evidence was that the automobile in suit could be set as right as it was when plaintiff bought it for no large amount, and then, while it would not, perhaps, be worth the purchase price, $1,200, it would have a substantial value as an automobile of the period of 1904.

Motion for new trial must-be granted upon defendant’s exceptions and on the ground that the verdict was contrary to the evidence and contrary to the law, with costs to abide event.

Motion granted.  