
    Mitchell Motor Company of New York, Appellant, v. John F. Chandler, Respondent.
    First Department,
    July 9, 1915.
    Sale — warranty limited by writing — evidence—verbal warranty.
    Action to recover for work, labor and services expended in repairing the defendant’s automobile. The written contract of sale required the plaintiff to replace, free of cost, all defective parts and make good all defective workmanship, but it was expressly agreed that there were no promises or undertaking not clearly specified and that the purchaser understood that the selling agent had no power to make warranties other than those set forth.
    
      Held, that it was reversible error to allow the defendant to prove a verbal warranty alleged to have been made by the selling agent.
    
      Appeal by the plaintiff, Mitchell Motor Company of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of February, 1915, upon the verdict of a jury in plaintiff’s favor for twenty-one dollars and eighty cents, which sum was offset against the defendant’s costs.
    
      Henry Hoelljes, attorney, for the appellant.
    
      Joseph G. Williamson, Jr., of counsel [William W. Butcher, attorney], for the respondent.
   Clarke, J.:

The action was to recover $120.09 for work, labor and services and the furnishing of certain materials in connection therewith for the defendant at his request upon an automo: bile belonging to the defendant.

The answer for a separate defense alleges that the plaintiff sold the defendant a certain automobile for $1,500, and as a part of the condition of sale plaintiff warranted in writing the said automobile for one year from the date of shipment, which said warranty provided for the replacement of defective parts and the making good of defective workmanship, free . of all except transportation charges; that the automobile and its parts were defective within the warranty, and said certain defective parts were replaced and repairs made by the plaintiff which the defendant believes are the same referred to in the plaintiff’s complaint, and if such is the case the plaintiff has been paid for the same in the consideration paid in the original contract. The contract for the sale of the automobile in question was in writing and signed by both parties, and contained the following provision: It is understood and agreed that there are no promises, understandings or agreements of any kind pertaining to this order that are not clearly specified on it. This car is sold under the warranty of the Mitchell-Lewis Motor Co., a copy of which is printed in their catalogue.”

The plaintiff, a New York corporation, was apparently the selling agent of the Mitchell-Lewis Motor Company, which was located at Racine, Wis. The warranty referred to in the contract of the Mitchell-Lewis Motor Company provides as follows: “We warrant the motor vehicles manufactured by us for one year after the date of shipment, this warranty being limited to the furnishing at our factory of such parts of the motor vehicle as shall, under normal use and service, appear to us to have been defective in material or workmanship.

1 ‘ This warranty is limited to the shipment to the purchaser, without charge, except for transportation, of the part or parts intended to replace the part or parts claimed to have been defective, and which, upon their return to us at our factory for inspection, we shall have determined were defective, and provided the transportation charges for the parts so returned have been prepaid. * * * The purchaser understands and agrees that no warranty of the motor vehicle is made or authorized to be made by the Company, other than that hereinabove set forth.”

Notwithstanding that the contract was in writing and that the defendant in his answer especially averred the warranty in writing, the defendant was permitted to prove, over objection and exception, conversations held prior to the execution of the written contract and a verbal guaranty, although the contract expressly provided: “It is understood and agreed that there are no promises, understandings or agreements of any kind pertaining to this order that are not clearly specified on it.” Under the written agreement the warranty was limited to the furnishing of such parts of the motor vehicle “ as shall under normal use and service appear to us to have been defective in material or workmanship.” It was in evidence that the plaintiff renewed a defective arm to the frame for which it did not charge defendant anything, accepting that defect as being within the warranty. Twenty-one dollars and eighty cents of the bill was made up of the expense of sending a man to White Plains and for grease and gasoline furnished. The court directed a verdict for the plaintiff for that amount. Of the rest of the hill eighty-one dollars and fifty-six cents was the cost of labor. There was no evidence to sustain the defense that the amount of the bills proven were for defective parts within the warranty. Improper evidence was received, and the case was submitted by the court to the jury upon an erroneous theory.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.  