
    Dietterich v. Bartunek.
    (Decided February 10, 1930.)
    
      Mr. Harry B. Scobie, for plaintiff in error.
    
      Mr. G. V. Hull, for defendant in error.
   Vickery, P. J.

This cause comes into this court on a petition in error to the municipal court of the city of Cleveland, the purpose being to reverse a judgment that was rendered against the plaintiff in error, Irvin G-. Dietterich, who was plaintiff below, in favor of the defendant in error, Clarence J. Bartunek, defendant below.

From the statement of claim, the arguments of counsel, and the briefs, we learn that the defendant below purchased from the plaintiff below a radio for which he agreed to pay the sum of $650, that at times prior to the events which led up to this transaction he had paid on said radio the sum of $200, and that after he had taken possession of the radio, and it had been tested and tried, he gave to the maker or vendor of the radio, to wit, the plaintiff in the court below, plaintiff in error here, a check for the balance of the purchase price in the amount of $450. This seems to have been on a Saturday, and on the following Monday, when Dietterich presented the' check to the bank, payment on the check had been stopped, and subsequently a suit was brought by Dietterich to recover on this check from the maker Bartunek, and the court below found for the defendant and dismissed the proceedings of the plaintiff and entered judgment against him for the costs. It is to reverse that judgment that error is prosecuted here. •

As already stated, we have gone over this record, heard the arguments of counsel, and have familiarized ourselves with the briefs, and must necessarily come to the conclusion that the court below was wrong and that the judgment of the court must be reversed; and, going further, we must enter up a judgment for the full amount of the plaintiff’s claim against the defendant below.

The basis for our action is that it is admitted that the purchase price of this radio was $650, and that only $200 was paid. It is admitted that the radio was delivered and that the defendant always had and now has the radio, and, so far as it appears in this record, is using it and apparently it is giving satisfaction. Under the circumstances, we do not see how the court below could have rendered a judgment for the defendant, for it must be remembered that there has been no rescission or attempted rescission of the contract. It is true it is claimed that the seller of this radio stated that foreign stations could be reached over it, and it is alleged somewhere in this case that such was not the fact. Whether that be true or not does not matter very much. I take it that if the seller, under the rules of high-pressure salesmanship, had said that they could get some people on Mars, it would hardly be presumed that a buyer was to believe all the dealer’s talk. When a person says that you can reach Mexico or foreign countries with this radio, it is not a representation upon which persons have the right to rely, nor is it actionable if one cannot reach those places. But, if the argument of counsel is of any avail in this ease, defendant did succeed in reaching stations in Mexico. There are many things that are likely to interfere with the reaching of stations far away, such as the interference of other stations, and the condition of the air which results in static, and there are various other things that might militate against the getting of foreign stations, or even stations in our own country, perhaps nearby stations, so that these are hardly representations which would be actionable.

But even admitting that those representations were actionable, and admitting that there was a breach of warranty because this radio, as is claimed, will not reach foreign stations, yet, as already stated, there was no rescission of the contract, and the above would amount to nothing more than a breach of warranty, and the only remedy the defendant would have under the record as it appears in this case would be counterclaiming for damages for breach of warranty, which would be a matter of pleading and proof of the damages resulting to the purchaser of the radio by.reason of the breach of warranty.

Now there is nothing in the statement of defense that would permit this sort of evidence, nor is there the slightest bit of evidence to show that the owner of the radio was damaged in the slightest degree, nor was any such evidence offered, and it would not necessarily follow that, because he could not get the jazz from the city of Mexico, or from Rio de Janeiro, he was particularly damaged by being relegated to the jazz of nearby stations. In other words, even admitting that the representations were of such a character as if not fulfilled would constitute a breach of warranty, and admitting that the radio would not comply with such warranties, there is no evidence in this- record upon which a court could in any wise render a judgment for damages on a counterclaim. So, under the circumstances, inasmuch as the defendant had the radio, and was using it, and the purchase price was admitted to be as stated, and the balance that was due was the amount that was sued for, it is difficult to understand how the court below could have rendered a judgment for the defendant in the action below. We have no hesitancy in saying that such judgment was wrong, and that the court committed error in rendering such judgment, and, inasmuch as the amount is admitted, and it is based upon a written obligation which is before the court, we feel it our duty to render such a judgment as the court below should have rendered, and that is a judgment for the plaintiff in error, who was plaintiff below, for the full amount of the check, with interest at 6 per cent, from the time of the giving of the check down to the present time.

The entry will be: Judgment reversed, and final judgment for the plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Sullivan and Levine, JJ., concur.  