
    Albert P. Miller and One, Respondents, v. Frederick Zander, Appellant. (Actions Nos. 1 and 2.)
    (Supreme Court, Erie Special Term,
    May, 1914.)
    Contracts — guaranty on sale of automobile — breach of warranty— pleading — action to recover balance of purchase price.
    A guaranty on the sale of an automobile that it will be free from defects for a year necessarily carries with it a warranty that the machine at the time of sale is of sufficiently good workmanship and materials to run a year under ordinary and proper use without showing defects; and the seller is liable for any defect that may have appeared during the time limit not due to the buyer’s, improper use of the ear.
    In case of the breach of the warranty, the buyer’s measure of damages is the difference between the actual value of the car and its value at the time of sale had it been as represented.
    Within the time limit of the guaranty but after the car had been driven about 3,500 miles the frame broke during ordinary use, the radiator leaked and the brakes did not work properly, but the buyer without attempting to rescind the sale, on discovering the defects, demanded that the car be made right and allowed the seller to make repairs, but becoming dissatisfied therewith offered to return the car. In an action to recover the balance of the purchase price, defendant as a defense and counterclaim pleaded breach of warranty, damages and rescission of the sale. Held, reversing on principles applicable to rescission a judgment in favor of plaintiff for the full amount claimed, that upon discovery of the defects in the car two courses were open to defendant; he could return the car and plead rescission of the contract as a defense and counterclaim for the amount already paid on the purchase price, or he could keep the car and counterclaim for damages.
    Where defendant relied primarily on the defense of rescission but gave evidence of an attempted rescission at the trial and refused to elect to stand on his counterclaim for damages, the trial court was justified in disregarding the latter branch of the case and deciding the case as it did.
    Appeal from a judgment of the City Court of Buffalo.
    Wilcox & Van Allen, for appellant.
    Riordan & Batt, for respondents.
   Pound, J.

Plaintiffs sue on two promissory notes made by defendant, one for $400 reduced to $200 by part payment thereon, and one for $500, which were given in part payment for a “ Midland ” automobile, purchased from the plaintiffs by defendant on or about the 24th day of June, 1913. The purchase price of the automobile was $1,685. Defendant turned in an old car for $285, and gave his proniissory notes for the balance, on which he has paid $200. Defendant pleads, as a“ defense and counterclaim, ’ ’ breach of warranty, damages and rescission of the sale, and demands judgment for the purchase price of the car. From judgment in favor of the plaintiffs for the full amount claimed by them, defendant appeals.

The memorandum of sale contains the words “ car guaranteed fully for one year. ’ ’ Within the year, but after the car had been driven for about 3,500 miles, the frame broke, the radiator leaked and the brakes did not work properly. Plaintiffs undertook to repair the car but defendant became dissatisfied, offered to return the car and refused to make further payments on the purchase price.

Plaintiffs urge that the words guaranteed fully for one year ” imply merely a contract to keep the car in repair for one year, while defendant seeks to give these words the force of an express warranty against imperfect material and workmanship or defective parts.

In order to establish a right to rescind the sale, defendant must establish a breach of warranty, and not breach of a contract to keep in repair merely. Lamson Store Service Co. v. Conyngham, 11 Misc. Rep. 428.

Blackstone says (3 Comm. 165): “ the warranty can only reach the things in being at the time of the warranty made, and not to the things in futuro; as that a horse is sound at the buying of him, not that he will be sound two years hence.” But it is now good law that one may bind himself by contract for the happening of any future event and a ‘ warranty ” or guaranty ” of an automobile for a year is a contract to be answerable for any defect that may occur during that time. Williston Sales, § 212.

A guaranty that the automobile will be free from defects for a year carries'with it necessarily a contract of warranty that the automobile is at the time of the sale of sufficiently good workmanship and materials to run a year under ordinary and proper use without manifesting defects.

Plaintiffs, by their guaranty for one year, agreed, not merely to make repairs, but that the automobile was so well constructed as to be capable of standing proper use for one year, ordinary wear and tear excepted, and that they would become answerable for any defect that might occur during that time not due to improper use of the ear by defendant.

The measure of damages in such a case is the difference between the actual value of the car and the value which it would have had at the time of the sale if it had been as represented. Miller v. Patch Mfg. Co., 101 App. Div. 22.

The evidence is undisputed that the break in the frame occurred during ordinary use. Defendant did not immediately attempt to rescind the sale when he discovered the defects, but demanded that the car be made right and allowed plaintiffs to make repairs thereon.

In such cases the injured party must act promptly, as soon as he discovers the supposed breach of warranty. If, knowing that the car was not what he had a right to expect, he still retained it, he is precluded from asserting a right to withdraw from the transaction altogether, although he is not deprived of his damages. Williston Sales, § 611.

Two courses were open to defendant when he discovered the defects in the car and decided to rely on an express warranty. He could return the car and plead the rescission of the contract as a defense to the action for its price and counterclaim for the amount already paid, or he could keep the car and counterclaim for damages. Sales Act, Laws of 1911, chap. 571, § 150.

But these defenses are inconsistent with each other and cannot both be sustained in the same action, and, as it appears, rescission cannot be maintained in this action because defendant did-not act promptly. Norton v. Dreyfuss, 106 N. Y. 95.

The defendant relies primarily on the defense of rescission, and as he gave evidence of an attempted rescission in the court below, and refused to elect to stand on his counterclaim for damages, the learned court was justified in disregarding the latter branch of the case and deciding the case on the principles applicable to rescission.

Judgment affirmed, with costs.  