Berry v. Miami Cycle & Manufacturing Co.

RICHARDS, J.

This is an appeal by the plaintiff from a judgment in favor of the defendant in an action wherein the plaintiff sought to recover damages from the defendant for an alleged breach of the warranties of an agreement entered into between the parties, by the terms of which the plaintiff and one F. M. Hodge were made the sole and exclusive agents of the defendant for the sale of a certain type of motorcycle, known as Flying Merkle motorcycle, throughout certain portions of southern California, and by which said agreement, according to the plaintiff’s contention, the defendant warranted said motorcycles to be free

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from imperfections in the nature of latent defects arising from the process of manufacture, but that a large number of said motorcycles were defective in these respects, and for that reason unmerchantable, to the damage of the plaintiff and said Hodge in a certain sum. Hodge is alleged to have conveyed his right of recovery to the plaintiff prior to the inception of the action. The defendant in its answer denied the averments of the plaintiff’s complaint as to any breach of warranty on, it® part and as to any damage resulting therefrom, and by way of cross-complaint sought to recover from the plaintiff the sum of $723.71 upon a book account for motorcycles and motorcycle parts sold to plaintiff and for which he had failed and refused to pay.

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Upon the trial of the action evidence

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was presented by the respective parties which covers 710 pages of the reporter’s transcript on appeal. The trial court from this evidence found against the plaintiff’s claim as to the defendant’s breach of its warranties in the respects indicated, and expressly found that the motorcycles delivered to the plaintiff were in every particular free from imperfections in material and workmanship, and were in serviceable working order at the time of their said delivery, and that with the exception of four of said motorcycles, they were free from the specific latent defects specified by the plaintiff as existing in them, and as to these defective machines their depreciation in value by reason of the existence of said latent defects amounted altogether to the sum of $18.50. The court further found that the defendant was entitled to recover from the plaintiff upon its cross-complaint in the sum of $723.71. It accordingly rendered judgment against the plaintiff for the difference in these two sums, namely, the sum of $705.21. It is from this judgment that the plaintiff has prosecuted the present appeal.