Western Tire Co. v. Furstman

FOURT, J. This is an appeal from a judgment for money on a complaint stated in common counts.

Plaintiff herein filed a complaint in Los Angeles on August 3, 1965, for money. Count 1 set forth that on July 14, 1965, defendant was indebted to plaintiff on an open book account, for a balance due for merchandise in the sum of $8,192.23; count 2 set forth that there was an account stated between the [447]parties for the same amount as above stated; count 3 set forth that on July 14, 1965, defendant became indebted to plaintiff in the sum of $8,192.23 for merchandise furnished to defendant at his special request and that the reasonable value of the same was as stated. Defendant answered the complaint in effect by denying that defendant was so indebted to the plaintiff and alleged certain affirmative defenses: (1) that the merchandise was subject to an agreement previously made between the parties to the effect that the deliveries were on a thirty-day open account and defective merchandise was to be .returnable and (2) that the agreed purchase price was not due - on the date the action was filed. Defendant also filed a counterclaim wherein he alleged that plaintiff had represented and warranted that the merchandise would be free from any defects and that plaintiff would accept the return of any defective merchandise and credit defendant accordingly; that plaintiff honored its warranty agreement until July 13, 1965, and since that date has refused to accept any defective merchandise back from defendant and has breached the warranty agreement. That because of plaintiff’s breach defendant has had to replace defective merchandise to his customers to his damage in the sum of $8,000.

In the non jury trial the court found for plaintiff partially and gave judgment for $6,942 plus interest from July 14, 1965, plus costs.

It appears that plaintiff was a wholesaler of automobile tires branded as “second,” selling to other tire dealers. Between January 1, 1965, and July 14, 1965, defendant purchased from plaintiff 648 automobile tires for which defendant agreed to pay the sum of about $12.50 per tire. The terms of the sale provided that tires which were defective because of faulty workmanship or materials were returnable, and plaintiff accepted the return of all tires in which defects were discovered prior to mounting and use. Of the 648 tires sold, 548 were good and merchantable and both parties stipulated that 100 tires could be returned to plaintiff by defendant. Defendant did not pay for any of the 548 tires which were good and merchantable and judgment was rendered accordingly.