Callahan v. Gorson

Citations

• 65 Pa. Super. 329
• 1916 Pa. Super. LEXIS 77

Syllabus

<p>Contract — Sale—Guaranty—Warranty—Form of action.</p> <p>In an action of assumpsit where it appears that the defendant sold to the plaintiff an automobile, which was stated to be of a particular model, in use less than a year, and in good condition, and is “guaranteed for a year,” and the plaintiff pays and delivers over the whole consideration, which was cash and another automobile owned by plaintiff, the plaintiff is entitled to recover back the whole consideration where it is shown that the car was not of the model stated, that it had been used for two years, and that while in use for two weeks it had developed numerous defects such as rendered it unserviceable and made necessary frequent repairs.</p> <p>The action brought by the plaintiff was not in deceit, but was properly in assumpsit since it set up a warranty and alleged a breach.</p> <p>In such a case it is not necessary for the plaintiff to demand a return of the car which she had delivered to the defendant, where it is shown by the uncontradicted evidence that the defendant sold the car within three or four days after he received it.</p>