Decided February 29, Lemay for plaintiff Messrs. Vogel for defendant Messrs. This action arises out of the sale by plaintiff to defendant of a new Chevrolet automobile.
This action arises out of the sale by plaintiff to defendant of a new Chevrolet automobile. Within a short distance after leaving the showroom the vehicle became almost completely inoperable by reason of mechanical failure.
Defendant the same day notified plaintiff that he cancelled the sale and simultaneously stopped payment on the check he had tendered in payment of the balance of the purchase price. Plaintiff sues on the check and the purchase order for the balance of the purchase price plus incidental damages and defendant counterclaims for the return of his deposit and incidental damages.
The facts are not complex nor do they present any serious dispute. On February 2, defendant signed a form purchase order for a new Chevrolet Biscayne Sedan which was represented to him to be a brand-new car that would operate perfectly. Delivery was made to defendant's wife during the early evening hours of Friday, February 10,at which time she was handed the keys and the factory package of printed material, including the manual and the manufacturer-dealer's warranty, none of which she or her husband ever read before or after the sale was made, nor were the details thereof specifically explained to or agreed to by defendant.
When about halfway home the car could not be driven in "drive" gear at all, and defendant's wife was obliged to then propel the vehicle in "low-low" gear at a rate of about five to ten miles per hour, its then maximum speed. In great distress, defendant's wife was fearful of completing the journey to her home and called her husband, who thereupon drove the car in "low-low" gear about seven blocks to his home.
Defendant, considerably upset by this turn of events, thereupon immediately called his bank which was open this Friday eveningstopped payment on the check and called plaintiff to notify them that they had sold him a "lemon," that he had stopped payment on the check and that the sale was cancelled.
The next day plaintiff sent a wrecker to defendant's home, brought the vehicle to its repair shop and after inspection determined that the transmission was defective. Plaintiff's expert testified that the car would not move, that there was no power in the transmission and in that condition the car could not move.
Plaintiff replaced the transmission with another one removed from a vehicle then on plaintiff's showroom floor, notifying defendant thereafter of what had been done. Defendant refused to take delivery of the vehicle as repaired and reasserted his cancellation of the sale.
Plaintiff has since kept the vehicle in storage at his place of business. Within a short period following these occurrences plaintiff and defendant began negotiations for a new Chevrolet, but these fell through when plaintiff insisted that a new deal could only be made by giving defendant credit for the previously ordered Chevrolet.
This defendant refused to do because he considered the prior transaction as cancelled. The issues in this case present problems for disposition under the Uniform Commercial Code Code.
The Code rejects the old court "lump concept" or "title" approach in favor of the "narrow issue" access to sales problems. It provides that the act shall be liberally construed and applied to promote its underlying purposes and policies.
Further, that unless displaced by the particular provisions of the Code, the principles of law and equity or other validating or invalidating cause shall supplement its provisions, N.
Plaintiff-seller contends that all rights and remedies in this case are governed and limited by the sales contract. Paragraph 9 in fine print on the back of the order form states:99 N.J.
Super. () A.2d ZABRISKIE CHEVROLET, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. ALFRED J. SMITH, DEFENDANT. Superior Court. See Zabriskie Chevrolet, Inc.
v. Smith, A.2d (NJ ), (seller’s attempted replacement of a defective transmission in a new car with a transmission of unknown lineage was held an inadequate.
Joc Oil USA Inc v. Consolidated Edison Co NY Inc. Uploaded by Thalia Sanders. Related Interests compare Zabriskie Chevrolet v. Smith, 99 timberdesignmag.com , A.2d ). It also is no surprise then that the afore-mentioned decisional history is a reflection of the mainstream of scholarly commentary on the subject (e.g., Report of .
zabriskie chevrolet, inc., a corporation of the state of new jersey, plaintiff, v.
alfred j. smith, defendant. 99 n.j. super. () a.2d zabriskie chevrolet, inc., a corporation of the state of new jersey, plaintiff, v.
alfred j. smith, defendant. The Nations Law Firm. 50 Years of Service to the Public, the Trial Bar, and the Profession.