Before Hastings, Chief Judge and Schnackenberg and Knoch, Circuit Judges.
Plaintiffs'*fn* complaint, in four counts, prayed $10,500 damages resulting from alleged false statements on which plaintiff relied, breach of contract, and breach of express and implied warranties. All four counts incorporate the same basic statements of facts.
Plaintiffs alleged that defendant's representative, Joseph Berg, told plaintiff Philip L. Zuckerman that defendant had purchased, from The White Motor Company, one lot of surplus Weatherhead fittings and parts, which consisted of all of the items in a printed list published by White, August 9, 1955, known to the trade as List No. 8955. Berg resold this lot to plaintiffs for $7,500 and sent them a copy of the List. The fittings delivered to plaintiffs comprised only 30% of the List. Plaintiffs estimated the value of the undelivered items at $5,250 and their lost profits on resale at an additional $5,250.
Defendant asserts that it sold plaintiffs precisely what it had bought from White, i. e. one lot of some 17,900 pounds of fittings taken from the said List, and acquired by the pound, but not the total number of items on that List.
The jury returned a verdict finding for plaintiffs and assessing damages at $7,400. Defendant's motions for directed verdict in its favor at the close of plaintiffs' case and at the conclusion of all the evidence, and for judgment notwithstanding the verdict, and, in the alternative, for a new trial, were all denied. This appeal followed.
Defendant lists the contested issues as:
Whether there was any evidence whatever introduced in behalf of the plaintiff to justify the verdict finding the issues against the defendant by the plaintiffs and assessing damages against it.
Whether the merchandise purchased by plaintiffs was subject to their inspection, and whether they had a full opportunity for inspecting the merchandise so as to bar them from any claim for damages against the defendant.
Whether the damages are excessive.
to which plaintiffs add ...