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Procedural Posture

Defendant seller appealed from an order of the superior Court of the City and County of San Francisco (California), which denied its motion for a new trial, in plaintiff buyer’s action for breach of an express warranty in the sale of goods.

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Plaintiff buyer brought an action against defendant seller to recover damages for a breach of an express warranty in the sale of goods. The trial court entered a jury verdict in favor of plaintiff, and defendant appealed from the trial court’s denial of a motion for new trial. The court affirmed the order of the trial court, holding that the court correctly instructed the jury that acceptance by plaintiff and payment of the purchase price did not relieve defendant from liability under its guaranty, and that the evidence sufficiently sustained the verdict of the jury. The court held that acceptance and use of the goods, even after knowledge of the defect, did not prevent a resort to an action upon a warranty. The warranty survived the acceptance, and plaintiff did not need to return the goods, or offer to do so, or give any notice to defendant to sue upon the warranty.


The court affirmed the decision of the trial court, denying defendant seller’s motion for new trial, holding that plaintiff buyer’s acceptance of the goods from defendant, with knowledge of a defect in quality, did not waive its right to recover for damages for a breach of an express warranty of quality.