The opinion of the court was delivered by: STEWART
This is a suit to recover a sum allegedly due and owing on a sales contract entered into between the plaintiff's assignor and the defendants. This case was tried on April 4, 1952 by the Court sitting without a jury, and on all the evidence we make the following findings of fact:
1. In the early part of 1948, Leslie Electric Company, Inc., (hereinafter referred to as Leslie), a corporation organized under the laws of New York State and having its principal place of business in Brooklyn, was engaged in the manufacture and sale of electric toasters and other electrical products.
2. In the early part of 1948, Leslie was marketing an electric toaster known as 'Press-To-Magic' Pop-Up Toaster and had advertised this merchandise in trade magazines, in circulars transmitted to the electric appliance dealers and at the Chicago Housewares Convention in January, 1948.
3. This advertising matter, used and circulated by Leslie, stressed as one of the advantages of this brand a 'new, cleverly designed timing device with a positive action adjusting lever to give perfect toast every time.'
5. The defendant, Martin Sufrin, attended a housewares convention in Chicago in January, 1948, and the 'Ress-To-Magic' toaster was on display there. He read about the toaster in various advertisements, including the advertisement published in the January issue of the trade magazine 'Retailing Home Furnishing'. In addition, he received a circular from Leslie describing in detail the features and sales advantages of the toaster.
6. In February, 1948, pursuant to an inquiry by Isadore and Martin Sufrin, Leslie further advised them of the merits of this toaster and in a letter to them stated that 'this toaster features a perfectly balanced timing device operated by a positive action lever'.
7. Relying upon the aforesaid representations and warranties of Leslie with respect to the timing features of this toaster, the defendants, beginning in February, 1948, placed orders for a total number of 1,453 toasters as follows:
Date Toasters Amount Unit Cost
//-- //////-- ////-- ///////--
Feb. 19, 1948 150 $ 1651.50 $ 11.01
Feb. 20, 1948 1 11.01 11.01
Feb. 27, 1948 504 5549.04 11.01
Feb. 27, 1948 498 5482.98 11.01
Mar. 22, 1948 300 3303.00 11.01
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