Zabriskie Chevrolet, Inc. v. Smith

On February 2, 1967, defendant signed a purchase order for a brand new Chevrolet Sedan. Defendant paid a $124 deposit. On February 9, 1967, defendant tendered a check to plaintiff for the balance of the purchase price and licensing ($2,069.50). The next day, defendant’s wife accepted delivery of the sedan and drove the car home. During the drive home, the car stalled every time it was stopped and, approximately half-way into the trip, could no longer be driven in “drive” but in “low-low” gear. Defendant’s wife called defendant who then drove the car the remaining seven blocks home. Defendant immediately called his bank to stop payment on the check and notified the plaintiff about the car and check. The plaintiff sent a tow truck to pick up the car and determined the transmission was defective. Plaintiff replaced the transmission with one from a car in its showroom and notified the defendant. Defendant refused to accept the car and asserted the sale was cancelled. The parties then began negotiating for the sale of a different car, but defendant refused to continue the deal because plaintiff insisted that defendant be given credit for the defective sedan.