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Barni v. Kutner

Superior Court of Delaware, New Castle County

October 26, 1950

Barni
v.
Kutner

Page 802

[Copyrighted Material Omitted]

Page 803

Joseph Donald Craven, of Wilmington, for plaintiffs.

Clement C. Wood, of the firm of Hering, Morris, James & Hitchens, of Wilmington, for defendant.

CAREY, Justice.

The pointts raised can most conveniently be considered in the order followed in the briefs. For the purpose of these motions, all allegations in the complaints must be accepted as true.

The Barni Complaint

(a) The breach of warranty count

To this count defendant raises three objections: (1) lack of [45 Del. 556] privity of contract between Mrs. Barni and the defendant; (2) failure to aver consideration for the warranty; (3) failure to give due and proper notice of the breach.

The first objection applies, of course, only to Lorraine Y. Barni. The complaint clearly shows that she was not a party to the contract, but that the dealings were entirely between Mr. Barni and the defendant. No Delaware decision expressly answers this question. The extensive discussion in Gorman v. Murphy Diesel Co., 3 Terry 149, 29 A.2d 145, deals only with liability for negligence of a manufacturer or dealer to a third person and points out that lack of privity is no defense in a negligence case under certain conditions.

In an action ex contractu, although there are authorities to the contrary, the majority rule requires privity

Page 804

Chanin v. Chevrolet Motor Co., 7 Cir., 89 F.2d 889 Pearl v. Wm. Filene's ...

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