
    Louis Wegenaar, Plaintiff, and John L. Wegenaar, Appellant, v. Christ Dechow, Respondent.
    
      Sale — executory contract for the sale of a monument — effect of the vendee, after knowledge of defects therein, making payments to the vendor.
    
    The fact that a party who has agreed to pay for the making and erection of a - granite monument “ free from unnatural spots and rust ” has, after its delivery , and his noticing discolorations' thereon which he thought indicated the presence of rust, paid a portion of the purchase price upon being assured by the vendor that such- discolorations were only surface marks or stains caused by the iron bands-used in shipping -and would disappear by the action of the elements or could be removed by the application of oxalic acid (the vendee stating to the • vendor at the time that if the monument did not come out all right it would go hard with him), and that the vendee afterwards, notwithstanding .the fact that the application of water and oxalic acid did' not remove-the rust spots, makes " another payment, to the vendor in reliance upon his assurance that the spots ■ would disappear after one or two heavy rains, which, in fact, increased their size and intensity, does not preclude the vendee, although the vendor was guilty of no actual fraud in inducing the vendee to delay his rejection of the monument, from thereafter-notifying the vendor of the defect, and informing him that the balance of the contract price would be ready as soon as he produced a satisfactory monument as per agreement, such notice being the equiva- ' lent of a refusal to accept" the monument.
    Appeal by the plaintiff, John L. Wegenaar, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of' the county of Cattaraugus on the loth day of March,, 1897, upon the report of a referee.
    The plaintiff, Louis Wegenaar, died during the pendency of the action, but the other plaintiff, John L. Wegenaar, continued the suit as surviving partner, and no change was made in the title of the action.
    
      James L. Quackenbush, for the appellant.
    
      Alexander Wentworth, for the respondent.
   Adams, J.:

• This action was brought by the firm of L. Wegenaar & Son, of which the plaintiff is the surviving member, to recover a balance claimed to be due upon the contract price of a monument which the plaintiff’s firm had erected upon the defendant’s cemetery lot in pursuance of a written -contract entered into between the parties. .

This contract bore, .date the 13th day of March, 1893, and provided, among other things, that the plaintiff’s firm would furnish ,and erect, during the month of May following, a monument of the description and dimensions -therein specified, which was to be constructed of dark Quincy granite “free from unnatural spots and rust.” The contract price of the monument was $415, of which sum $100 was payable upon delivery, and the balance on the first day of October thereafter. It was further expressly agreed that the monument should “remain the property of L. Wegenaar & Son with the right to remove and hold the same.until.fully paid for,” and that if the monument was not as described in the contract the defendant would not be required to pay for it “ until satisfactory as per agreement.”

The execution of the contract is admitted by the defendant, but he contends that the plaintiff’s firm did not fulfill .the same according to its terms, in that the monument furnished was not free from unnatural spots and rust.

The issues joined herein were, tried by and before a referee, who-found that the “monument was not free from unnatural spots and rust, but on the contrary was affected with rust, which appeared in spots on the surface of the monument.”

The evidence upon this branch of the case, while somewhat conflicting, was, in our opinion, amply sufficient to support the above finding of fact, but of course -this of itself did not justify the conclusion reached by the learned referee that the plaintiff was not entitled to recover the balance claimed to be due upon the contract.

The contract sued upon was clearly executory in its character, and the language employed therein was descriptive of the article and work to be furnished, which obligated the vendor to furnish a, monument which should in all essential particulars correspond with such description. (Pierson v. Crooks, 115 N. Y. 539.)

But before the vendee could take advantage of any failure upon the part of the vendor to perform in this respect, it became important for him to show that- he had fulfilled a reciprocal obligation which rested upon him; for it is a well-settled rule that if, after discovery of, or a reasonable opportunity to discover, any patent defect in an article delivered under an executory contract of sale, the vendee neither returns nor offers to return the same, but omits to give the vendor notice or opportunity to take it back, the contract becomes executed and the vendee, in the absence of a collateral contract of warranty, is conclusively presumed- to have accepted the article, and cannot thereafter be heard to complain of its inferior quality. (Pierson v. Crooks, supra ; Coplay Iron Co. v. Pope, 108 N. Y. 232; Reed v. Randall, 29 id. 358; Dowdle v. Bayer, 9 App. Div. 308.)

The vital question, therefore, to be considered in this case is whether or not the evidence contained in the record brings the defendant within the operation of the rule above stated, and in ■ order to determine this question intelligently it will be necessary to refer briefly to some of the salient facts of the case.

While the contract in question called for the erection of the monument in the-month of May, 1893, it was not in fact finished and placed in position until the very last days of the following August, at which time the defendant testifies that he noticed discolorations which he thought indicated the presence.of rust, and that he so informed the plaintiff, John L. Wegenaar, who was ■present supervising the work, but was assured by him that the discolorations to which his attention had been directed were only surface marks or stains caused by the iron bands used in shipping; that the same would disappear in time by the action of the elements and that they could, if necessary, be readily removed by the appli- ' cation of water and oxalic acid. The defendant further states that relying upon these assurances he paid $108 upon the contract, but ' stated to the plaintiff at the time of paying this sum that if the monument did not come out all right it would go' hard with him'; that he thereafter followed the plaintiff’s instructions and attempted ' to remove the rust spots by scrubbing the same with water contain- ' ing oxalic acid; that this treatment apparently had the desired effect when' the monument was wet, but that as soon as the water dried off, the spots reappeared and seemed to be somewhat larger.

Notwithstanding all this, however, the defendant thereafter and on the thirteenth day of September, made another payment of fifty dollars upon the contract, and this it is now contended furnishes indubitable qnoof of acceptance and acquiescence.

It is not to be denied that the defendant at the time of making this last payment did have some knowledge of the defect of which he now complains, and with this knowledge such payment would ordinarily be regarded as equivalent to a formal acceptance (Pierson v. Crooks, supra); but the defendant insists that he was induced to make the payment by the plaintiff’s urgent solicitations and in z’elianee upon the assuz’ance which he had received that the spots would disappear after one or two heavy rains.

■ It appears, and the learned referee has so found, that up to this time there had been no z*ain of any account, but that shortly thereafter a heavy rain set in which lasted several days; that following this storm the spots, instead of disappeai’ing, increased in size and intensity, and other" spots manifested themselves. Thereupon, and on the third day of Octobei’, the defendant notified the plaintiff in wilting of this fact, and informed him that the balance of the contract price would be ready as soon as he produced a satisfactory monument as per agreement. This was, we think, equivalent to a refusal to accept, and that it was so regarded by the plaintiff is apparent from the fact that he thereafter sent a man to make another attempt to remove the spots which was not sufficiently successful to warrant the person sent in demanding of the defendant a further payment.

But was a rejection at this time and in these circumstances sufficient to relieve the defendant from a fulfillment of his contract ? The authorities above referred to, as well as many others which might be cited, all hold that the vendee is entitled to full opportunity of inspection before determining whether to accept or reject the article purchased, but in order to avail himself of this right it must be exercised within a reasonable peziod after the opportunity to inspect pz-esents itself, and if in the meantime the vendee does something inconsistent with the exercise of that right he forfeits it. (Benj. Sales [Bennett’s ed.], § 703.)

Thus an unequivocal acceptance may be regarded as a waiver (Sprague v. Blake, 20 Wend. 61; Stone v. Browning, 68 N. Y. 598), and, undoubtedly, payment of the contract pi’ice or a paid thereof, with knowledge of a defect in the quality of the article "purchased, would have the same effect, but, at the same time, conditions may exist which will excuse a party from exercising the z’ight of rejection promptly and even relieve him from the consequences of acts which would, under other cii'cuinstances, be regarded as equivalent to acceptance, as, for example, where acceptance is induced by artifice or fraud of the vendor. (The Dutchess Co. v. Harding, 49 N. Y. 321.)

It is true that there is no claim that the vendor in this case' was guilty of actual fraud ; but the learned referee has- found upon evidence which is quite convincing that he did induce the defendant to defer action by representations which turned out to be false in fact; and even if such representations were made in good faith the defendant was lulled into inaction by them, and this circumstance, we think, brings the case within the operation of the familiar rule that a party is relieved from the consequences of a failure to perform any obligation ■ where such non-performance is caused or induced by the acts of the other party. (Stewart v. Keteltas, 36 N. Y. 388; Leslie v. The Knickerbocker Life Ins. Co., 63 id. 27; Winch v. Mutual Benefit Ice Co., 86 id. 618.)

, The plaintiff, it seems, was a dealer in and manufacturer of tombstones. Presumably he had had considerable experience in constructing them out of Quincy, granite, and knew something of the peculiarities of that species of stone, while, upon the other hand, the defendant had little or no knowledge upon the subject. When, therefore, the plaintiff assured the defendant that the spots he discovered were not rusty and that they would disappear with proper treatment or as soon as subjected to the influence of a heavy rain, the defendant had a fight to believe him, -and if, in reliance upon this assurance, he did not act as promptly as he otherwise would have done, and if in the belief that the rain would have the effect claimed for it, he made a payment or did some other act which in different circumstances would be regarded as a waiver of his right to reject, we think that, within the principle of the cases cited, the plaintiff is estopped from invoking the same rigid rule as would be applied if the defendant had been uninfluenced in his actions by the plaintiff’s declarations, and, if so, then the learned referee was correct in his conclusion that the defendant had the right to rescind the contract and to recover back the moneys paid by him to the plain'tiff. (Taylor v. Saxe, 134 N. Y. 67.)

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  