
    CARR v. SULLIVAN et al.
    (Supreme Court, General Term, Fifth. Department.
    April 13, 1893.)
    1. Sale—Waiver or Breach or Warranty—Acceptance or Goods.
    Where goods are delivered to the buyer’s agent, and reported by him to the buyer as not being of tile quality ordered, and the buyer, without complaint or notice to the seller, directs the agent to sell the same, which he does, there is such an acceptance of the goods as will preclude his recovering damages for their failure to comply with the contract of sale.
    2. Trial—Waiter or Jury—Request to Direct Verdict.
    Where both parties have requested the court to direct a verdict, plaintiff asking direction of a verdict on the claim sued on, and defendant a verdict on his counterclaim, it is too late, after the court has refused plaintiff’s request, and granted defendant’s, for plaintiff to ask to go to the jury on the issues.
    Appeal from Erie county court.
    Action by John V. Carr against Timothy Sullivan and another. From a judgment for defendants on a counterclaim and for costs, entered on a verdict directed by the court, and from an order denying a motion for a new trial, plaintiff appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    Hartzell & Newton, for appellant.
    A. C. Calkins, for respondents.
   DWIGHT, P. J.,

The action was against the defendants as indorsers, in their firm name, of a prbmissory note for §294.59, made July 17,1891, by “L. F. Genet Lumber Co.,” payable in three months, to the order of the défendants, for lumber sold by them to the maker, and indorsed by them for discount at a hank in Buffalo. The note, at its maturity, was dishonored by the maker, and protested for nonpayment. The defendants then took up the note, and shortly afterwards delivered it to the plaintiff on payment by him of the amount due thereon. The note was said to be lost at the time of the trial, so that it was not produced in evidence, but it seems the indorsement of the defendants was not erased at the time of its delivery to the plaintiff. By the plaintiff’s verified complaint it is alleged that it was indorsed by the defendants at the time of its delivery to him, but by his testimony on the trial he admits this statement not to be true. At this point arises the first issue between the parties. The theory of the plaintiff’s case is that this was a purchase by him of the note, as a subsisting obligation against both maker and indorsers; that of the defendants is that the transaction was a payment of the note by the plaintiff for the makers; and the evidence on either side tends to support the theory of each, with a very decided preponderance in favor of the defendants. The answer, besides the defense above stated, sets up a counterclaim for the amount of a promissory note of $288, made by the plaintiff to the defendants, for lumber sold by them to him, dated November 21, 1891, less than a month after the alleged purchase by him of the note set up in this complaint. The plaintiff by his reply admitted the making and delivery of the note set up by the answer, but claimed to recoup, thereon, damages for the breach of an alleged warranty by defendants of the quality of the lumber for which the note was given. This presented the only remaining issue on the pleadings, and on the proof there was clearly no question for the jury. The alleged warranty consisted in the order given by the plaintiff, and accepted by the defendants, for the future delivery in New York of a car load of elm lumber of the qualities known as “firsts” and “seconds;” and the evidence of the plaintiff himself shaw's that when the lumber was delivered to his agent in New York, and was reported to him by the agent as not being of the qualities ordered, the plaintiff nevertheless, without complaint or notice to the defendants, directed his agent to sell the lumber, which he did, and the plaintiff made no communication to the defendants on the subject until by his reply in his action. This was an unconditional and unqualified acceptance of the property, and precluded any recovery thereafter for its failure to conform to the terms of the executory contract under which it was delivered. Reed v. Randall, 29 N. Y. 358; Rust v. Eckler, 41 N. Y. 488; McCormick v. Dawkins, 45 N. Y. 265.

When the evidence was closed, the plaintiff’s counsel requested that the court direct a verdict for the plaintiff for the amount of the note declared upon in the complaint, which the court declined to do. Defendants’ counsel then requested the court to direct a verdict in their favor for the amount of the note set up in the answer, less a drawback for freight which was conceded by the defendants, and the court directed such a verdict to be taken. After that direction had been given, counsel for the plaintiff asked to go to the jury on each of the issues above defined, severally, which request was denied, the plaintiff excepted, and a verdict for the defendants was taken as previously directed. It is now a familiar rule that, when counsel for both parties request the court to direct a verdict, all the issues of fact as well as of law are to be regarded as submitted to the decision of the court, and no question need be submitted to the jury. Dillon v. Cockcroft, 90 N. Y. 649. It is true that a request for the direction of a verdict is not necessarily a waiver of the right to go to the jury, but, when such, request of either party has been denied, he may afterwards insist upon his right to go to the jury, if he makes the claim in time. It is manifestly too late to do so after the direction of a verdict has been given. The court has then acted upon the submission to it of all the questions in the case, and it is too late to withdraw the consent to such submission. Howell v. Wright, 122 N. Y. 667, 25 N. E. Rep. 912. There was no error in the disposition made by the court of questions of fact in this case. Upon the second of the issues presented we have already held there was no question for the jury, and upon the first we have already intimated our opinion that there was a clear preponderance of evidence in favor of the defendants. We find no other exception in the case which requires discussion. The judgment and order appealed from should be affirmed. So ordered. All concur.  