
    The Robert Gair Company, Appellant, v. Israel W. Lyon et al., Respondents.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Sales — Waiver of defects by purchaser — Divisible contract — Acceptance of one installment.
    Where plaintiff contracted to supply defendant^ with a certain number of cardboard boxes to be delivered in installments, the fact that defendants accepted and paid for the first installment without noticing that the boxes did not conform to the contract constitutes no waiver of their right to reject future installments upon that ground.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, twelfth' district, borough of Manhattan, rendered in favqr of the defendants.
    Richard B. Aldcroft, Jr., for appellant.
    Theron L. Carman, for respondents.
   Fitzgerald, J.

The facts are admitted and substantially but one question of law is submitted upon this appeal. Plaintiff and defendants had mutual business relations, extending over a period of eighteen years prior to 1904, plaintiff manufacturing blue cardboard cartons which were used by defendants as receptacles for tooth powder. From time to time changes were made in the make-up of the cartons and, on ¡November 3, 1902, defendants sent a written order to plaintiff, which was duly received, for one million cartons to be delivered in installments during the year 1903; which order concluded with the words, Please change the address to 520 West Twenty-seventh street.” The address up to that time had been 139 and 141 Charles street. Plaintiff filled the order and neglected to make any change in the address and the entire million were delivered, accepted and paid for, bearing the old words in the usual place, 139 and 141 Charles street. It seems that plaintiff overlooked defendants’ directions and that defendants overlooked plaintiff’s mistake. In September, 1903, a further written order for another million cartons was given. This order was mute on the subject of address, but contained the words “ same as last” to be delivered in installments during 1904. Thereafter, on April 11, 1904, under this last contract, plaintiff made up and delivered 114,450 boxes, on each of which the address given was still 139 and 141 Charles street. This lot was also received by defendants, accepted and paid for. On May 11, 1904, the second installment under the new contract of 114,500 boxes was tendered for delivery, but defendants refused to accept or pay for them, the ground of rejection being that the boxes had in small letters in one lower comer the address printed as 139 and 141 Charles street, instead of what they claimed it should have been, 520 West Twenty-seventh street. It is not disputed but that plaintiff’s mistake in the first instance constituted a breach of .contract; but it is contended that this breach upon its part was waived by the defendants in accepting and retaining the imperfect boxes after a reasonable time for inspection. It was said in Crane Co. v. Collins, 103 App. Div. 480, that, where articles of a particular description are agreed to be manufactured or sold and the articles are not of the kind specifically described, a retention of them after the defect could with reasonable diligence have been discovered is a waiver of the defect ”; and, under this rule, as to the installment of imperfect cartons accepted and retained, defendants have clearly waived any breach of the condition of the contract. But can it be held that by such waiver they forfeit their right to reject future installments of concededly imperfect boxes? In Cahen v. Platt, 69 N. Y. 348, which action was by a vendor to recover damages for breach of an executory contract for the sale of glass, 10,000 boxes of glass of approved standard quality were to be delivered in installments, within a period of four months; 5,000 were delivered and paid for, and the vendee refused to receive any more. Defendant claimed that the glass was not of approved standard quality. It was held by the Court of Appeals in an opinion by Judge Earl that as the vendee at no time offered to return the goods accepted, and complained of the fact that they were inferior, such circumstances would not justify a repudiation of the contract altogether; that vendee could have demanded better glass in future and, if such' as the contract called for was not then furnished, he could refuse to accept it. The installment of goods in suit were not as contract called for. The acceptance of the previous imperfect installment constitutes, for that reason, no waiver of the right to reject. Defendants might not repudiate the contract altogether, but were not deprived of their right to insist that future installments should conform to the conditions of the contract. The installment, delivery of which was tendered and which constitutes the subject matter of this action, did not so conform and was properly rejected.

Plaintiff could not reasonably contend that it would be justified in completing the entire order without correcting the address and that defendants would be bound to accept and pay for the entire second million of boxes bearing words thereon misleading and prejudicial, yet in principle this is what is asked for.

Gildebsleevb and Davis, JJ., concur.

Judgment affirmed, with costs.  