
    L. Heyworth Mills, Emil S. Duflot and C. Gustav Mourraille, Copartners, trading as Mills & Duflot, Appellants, v. The Knickerbocker Hat Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Sales—interpretation and evidence of contract — quantity of goods sold — waiver of defects by purchaser — necessity of opportunity to inspect — tender.
    Where plaintiff; in an action to recover the purchase price ■ of goods sold to be delivered in given quantities and on certain dates, fails- to prove an "actual tender of the goods, but the buyer, after writing to the seller that goods already received were too narrow and cancelling-the balance of the order, rejects such balance after inspection at plaintiff's place of business, on the specific ground that such goods were too narrow, actual tender is waived; and a dismissal of the complaint on the grounds of insufficient proof of tender, and that plaintiff' was not entitled to recover unless an actual physical tender was shown, is error.
    Appeal by plaintiffs from a judgment in favor of the defendant rendered in the City Court of the city of Hew York.
    Everett, Clarke, Benedict & Ward (A. Leo Everett, of counsel), for appellants.
    J acob Gordon, for respondent.
   ■Guy, J.

Plaintiffs appeal from a judgment dismissing the complaint in an action brought for the purchase price of a quantity of black poiluehon, which, by a written contract, defendant agreed to purchase from plaintiffs’ assignors, the deliveries to be made in certain quantities and upon .certain dates specified in the contract. ¡Several installments of the goods were delivered between April 25; 1910, -and June 20, 1910, and, though some disputes arose in connection with said deliveries, matters were finally adjusted between the parties and the goods retained by the defendant. This controversy arose over the installment which, under the contract, was to have been delivered on July 15, 1910. As to this lot of goods, the answer alleges that they were not of the width agreed upon; that due tender was not made, and that the contract was cancelled on July 15, 1910. Ho sufficient proof was introduced by defendant of the cancellation of the contract. Plaintiffs failed to prove an actual tender of the goods. There was evidence introduced, however, to the effect that, subsequently to July fifteenth, the president of the defendant company examined the goods in question at plaintiffs’ place of business, claimed that they were of insufficient width and rejected them on that ground. There was also introduced in evidence a letter from defendant to plaintiffs, dated July 14, 1910, which read, in part, as follows : “ The lot of goods received to-day runs narrow; the same as the last shipment about which we notified you on June 30th, and which we are unable to use. Kindly cancel the balance of this order;” to which plaintiffs replied, by letter of July fifteenth, as follows: “ Replying to your favor of the 14th inst., we are greatly surprised at the bad faith you put in the matter. "x" * * Furthermore we serve notice upon you that we hold subject to your instructions the rest of your order, as per your signed copy to us.”

notwithstanding this evidence, the learned tria.1 judge, at the close of the case, dismissed the case on the ground that there was not sufficient proof of tender, and that, in the absence of proof of actual physical tender of the goods at defendant’s place of business, the plaintiffs were not entitled to . recover. . The dismissal of the complaint on this ground was error. The letter, of July fourteenth, and the subsequent rejection of the goods, after inspection, on the specific ground that they were not of sufficient width, constituted a waiver of tender. Littlejohn v. Shaw, 159 N. Y. 188.

“ When the refusal to accept purchased goods is based upon _ • particular objections, formulated and deliberately stated, all other objections are deemed to be waived, and the vendor to recover the price need only prove compliance with the contract of sale in the particulars covered by the stated objections.” Hess v. Kaufherr, 128 App. Div. 526; Shaw v. Republic Ins. Co., 69 N. Y. 286; Windmuller v. Pope, 107 id. 674..

“ Whether the repudiation gives rise to a cause of action or not, it unquestionably excuses the injured party from further performance.” Williston ‘Sales, § 586.

. The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Seabury and Gerard, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  