
    THOMAS F. YOUNGS et al., Plaintiffs and Respondents, v. GEORGE L. KENT et al., Defendants and Appellants.
    
      [Decided March 5, 1870.]
    That part of a lot of goods sold by sample were not of the kind and quality agreed to be sold, and did not correspond in kind and quality with the sample (the whole lot having been delivered, and the defective portion not having been returned or offered to be returned to the vendor), cannot be pleaded in *bar to an action of goods sold and delivered, brought to recover the agreed price of the lot.
    Before Monell, Jones, and Spencer, JJ.
    This action is brought to recover the price agreed to be paid by defendants for twenty-six hogsheads of sugar which were sold and delivered by plaintiffs to defendants.
    The answer sets up as a defense in bar that the sale was by sample, and that four of the hogsheads delivered were not of the kind and quality of sugar which the plaintiffs agreed to sell to the defendants, and did not correspond in kind and quality with the sample.
    The plaintiff moved for judgment on the answer as frivolous.
    The motion was granted at Special Term, and j udgment was thereupon entered in favor of plaintiffs against the defendants, for the agreed price of the goods, interest thereon, and costs, amounting to $5,066.55.
    Defendants appeal to the General Term from the order granting the motion for judgment on the answer as frivolous, and from the judgment entered on such order.
    
      Mr. Charles Jones for appellants.
    The question is not one arising under executory contracts. The case as made by the plaintiffs in their complaint, is in substance an action for goods sold and delivered in the absence of any special contract, and the further answer of the defendants sets up a special contract which does not in terms, or by implication, admit that the goods sold and delivered by the plaintiffs were those claimed for in the complaint.
    The admission standing upon the record, therefore, is that there was a special contract; and to enable the plaintiffs to recover in their present form of action, therefore, it would be incumbent on them to show that the sugars for which they claim to recover were those referred to in the special contract set forth in the answer, and that by the action of the defendants in accepting goods under the contract, they were bound to pay for the goods.
    The amount and value of the goods so accepted, therefore (if the plaintiffs can recover at all in their present action), would have to be determined upon, showing what the contract was and what was delivered under it, and the circumstances of such delivery, by which the plaintiffs could be excused for the non-performance of the whole contract.
    These questions necessarily must be determined by evidence on the trial.
    
      Mr. Henry J. Scudder for respondents
    If the answer in this suit can be defended from the charge of frivolousness, it is because there is some color in the law for this proposition; that under a contract for the sale of goods of a particular description, or to correspond with a certain sample, the buyer may receive and keep goods delivered to him under the contract without incurring any obligation to pay the price thereof, or any portion of it, should the goods turn out in any, even the smallest respect, not to answer the description or conform to the sample. It does not seem necessary to give reasons or cite authorities to show the absurdity of such a position.
    The defendants may endeavor to escape the consequences of the foregoing point by saying (this was their argument in the court below) that they have so cunningly framed their answer as not in fact to admit a delivery of the goods. But this ingenious, 
      rather than ingenuous plea, will not commend itself to a tribunal which requires suitors to be frank, unequivocal, and explicit in their pleadings. It is manifest that they admit the delivery of twenty-six hogsheads of sugar, and rest their defense on the allegation that it did not conform to the description by which they agreed to purchase (West v. The Am. Exc. Bank, 44 Barb., 179).
    In construing an answer to ascertain the scope of its denials and allegations, the whole of it must be taken together.
    The matters set up in this answer are not matters of confession and avoidance, but matters of denial. The purpose of them is .not to admit the case made by the complaint, but to deny it. How, it is the intention of the Code to require the defendant, if he means to deny any allegation in the complaint, to deny it directly, and this either by an absolute denial, or by a denial of any knowledge or information sufficient to form a belief. It is not designed to permit the defendant to set up in his answer facts which, if true, show that some material allegation of the complaint is untrue. He must deny the allegation, and upon the trial of the issue thus raised give the facts in evidence. It is only matter which admits the truth of some allegation of the complaint, and avoids its effect, which the defendant is required or permitted to set forth affirmatively (Code, § 149; West v. The Am. Exc. Bank, supra).
    
    How, the frivolousness of the answer appears right here. The defendants do not pretend that they have sustained any damage, or that the sugars were of inferior quality; indeed, for aught that appears, the goods delivered were of superior value to those called for by the contract. The notion upon which the answer proceeds is that the plaintiffs have not performed their contract, and, therefore, cannot maintain an action upon it. The matter of waiver is wholly lost sight of.
   By the Court:

Jones, J.

The averments contained in the answer clearly constitute no defense. If there had been so substantial a variance as to render the four barrels less valuable than the sum agreed to be paid therefor, then the difference between the actual value and the price agreed might have been recouped by an answer containing proper averments. But the answer does not set up a recoupment. It is an answer in bar.

Order and judgment affirmed with costs of appeal.  