
    Jacob H. Studer, App’lt, v. George Bleistein et al., Exrs., etc., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    1. Exeoutoby contbact — Acceptance estops claim eob damages.
    A deliberate, intelligent and intentional acceptance of property manufactured under an executory contract of sale, after inspection, precludes the vendee from claiming damages for any visible or discernible defect in the property sold.
    3. Same.
    Where defendant invited inspection of colored plates so as to have them bound by third parties, and plaintiff then directed the style and mode of binding, and made sales and required their delivery to" his vendees for nearly a year, he is not at liberty to claim that there was no acceptance or claim damage for defects in plates.
    Appeal from judgment of supreme court, general term, first department, affirming report of referee holding that although defendant had not fulfilled the agreement, yet as plaintiff had accepted the work done, he was precluded from maintaining action for damages.
    
      Wallace Macfarlane and Austen G. Fox, for app’lt; Ansley Wilcox, for resp’ts.
    
      
       Affirming 15 N. Y. State Rep., 971.
    
   Ruger, Ch. J.

This action was brought to recover damages for an alleged breach of contract by the defendant’s testator.

The plaintiff was the author and editor of a book called Studers Birds of ¡North America,” and the defendant’s testator was engaged in the business of lithographic printing in colors and otherwise. The contract was in writing, and, so far as the questions in this case are concerned, was to the following effect The defendant’s testator proposed in writing to the plaintiff “ to get out an edition of 4,000 of each plate of your work, Birds of ¡North America, best eastern plate paper, equal to sample furnished by you. * * * The stones with black drawings to be furnished by you. The color plates I agree to furnish correct in every detail, in the portraying of the birds, and in the general design and effect, as in the original colored copies furnished by you,” for a price therein specified. The plaintiff accepted the offer in writing. There were to be 119 plates in each one of the 4,000 sets. When completed the plates were to be delivered to another company to print and bind, but no time for such delivery was stated in the contract

It is now alleged by the plaintiff that some of the plates were defective in respect to the coloring of some of the birds, and that they were not printed on best eastern plate paper.

Immediately after the contract was executed, in April, 1881, the defendant’s testator entered upon its performance. He procured the paper, upon which the work was to be lithographed,' from the makers of the best eastern plate paper, but, upon an examination thereof by the plaintiff, he objected to its color, and thereupon the contractor procured other paper from the same manufacturer for the work. This paper the plaintiff frequently saw during the progress of the work, and. raised no objection to its quality or color, until long after the work was substantially completed.

In May, 1882, the first thousand sets of plates were finished and bound, and the plaintiff was invited to inspect them with a view to their acceptance by him. He raised objections to the execution, in point of coloring, to some eight of the plates, and the defects being remediable the defendant’s testator agreed to perfect them by hand, to which the plaintiff assented.

On July 1st, 1882, the plaintiff was notified that the 3,000 sets of plates necessary to complete the edition were finished and ready for inspection, and he was asked to examine the same with a view to their delivery to the parties who had contracted to do the press work and -binding necessary to form complete books. On July 3d, 1881, the plaintiff, after an unrestricted opportunity to inspect all of such plates, addressed and delivered the following letter to defendant’s testator:

“ The sample prints of the Birds of N. A., for the three thousand edition submitted to me and compared with the original sketches, are accepted.
Yours truly,
“J. H. Studer.”

. This letter is slightly equivocal, but, in view of all of the facts and circumstances, it cannot be construed as meaning anything but an intention to accept the entire edition ref rred to as open to inspection, 'and was correctly so considered by the referee.

Ho question is raised but that the samples examined were fair representatives of the bulk of the edition of 3,000, and they were thereupon, with the knowledge and consent of the plaintiff, delivered to the printing and binding company to be finished under their contract. A few days thereafter, plaintiff again examined the first thousand plates which had previously been rejected, and they having then been repaired and corrected by the printers, he after a thorough inspection accepted the same as a compliance with the contract

Although the evidence as to this acceptance was conflicting, that supporting the defendant’s version largely preponderated, and the referee found that such plates wére accepted.

This finding is, of course, conclusive as to the fact of acceptance on this appeal.

The whole edition of 4,000 plates was printed upon the same quality of paper, by the same workmen, and from the same plates, and it can hardly be supposed that there was any material difference in the various sets.

Subsequent to the acceptance, the printing and binding company, during the years 1882 and 1883, upon the plaintiff’s orders, delivered to various purchasers from him in Canada and the several states of the Union, some 600 volumes of the bound books containing the plates contracted to be furnished by the defendant’s testator.

The referee found that the paper used in printing the plates-was equal in quality and color to the sample furnished by the-plaintiff; that the defendant’s testator fulfilled and performed his contract with the plaintiff, and that the plaintiff accepted such performance, and ordered judgment dismissing the complaint. The referee also found that there were no latent defects or imperfections in the points of the 8,000 edition, and that every difference between them and the original sketches and prints were discernible on inspection and comparison of the prints with said sketches.

The only difficulty in the case arises over the additional findings of the referee made upon request of the plaintiff, which are now claimed by the appellant to be inconsistent, in some respects, with the original findings.

Among other things, it is claimed that inasmuch as the referee-has found, that the best eastern plate paper was not used by the' defendant’s testator in making the plates, that there has been a breach of the contract in that respect.

This contention proceeds, we think, upon a misconception of the meaning of the contract, which requires only “best eastern plate paper equal to sample furnished,” and itis expressly found that the paper used was equal to the samples. This finding is amply supported by the evidence. The apparent discrepancy is further explained by the referee’s finding, that the best plate paper is especially adapted to printing steel plate engravings, and is not the best plate paper for printing colored lithographs, and that the-paper used was the best plate paper for the purpose contemplated by the contract.'

We are of the opinion that the contract called for the best plate paper adapted to the purpose for which it was to be used, and that the paper furnished was a compliance with the meaning and intent-of the contract as properly construed.

The referee, in addition to his finding that the contract was fulfilled and performed by the defendant’s testator, also found, “ that, said plates, as printed by said defendants, under said contract,, were not correct in every detail to portray the birds in general design and effect, as provided in said contract, and that they were not such a . reproduction of the original sketches furnished by Studer under said contract as were required thereunder, and were not fair or good reproductions.”

These findings are expressed in quite general terms, and do not-assume to specify the defects alleged to exist. It does not appear from them but that they arose from imperfections in the plates which were furnished by the plaintiff, and for which the defendant’s testator was not responsible, or from some other-cause.

The findings are not inconsistent with the facts appearing in evidence, that the imperfections complained of were confined to a few plates in the edition of the first thousand prints, and were-quite slight and trivial in character; but, notwithstanding this fact, it would, we think, be improper for a court to ignore the apparent inconsistency existing, between the several findings of the referee in respect to this subject, were there not some controlling reason for doing so.

The referee’s decision evidently proceeded upon the theory that the acceptance of the prints by the plaintiff precluded him from raising any objection to the performance of the contract in respect to such defects as were visible and capable of discovery upon inspection. The judgment of the referee was affirmed at general term upon the same ground, and we are inclined to agree with both tribunals in the view they have taken of the case.

The general rule that acceptance of property manufactured under an executory contract by the vendee precludes him from subsequently claiming damages for defects in such property, is elementary. It is also well settled that a warranty, even in an executed contract, does not extend to known defects, Schuyler v. Russ, 2 Caines, 202; Jennings v. The Chenango Co. Mut. Ins. Co., 2 Denio., 75; Bennett v. Buchan, 76 N. Y., 386; Day v. Pool, 52 id., 416; Parks v. Morris Axe & Tool Co., 54 id., 586; Van Schoick v. Niagara Fire Ins. Co., 68 id., 434, and for obvious reasons fraud in respect to the quality and condition of property sold cannot be predicated of defects which were visible and known to the party alleged to have been defrauded. The gravamen of fraud is deceit and there cannot be fraud where a party is not deceived. Dambmann v. Schulting, 75 N. Y., 55; Benjamin on Sales, § 555.

The claim here is, however, that there was an implied warranty ■of the quality of the material to be used and the character of the work to be done, which survived the acceptance of the property sold and gave a right of action for defects subsequently discovered in such property.

We have before seen that this claim cannot be supported in respect to the quality of the paper used, as that fact has been found by the referee adversely to the claim of the appellant upon evidence which we regard as sufficient to support his finding.

The action must, therefore, be supported, if it can be held to lie at all, upon the claim of warranty to be implied from the description of the work contained in the contract We entertain no doubt but that this was an executory contract for the manufacture and sale of personal property; which, upon performance by the ven■dor, entitled the vendee to an opportunity of inspection and tíre right to accept or reject such property as he should determine after examination. The parties have obviously so treated the contract and should now be held to the interpretation which they have put upon it.

An acceptance by the vendee of personal property manufactured under an executory contract of sale, after a full and fair opportunity of inspection, in the absence of fraud, estops him from thereafter raising any objection as to visible defects and imperfections whether discovered or not, unless such delivery and acceptance is accompanied by some warranty of quality manifestly intended to survive acceptance. Reed v. Randall, 29 N.Y., 358; Caylord Manufacturing Co. v. Allen, 58 id., 515; Gurney v. A. & G. W. R. Co., 58 id., 358; Norton v. Dreyfuss, 106 id., 90; 8 N. Y. State Rep., 570; Coplay Iron Co. v. Pope, 108 id., 232; 13 N. Y. State Rep., 480; Brown v. Foster, 108 id., 387; 13 N.Y. State Rep., 805.

It was said- in Gurney's case that “ the general rule is when articles are sold upon an executory contract * * * that a delivery and acceptance of articles after examination, or an opportunity to examine them, is a consent and agreement that the articles compared with the contract and precludes a recovery for any defects which may exist.” The rule stated in Norton v. Dreyfuss, assuming that there was no fraud inducing the acceptance, was “that the acceptance by the vendee of articles manufactured for him under an executory contract, after an opportunity to examine them, precludes him from raising any question as to defects or imperfections which were visible and capable of discovery on inspection, unless there is a warranty of their quality which was intended to survive their acceptance and give the. vendee further-time for trial and examination.” In Coplay Iron Co. v. Pope it is-said: “ The representation as to kind and quality of iron was part, of the contract of sale itself, descriptive simply of the article to be-delivered in the future, and clearly within the cases cited, an acceptance of the property, * * * without any offer to return the same at any time, deprives the person so accepting of any right to make complaint of its inferior quality.”

The. opinion of Chief Judge Church, in The Dutchess Co. v. Harding, 49 N. Y., 321, is peculiarly applicable to this case. He-says: “ The learned judge who tried' this case at the circuit ruled that the contract for the sale and purchase of the sumac was executory ; that there was no warranty, express or implied, and that the acceptance of the delivery of the merchandise, after an examination, was conclusive upon the plaintiffs of an assent on their part that the property was of the quality contracted for, and in the absence of fraud prevented any claim by them on account of its inferior quality. * * * There was no error of law in this-ruling.

The acceptance of the property under such a contract implies a consent or agreement on the part of the vendee that the quality is satisfactory, and is conclusive upon him. He is not bound to accept a different article from that contracted for, and he is entitled to an opportunity for examination. The agreed quality is regarded as a part of the contract of sale itself, and not as a warranty or agreement collateral to it.” The case, however, was determined upon the ground that the acceptance of the sumac was induced by fraudulent practices on the part of the vendor. The case of Day v. Pool, 52 N. Y., 416, is not in favor of the appellant. In that case the defects of the article sold were not discernible-upon inspection, and there was a warranty of the quality of the-syrup sold, which was obviously intended to survive the receipt, and use of the property. It was, however, held in that casej that, the vendee in an executory contract cannot rely upon a warranty as to defects open and visible. Muller v. Eno, 14 N.Y., 597, was a. case upon an executed contract of sale accompanied by an express warranty. In Brigg v. Hilton, 99 N. Y., 529, although the contract of sale was executory, it was held that an independent warranty as to the quality of the goods sold accompanied the delivery, and induced their acceptance without inspection.

We think the authorities are uniform, to the effect that a deliberate, intelligent and intentional acceptance of property manufactured under an executory contract of sale after inspection precludes the vendee from claiming damages for any visible or discernible defect in the property sold.

The acceptance disclosed by this case, is not one to be inferred from the receipt of the property without objection; but is founded upon an actual inspection made with the view of determining the question whether the property should be received as a performance of the contract or not. We think the acceptance was unequivocal, with a full understanding on the part of the plaintiff of its design and effect. The inspection of the goods was invited for the purpose of obtaining authority to deliver the goods on behalf of the plaintiff to the parties who had contracted to print and bind the plates into books for him. The goods were clearly accepted for this purpose, and they were immediately handed over to those parties for the performance of the work they had contracted to do upon them. The plaintiff well understood this purpose and treated the contract of the defendant’s testator as having been performed by assuming the ownership and control of the property thereafter; directing the style and mode of binding, and making sales of the books thus bound, and requiring their delivery to his vendees, for a period of nearly a year after such acceptance. Under such circumstances he is not at liberty to claim that there was no acceptance of the property sold, or claim damages for defects in the articles so accepted. Brown v. Foster, supra; Lillywhite v. Devereux, 15 M. & W., 285.

The facts of this case bring it clearly within the authorities cited The ground upon which any claim of warranty can be founded relates solely to the description of property contained in the contract of sale. It refers only to those qualities which were readily discernible upon inspection, and was not collateral to„ but a necessary part of the contract of sale, and affords no ground for the inference that any warranty was intended which should survive the acceptance of the property.

The judgment should therefore be affirmed.

All concur.  