
    (50 Misc. Rep. 177)
    DIECHMANN et al. v. BOYD et al.
    (Supreme Court, Appellate Term.
    March 26, 1906.)
    Sales — Breach of Warranty — Waiver—Evidence,
    : YVhere the vendees of logs, after discovering that the same were not of the size alleged to have been represented by the vendors, continued without objection to receive the logs and to saw them into planks, -they waived defendants’ breach of warranty, if any, as to the size.
    [Ed. Note. — For eases in point, see vol. 43, Cent. Dig. Sales, § 818.]
    • Appeal from Municipal' Court, Borough'’of Manhattan, Seventh District. ,. • . . . ...
    Action by Otto Diechmann and another against John Boyd, Jr., and anqther. Judgment for plaintiffs, and defendants appeal.'
    Reversed;
    Argued before SCOTT., P. J., and O’GORMAN and NEWBURGKR, JJ.
    - Heyn & Covington (Edward J. Pierce, of counsel), for appellants ■ Norwood & Marsden (Carlisle Norwood, of counsel), for respondents. ■ ■
   •SCOTT, P. J.

The pleadings are oral. The plaintiffs sued originally, as shown by their bill of particulars, for a breach of contract arising out of defendants’ refusal to deliver 31 logs of mahogany,' part of a much larger purchase, and for the storage expenses. On the trial; afteri. defendants had rested and plaintiffs, had offered testimony in rebuttal, the plaintiffs were allowed to amend their demand by adding a claim for damages for breach of warranty as to 157 logs; part of the same purchase, which had been accepted and cut up into planks by plaintiffs. The judgment in plaintiffs’ favor does not correspond in amount either ;with the original'claim ; for breach of contract or the added claim for breach of warranty, and, it is therefore impossible to determine upon which cause of action the justice went in rendering judgment. The defendants counterclaimed for the price of the 31 logs.

. Ifi November, 1904-,-the defendants received-upon consignment a lot'of 1,169 mahogany logs, which were stored in the yard of Nesmith &• Constantine, a well-known firm, whos'e inspections and certificates of measurement are generally accepted in the trade. Of these logs it is conceded'that 917 measured 12 inches and over in diameter, 157 appear to have been from 10 or' 11 inches, and the remainder were of less diameter. Under instructions from defendants’ agent the 917 logs were piled into what is known as a “crib,” and the 157 logs were piled on top of them. The remaining smaller logs do not figure in the case; ■ The.crib was built-up ih the manner described, in November, 19(34, and .remámed''.in< this-condition'until'February, 1905; during which time dickerings about a sale went on between one' Volkenning, who was plaintiffs’ buyer, and one Andojar, who was defendants’ broker. Volkenning was constantly around the yard, and saw the lumber before and after it was piled. Finally about February 7, 1905, a price was agreed, upon and a sale made at 8 cents per foot for the crib of 1,074 logs, less 2 per cent, discount for cash payment, to be paid one-half immediately against delivery order, the balance of the .bill within 30 days. ■ Brokers’ bought and sold notes embodying ijfyese terms were exchanged. Upon the completion of the sale the .inspection returns were handed to Volkenning. He says that this is. the first that he saw of them, but there is evidence that he had frequently seen them before. However this may be, his testimony is that he found that Nesmith & Constantine had made separate inspection per turns, one for 917 logs, and the. other for 157 logs. His suspicions seem to have been aroused by this circumstance, and- he sa)^ that,'.after going to The yard again and looking at the lumber, he went to defendants’ office and returned to one Alten, representing defendants, the inspection return,-the delivery order, and the bill for the lumber,'saying that the matter looked like crooked- business and that plaintiffs would have nothing to do with it. Then was made, as he saysj the guaranty which forms the basis of this action. He testifies that' Alten said: .

“We will guaranty that all the measurement? was done by Constantine, under the same inspection, and all at one time, and that-the 12,inches,-the logs being not under 12 inches, would apply to the whole lot.” , V '

Alten positively denied that he ever gave 'any -such guaranty.- ¡ He says that Volgenning'said that he'did not like the three upper- tiers'of logs on the 'crib, whereupon Alten told him that he could take The ¡lot or leave it. Thereupon plaintiffs accepted the sale, paid one-half the price, and.took all the logs away, except the -31 logs which wbrei'¡0n. the bottom layer, and which concededly were of the diameter r-of- ¡3:2 inches or upwards. The disputed 157 logs, being -piled on top ‘.ófrtíaje crib, were'taken first, and were cut ;into ■ planks by plaintiffs.i;- ¡After some of them had been cut Volkenning objected -to the size, bttiplainltiffs retained them‘and cut them up, and never offered to return them. The second payment became due on March 7th, but plaintiffs refused to pay until defendants notified the owners of the yard not to deliveiany further logs until payment had-been made. On March 28th plaintiffs wrote asserting the. claim that, the .logs, had been sold as all of the diameter of 12 inches, and insisted on deducting from the amount due the difference between the sale price and a lower price' at which they estimated the value of the .157 logs. Some correspondence ensued, resulting in the payment by plaintiffs of $3,525.15 on, account, leaving in dispute the balance of $267 unpaid on the bill and ,'$$7.39 for one-half of the discount, which was to have been allowed .only upon payment in cash, in accordance with the sales note. ■' !l

The judgment is sought to-be sustained upon two theories. ■ One is that defendants sold the crib with a representation that,all the logs were 12 inches in diameter or more. Just how it is claimed that- such a representation was made is not quite clear. At one time plaiñtiffs’’ agent seems to have claimed that the smaller logs were put on.,top of the pile.after-the sale ha’d been made, but this is clearly not.sustained. It is expressly testified to by Volkenning, plaintiffs’ buyer, that-nothing was said about sizes when the sale was made. The purchase’'was of the crib as it stood. It had been piled up.for months. The plaintiffs’ buyer had seen the logs, constantly, both before .and after they were piled up. He had every opportunity to examine the crib, and-should have known what he was buying. We can find no support for the claim that the sale was induced by any deceit or false representation. Nor is the claim of an express guaranty much better sustained. It is true that Volkenning testifies to a conversation which might be construed as a guaranty, but he may easily be mistaken as to the precise language used, and it is significant that no claim of a specific guaranty was made in the correspondence between the parties prior to the suit, nor in the action itself until the issues tendered by the complaint had been thoroughly tried out, and the plaintiffs had apparently' failed to establish their original cause of action.

But, even if a specific guaranty was made, it must be deemed to have been waived. Its breach, if breach there was, had reference to the three upper layers of logs, the first taken from the pile and sawed up. Concededly the plaintiffs had notice of an apparent discrepancy in measurement before they accepted any of the logs. The deficiency in size must have been apparent when the first logs were taken to the sawmill, and defendants' attention was called to them when only a part had been sawn up. Notwithstanding all this, the plaintiffs went on receiving and cutting up the logs as they came off the pile, and never claimed that their size was a breach of any express warranty. Whether there was a representation or a warranty, if there was either, the plaintiffs clearly waived it by going on with the contract and accepting the logs with full knowledge of the alleged breach. Upon the evidence as it stands, giving plaintiffs the benefit of every disputed question of fact, there is no basis for the judgment appealed from.

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

All concur.  