
    MATHEW F. NORTON, Respondent, v. BERNARD DREYFUSS, Appellant.
    
      Articles to be manufactured—acceptance of.
    
    
      A bill of articles manufactured to order, was presented to the defendant, a day or two after the delivery; defendant refused to pay on the ground that they did not conform to the contract. Three or four days after this, the bill was again presented, and payment or a return of the articles demanded. Defendant refused to either pay or return—according to his testimony, on the ground that he wished to have counsel’s advice. Two or three days after this, defendant wrote a letter offering to return, but the evidence clid not show it bad been sent to plaintiff. Held, that defendant had not rescinded the contract, but had accepted the articles, and was liable for the contract price ; and that, the defenses set up not being sustained by proof, a direction of a verdict for the plaintiff was proper.
    Appeal from a judgment entered on the verdict of a jury by direction of the court.
    This action was brought to recover the price agreed to be paid by defendant to plaintiff for certain medallions, plates, frames and backs, to be by him manufactured for defendant. The complaint alleged that plaintiff had manufactured and delivered the articles.
    On February 14, 1883, the defendant wrote the following letter, which, however, was not shown to have been sent to plaintiff :
    New York, Feb. 14, 1883.
    “ M. F. Norton, Fsq., 140 Wooster St., City-:
    “Your brass dies for looking-glass frames, as also for the four medallions representing Asia, Europe, Africa and America, are at your disposal. I had the impression that I had a lien on them, for the damage caused by your failure to comply with your agreement, but my attorney advises me that I have no legal right to hold said dies for any such purpose.
    “Send for the dies whenever you wish; they are totally worthless to me.
    “ Yours, etc.,
    “Bernard Dreyfuss.”
    The defenses and other proofs appear in the opinion.
    
      Franhenheimer & Rosenblatt, attorneys, and John Franlcenheimer, of counsel for appellant,
    on the questions considered by the court, argued :—I. By directing a verdict for the plaintiff, the court must be regarded as ruling that the plaintiff was entitled to a verdict, even upon the case as presented by the defendant’s testimony, and in tdew of any inferences which a jury might legitimately draw from the defendant’s testimony, or from the whole evidence in the case (Royce v. Watrous, 7 Daly, 87; Stine v. Flower, 47 N. Y. 566 ; Miner v. Mayor, 5 J. & S. 171).
    II. Even if the ruling of the court be correct, that the refusal to return the dies on demand was an acceptance of the same, and makes defendant liable for the price, it was a question for the jury whether upon all the evidence there was an absolute refusal to return the dies. The defendant denies that plaintiff made a personal demand upon him for the dies, and states that after he had absolutely rejected the dies and refused to pay for them, his foreman asked him whether he should surrender the dies, and plaintiff telephoned to the foreman to hold the same until he could see his lawyer. There was no absolute refusal; it was simply a direction to wait until defendant could ascertain his rights.
    III. There is no absolute rule of law that the buyer’s failure to return or offer to return goods upon discovering their insufficiency, is to be deemed, per se, an acceptance of the goods. It is a question for the jury whether, under all the circumstances, the buyer’s conduct is to be interpreted as a ratification of the bargain (2 Smith L. C. 16, 5 Am. Ed.). The counsel commented on the cases of Reed v. Randall, 29 N. Y. 358 ; McCormick v. Sarson, 45 Ib. 265 ; Dutchess Co. v. Harding, 49 N. Y. 321 ; Gaylord Mfg. Co. v. Allen, 53 Ib. 515 ; Parks v. Morris Ax and Tool Co., 54 Ib. 586.
    TV". Under this point the counsel assumed that there was in the answer a counter-claim or recoupment of damages arising .out of a breach of warranty that the articles were fit for the purposes for which they were sold; and based an argument on such assumption.
    V. If the plaintiff agreed, as testified by the defendant, to make the dies to defendant’s perfect satisfaction, the plaintiff could not recover unless the defendant was satisfied with the dies. The mere refusal to surrender the dies on demand until defendant could obtain advice of his counsel, was not, as matter of law, an acceptance of the dies as satisfactory, in the face of defendant’s absolute rejection of the same as unsatisfactory and wholly worthless. At least it was a question for the jury whether plaintiff did agree as aforesaid, and whether defendant did accept the dies as satisfactory (Gray v. Central R. R. Co., 11 Hun, 70 ; Tyler v. Ames, 6 Lans. 280 ; Spring v. Ansonia Clock Co., 24 Ib. 175 ; Grant v. Burch, 26 Ib. 376 ; Brown v. Foster, 113 Mass. 136).
    VII. The plaintiff, by demanding a return of the goods, himself rescinded the sale (Thornton v. Wynn, 12 Wheat. 193 ; Long v. Preston, 2 Moore & P. 262 ; Healey v. Utley, 1 Cow. 345). There can be no valid claim that defendant did not consent to this rescission. He had absolutely rejected the goods, and refused to pay for them, and in retaining the goods for the purpose of obtaining the advice of his lawyer, he did not claim to hold the goods as his own, but as the goods of the plaintiff, upon which defendant thought he had a hen. In 2 Pars, on Cont. 677, 678 (side paging), it is said that plaintiff’s demand for return of goods, taken in connection with defendant’s letter offering to surrender, is a rescission. If the sale was rescinded, the mere act of the plaintiff alone, in suing upon the contract as still in force, could not reestablish the contract of sale (Fullager v. Reville, 3 Hun, 600 ; Morris v. Rexford, 18 N. Y. 552 ; Kinney v. Kirnan, 49 Ib. 164).
    
      Edward S. Hatch, attorney, and of counsel for respondent,
    on the questions considered by the court, argued : —I. There was no issue of fact, as to the allegations contained in the complaint to go to the jury. ’There is no dispute as to the price of the goods having been agreed upon, there is no evidence as to any other value, there is no dispute but that all the dies were manufactured by the plaintiff, and that they were delivered to the defendant, and no evidence that they were returned to the plaintiff, and undisputed evidence that before the bringing of this action the defendant had refused, on some ground, to deliver the dies to the plaintiff upon demand. This is conclusive upon the defendant that the plaintiff was entitled to recover the full amount of the agreed price (Sprague v. Blake, 20 Wend. 61; Gaylord Co. v. Allen, 53 N. Y. 515; Bristol v. Burt, 7 John. 254; Connah v. Hale, 23 Wend. 462 ; Boyce v. Brockway, 31 N. Y. 490 ; Kingman v. Hotaling, 25 Wend. 423 ; Camp v. Pulver, 5 Barb. 91; Roth v. Palmer, 27 Ib. 652 ; Benjamin on Bales, § 1051). And the remedy left to the defendant was under either his implied or, as alleged, express warranty, and his counterclaims for money paid, on account, in excess of the value of the articles, and damages for the non-fulfillment of the contract within the time specified. The title to the dies was in the plaintiff even after he had delivered them to the defendant, until the defendant had reasonable time within which to examine them, or had formally examined them, or had exercised some act of dominion over them (See cases cited). But the act of refusing to deliver the goods, no matter on what ground it had been placed, at once transferred the title from the plaintiff to the defendant, subject, perhaps, to a vendor’s lien, and prevented the defendant from ever afterwards claiming that he had not accepted the goods (See cases cited). And it made little or no difference afterwards whether he offered to return them or not (Livermore v. Northrup, 44 N. Y. 107; Carpenter v. Manhattan Co., 22 Hun, 47). Thereupon the plaintiff had the right to bring his action for the value of the goods, or for conversion of them, or for the agreed price (See cases cited). And a sufficient causo of action is set out in the complaint to recover for their value (Dubois v. Delaware Co., 4 Wend. 285 ; Woodward v. Fuller, 80 N. Y. 312 ; Higgins v. Newtown R., 66 Ib. 604).
    II. There is no counter-claim in the answer for breach of warranty either expressed or implied, but only for damages for the. non-fulfillment of the contract on the plaintiff’s part by his failure to deliver the goods by January 1. The onus was upon the defendant to have proven what his damage was by the delivery of the goods in their present condition, which he wholly failed to do (Fales v. McKeon, 2 Hilt. 53). And the alleged damage, viz. : of prospective profits, which defendant attempted to prove, could not have been considered by the jury if he had been allowed to put in the evidence (McColl v. The W. U. Co., 12 J. & S. 487; Griffin v. Colver, 16 N. Y. 489 ; Cassidy v. Le Fevre, 45 Ib. 562 ; Washburn v. Hubbard, 6 Lans. 11). But there was a further reason why the defendant could not recover on this counter-claim ; he consented that the goods be returned to the plaintiff to be corrected, after the alleged time that they were to be delivered, Without any restrictions or agreement of any kihd, and accepted them thereafter, and thereby he waived any damage that he may have actually suffered by reason of the failure to deliver within the agreed time (Bock v. Healy, 8 Daly, 158).
   By the Court.

Ingraham, J.

The dies and medallions were delivered to the defendants in November and December, 1881. They were not satisfactory, and were returned to plaintiff to be improved. Plaintiff attempted to improve them, and finally delivered them to defendant a day or two before February 8, 1882. On February 8, the plaintiff called on defendant and presented a bill for the articles delivered, and demanded payment, Defendant said they were not satisfactory, did not conform to the contract, and that he would not pay for them.

So far the evidence is undisputed. Plaintiff testified that three or four days after the presentation of the bill he called again on defendant and demanded payment of the bill or the return of the dies ; that defendant refused to pay or deliver the dies.

The defendant testified that he was not present at the second demand, but that he was telephoned to from the factory that Mr. Norton had come or had sent for the dies, and that he, defendant, telephoned back not to deliver' them, that he wished to have counsel’s advice as to how he should act in the matter.

The facts that defendant had refused to pay the bill, and demand was made for the return of the property, which was refused, were not disputed. Nor was there any evidence to show that at any time defendant offered to return the dies to plaintiff until February 14, the day the summons was served.

The rule is well settled by a long line of authorities, that in an executory contract for the manufacture and sale of goods, an acceptance of the goods after an opportunity to examine them, is a consent and agreement that the quality is satisfactory. The purchaser must return or offer to return the goods at once (Gurney v. The Atlantic and Great Western R. R. Co., 58 N. Y. 358 ; Gaylord M’f’g. Co. v. Allen, 53 Ib. 515 ; Reed v. Randall, 29 Ib. 358; Parks v. Morris Ax and Tool Co., 54 Ib. 586 ; McCormick v. Sarson, 45 Ib. 265).

The fact that he objected to the quality of the goods and refused to pay is not an offer to return or a refusal to accept (Heydecker v. Lombard, 7 Daly, 19).

In this case there was not only no offer to return, but after the objection of the defendant to the quality of the goods, the demand of the plaintiff for the return of the goods was refused,

It cannot be said that this demand of plaintiff rescinded the contract. There had been no offer to return, no claim that the contract should be rescinded. Defendant only refused to pay the purchase price. Plaintiffs then demanded the money or the goods. Defendant had his election to rescind the contract and return the goods, or to hold on to the goods and the contract and claim any damage that he might have sustained for a breach of the warranty. He elected to retain the goods, and the court below was right in holding that the defendant was liable for the purchase price.

The acceptance of the goods did not prevent the defendant, in an action for the contract price, from setting-up as a counter-claim and recovering any damage that he sustained by reason of a breach of a warranty (Day v. Pool, 52 N. Y. 416).

This fact must be alleged and proved as a counterclaim in favor of the defendant and against the plaintiff, and not as a defense to an action for the purchase price. In this case, no such counter-claim was pleaded in the answer. ■ Defendant as a defense alleged that the goods were not as warranted, and an offer to return, but this they failed to prove.

The defendant, as a counter-claim, did allege that plaintiff promised to furnish the dies by January, 1882, and that, by the failure to make such delivery at such time and in time for the spring season, he sustained damage to the amount of $2,000. No damage for breach of this agreement was proved, and the court was, therefore, right in holding that plaintiff was only entitled to recover for such breach nominal damage.

The letter of February 14,1884, was dated on the same day that the summons was served. No proof appears to have been offered that it was ever sent to the plaintiff. Plaintiff was asked, on cross-examination, whether he had received a letter from the defendant. The question was •objected to, and it does not appear that any ruling was made on the objection, or that the question was answered.

This disposes of the questions raised, and as there was ■no error in the ruling of the court below, the judgment should be affirmed, with costs.

Sedgwick, Ch. J., and O’Gorman, J., concurred.  