
    Francis G. Hall, Jr., Doing Business under the Trade Name and Style of Naval Electric Company, Respondent, v. Henry C. Pierce, Appellant.
    
      Bight of a vendee of a gun, receiving a circular stating ‘ ‘ if the gun does not give perfect satisfaction you may return it,” to return it.
    
    Francis G. Hall, a dealer in naval supplies, sent to Henry C. Pierce, a yacht owner, a circular, which, after referring to the latter’s intention to purchase a yacht, gun, stated, “We will ship you one of our guns of such size as you may select with our standard deck mount or any special mount you may prefer, and if the-gun does not give perfect satisfaction you may return it.”
    
      Thereafter the captain of the yacht personally interviewed Hall relative to the purchase of a gun. He inspected some guns, but, as they did not suit him, he, and Hall went to another dealer. The captain there found a gun which he. thought was of a suitable pattern and instructed Hall to write him a letter embodying the particulars of this gun, to the end that the matter might be-, submitted to Pierce for his further consideration.
    Thereupon Hall addressed him a letter, stating as follows: “We enclose herewith particulars of B. & H. Hotchkiss Type Yacht Cannon No. 2, Length of' gun proper 50", with shoulder piece 55", Bore If", length of shell 5", charge £ lb., height of deck mount 36", dia. of base 21£, bolts 7 threaded whole length rubber deck stand gasket, etc. We could have the guns and ammunition, aboard your boat within about two days from receipt of order. Hoping to be favored with your valued order, we remain * *
    In reply to this letter Pierce sent Hall the following telegram:
    “ Ship immediately by express care Yacht Tocona, National Dock East Boston, Mass., two B & H Hotchkiss type yacht cannon number two described in your letter July fifth to Captain Harding wire Captain Harding of shipment. H. C. Pierce.”
    When the guns arrived Pierce declined to receive them on the ground that they were not satisfactory, and returned them to Hall.
    
      Held, that the arbitrary right conferred on Pierce by the circular first sent to him by Hall, to return the guns if they were not satisfactory to him, was not abrogated by the captain’s visit to Hall or by the subsequent transactions between, the parties;
    That Pierce had the right to reject the guns after inspection, regardless of' whether they conformed to the pattern gun approved by the captain, or ■whether they were such as should have satisfied a reasonable man.
    Appeal by the defendant, Henry C. Pierce, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of December,. 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of January, 1903, denying the-defendant’s motion for a new trial made upon the minutes.
    The action is to recover $644.50, the price of yacht guns alleged to have been sold to the defendant. The answer admitted the purchase, but averred that it was upon the condition that the goods, should give perfect satisfaction or be returned, and that upon immediate inspection when received they were found to be unsatisfactory and worthless and were returned.
    The defendant is the owner of a large pleasure yacht Taoona, and in May, 1902, received from the plaintiff a circular letter dated the twentieth of that month wherein, after referring to the defendant’s intention to purchase a new gun, it was said: “We will ship you one of our guns of such size as you may select with our standard deck mount or any special mount you may prefer, and if the gun does not give perfect satisfaction you may return it. We do not do this because we believe the gun will not be returned, but we desire to mount the gun and feel sure yon will not care to displace it. Our experience proves this. If you will provide us with the shipping address of your yacht we will ship one complete on approval as above. How is the time we have the guns in stock and can do this, later in the season it would be impossible, so we solicit your early reply.”
    In July, 1902, on or about the first of the month, Frank Harding, the captain of defendant’s yacht, personally interviewed the plaintiff relative to the purchase of cannon and saw some guns, but they were not what he was looking for as to size, and they went together to the Marine Supply Company where a gun was shown him similar to the one he intended to buy. Thereupon at the captain’s request the plaintiff addressed him a letter dated July 5, 1902, stating: “We enclose herewith particulars of B. & H. Hotchkiss Type Yacht Cannon Ho. 2, Length of gun proper 50", with shoulder piece 55", Bore If", length of shell 5", charge f lb., height of deck mount 36", dia. of base 21£, bolts 7 threaded whole length rubber deck stand gasket, etc. We could have the guns and ammunition aboard your boat within about two days from receipt of order Hoping to be favored with your valued order, we remain * * Inclosed was a circular price list.
    In reply the plaintiff received the following telegram, dated July 7, 1902: “Ship immediately by express care Yacht Yacona Hational Dock East Boston, Mass., two B & H Hotchkiss type yacht cannon number two described in your letter July fifth to Captain Harding wire Captain Harding of shipment. H. C. Pierce.”
    The following day the plaintiff wrote to Mr. Pierce: “ As per your order by telegraph of to-day we are sending you by express from our factory * * * Yacht Cannon. * * * Thanking you for the order,” etc. On July fourteenth the plaintiff telegraphed Captain Harding: “We have shipped guns as per your instructions this afternoon.” The following day a bill was sent to Mr. Pierce for $644.50, the agreed price of the guns and ammunition sent.
    
      On July seventeenth Captain Harding wrote the plaintiff: “ The cases containing the guns received to-day. The stands are about the poorest castings I ever saw; they might answer for a canal boat but not for a yacht, and I am very much surprised you should send us such imperfect work. The barrel seems to be of different material than the breech; the arm rest is of mahogany and should be of gun metal and does not fit in place. I refuse to accept such imperfect work and wish to know if you can replace these with perfect guns at once; if not I shall be obliged to express these to you. This is very annoying and I cannot understand your reason for doing this kind of work.” July twenty-first the plaintiff replied to the captain: “We regret to learn that the castings are not satisfactory to' you. We shall send you two new deck stands complete now in process of construction at our factory to replace your present ones just as soon as they are finished. We do not supply the gun metal shoulder piece with these saluting guns but are having two made for you to take the place of the present mahogany ones.” In a postscript was added: “You can mount the guns temporarily with present deck stands and paint them to suit,” etc. To this letter Captain Harding on July twenty-second responded, saying that the letter was placed before Hr. Pierce, who had instructed him “ to express the guns to you and they will be sent to Arlington to-night. Hr. Pierce will not have them on account of their inferior quality and owing to the unsatisfactory conditions. You need not send any more. * * * You need not have anything made for account of Yaoona. The barrels of these guns are of different metal than the breech and are brazed in. I shall express the guns to-night and consider the subject closed.” On July twenty-third the plaintiff wrote to Hr. Pierce, saying: “ Your letter of the 22nd inst. stating that you are going to ship two yacht cannon and equipment back to us'by express received. We shall hold these guns when received subject to your order.”
    The guns were shipped, but the plaintiff declined to receive them from the express company, whereupon they were stored.
    Upon the subject of the condition of the guns it was testified by the plaintiff that they were of good workmanship and in good order and as perfect as castings could be made; that the guns were examined before leaving the factory and were lubricated and worked all right; that they were similar and equal to the gun which had been shown to Captain Harding the first of July; that although there were some small sand holes in the brass, this was common to-all such work and was to be expected. The defendant’s testimony, on the other hand, is that the guns were rough and ragged and the castings imperfect in that they were not smoothed down and that they had sand holes which marred their appearance; that they were unlike the gun which had been shown to Captain Harding and that the breech of one of them did not work and could not be moved by the lever. When questioned as to this defect the plaintiff said that the guns had been all right and in working order when sent and packed and that they should work all right, but that a screw might have been loose. The defendant complained that the gun body and the barrel were not of the same material, but the plaintiff replied that they never are, one being slightly darker than the other.
    Motion to dismiss the complaint was denied and exception taken. The court charged that if the refusal to accept the guns was merely arbitrary, then the plaintiff might recover; but that if there were, defects, and the brass was rough and there were sand holes and imperfections, as “ described by the defendant’s witnesses,” the plaintiff might not recover. To the part of the charge referring to-arbitrary rejection the defendant excepted. The jury returned a. verdict for the plaintiff for the sum demanded, and from the judgment so entered the defendant appeals.
    
      Richard Reid Rogers, for the appellant.
    
      Richard S. Newcombe, for the respondent.
   O’Brien, J.:

The crucial question upon this appeal is, had the defendant the right when the guns were sent him to reject them after inspection regardless of whether they were such as should have satisfied a reasonable man ?

The plaintiff’s theory is that the defendant had no such arbitrary right; and that although the circular letter of May twentieth — which was the means employed by the plaintiff to bring his cannon to the attention of the defendant — left it to the latter to determine after seeing the guns whether he would retain them or, if not perfectly satisfied, return them, the defendant did not act upon such letter, but subsequently sent his captain who interviewed the plaintiff and visited with him the Marine Supply Company and selected a pattern gun and thereafter the rights of the parties depended upon whether or not the guns as shipped conformed with and were ■equal in workmanship to the pattern gun which the captain had ■seen.

If the defendant had gone in person, or if the captain had been ■clothed with any authority, express or implied, so that as agent of the defendant he could thus bind him and the cannon were ordered from a sample or pattern, there might be some force in this contention. It will be noticed, however, that the captain after visiting the store of the Marine Supply Company with the plaintiff and examining a gun which he thought was of a suitable pattern, did not undertake to bind the defendant, but he instructed the plaintiff to write Mm a letter embodying the particulars of the pattern gun, and this was done to the end that the matter might be submitted to the defendant for his further consideration.

Acting upon the description contained in the letter thus written, the defendant sent the telegram directing the jdaintiff to ship the guns, but there was nothing in this telegram nor in the correspondence between the parties that in any way waived the right which was conferred upon the defendant by the letter of May twentieth to return the cannon if not satisfactory to him after inspection. It seems to us that the rights of the jiarties must turn upon whether by what was said, done or written by the defendant’s captain or the defendant himself, the defendant gave up or waived the arbitrary power or right of rejection conferred upon him by the May letter. Although that letter solicited an early reply and stated that later in the season it would be impossible for the plaintiff to ship on approval, there was no attempt on the part of the plaintiff when during the first week in July the defendant’s captain visited him to revoke or modify the conditions of the offer which had been made. To avoid the effect which must otherwise be given to this letter, the plaintiff must stand upon the ground that, regardless of his rights thereunder, the defendant, either himself or through his captain, undertook to purchase the guns after a pattern or from a description, and that if the ones sent him were conformable thereto he was obliged to keep and pay for them.

As we have endeavored to point out, the plaintiff could not, as the result of the visit of the captain, when the pattern gun was shown, from anything that the captain said or did, and which he had the right acting on behalf of the defendant to say or do, change the conditions as to the shipment of the guns, or destroy the right which had been vested in the plaintiff to return them if they did not give perfect satisfaction. After receipt of the May letter it was entirely proper for the defendant to send his captain to examine the stock of the plaintiff, or, as was done, the stock of other firms and companies who had cannon for sale, so that the defendant might have the necessary information upon which he could act in requesting the plaintiff to send the kind of cannon which he was under the May letter entitled to receive for examination, and if not satisfactory to him, return.

This, therefore, was not a sale by sample, nor after a pattern nor by description; for the plaintiff had reason to know, and as it would seem 'from his offer to Mr. Pierce and his visiting him after the cannon were rejected, for the purpose of inducing him to permit certain changes so that he would accept the guns, did know that they were sent subject to the defendant’s approval. The plaintiff, as shown both by the May letter and the subsequent negotiations, took the risk of furnishing cannon which he was to place on board the yacht in a condition perfectly satisfactory to the defendant; and this he said he was, from his experience, confident that he could do. We see no escape, therefore, from the conclusion that having failed to do so, and the defendant having, upon receipt of the guns, promptly rejected them and expressed his dissatisfaction and returned them, it became the plaintiff’s duty to receive the guns back, and he had no right to insist that the defendant should be satisfied with and pay for them.

Upon the subject of the actual condition of the guns there was an unquestioned conflict, the evidence of one side tending to show that the guns were unsuited and of the poorest workmanship, and on the other side that they were of the average kind and in good condition. It is not disputed that there were small sand holes, but the plaintiff’s testimony was that these were common in that kind of work. If the rights of the parties depended upon the solution of the question of the character of the defects, and as to whether or not they were so substantial as to justify a reasonable man in rejecting the cannon as defective, then, as held by the learned trial judge, the question of fact thus presented was upon the evidence for the jury to determine.

We do not think, however, that this issue was controlling, because, as has been pointed out, it was made to appear that the plaintiff opened negotiations through the inducements held out in the letter of May twentieth, which conferred upon the defendant the right of ordering the guns and having them sent for his inspection and approval, and upon his conclusion that they would not give perfect satisfaction, returning them. We find nothing in the subsequent acts of the parties which would justify the inference that the defendant lost or waived such right of rejection, or that the plaintiff had any ground for believing that he was forwarding the guns on terms other than those expressed in his May letter. For this reason, therefore, we think that the trial court was in error in denying the motion to dismiss the complaint, and that such error requires a reversal of the judgment and order appealed from and a new trial, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

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