
    (81 Hun, 128.)
    SMITH v. FOOTE.
    (Supreme Court, General Term, Fifth Department.
    October 17, 1894.)
    Sale by Sample—'Warranty.
    Plaintiff, by letter, inquired the price at which defendant would furnish a quantity of stained glass “like the sample inclosed,” and when-he could furnish it. Defendant answered that he could ship immediately the full amount of glass, “a little lighter than the sample;” that he had on hand some glass “like the sample,” and that he could ship the full amount “of the same shade” within two or three weeks; and gave the price. Plaintiff then ordered the portion on hand to be sent at once,, balance within 15 days, “the glass to be like the sample sent” Held, that the sale was by sample, with warranty that the glass should be of the same shade as the sample. »
    Appeal from circuit court, Monroe county.
    Action by John A. Smith against Henry W. Foote for breach of warranty of goods sold. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
    N. Bull, for appellant.
    E. F. Turk, for respondent.
   DWIGHT, P. J.

The judgment appealed from awarded damages to the plaintiff for the breach of an alleged warranty embraced in an executory contract for the sale of a quantity of stained glass. The contract was by letters which passed between the parties. The plaintiff, at Rochester, wrote the defendant, at New York, inclosing a piece of stained glass, and inquiring for the price at which the defendant would furnish him with 1,500 feet of glass “like the sample inclosed,” and when he could furnish it. The defendant answered that he could ship immediately the full amount required of glass “a little lighter than the sample;” that he had on hand about 600 feet “like the sample;” and that he could ship him the full amount “of the same shade” within two or three weeks, as it would shortly arrive; and he quoted the price at which the glass would be furnished. The plaintiff wrote that the price was satisfactory, and giving the order, provided the defendant would ship the 600 feet at once, and the balance within 15 days; “the glass to be like the sample sent.” This was the contract. It plainly embraced a warranty on the part of the defendant that the glass should be of the same shade of color as that of the sample. The language of the order was “like” the sample sent or inclosed. On the trial the defendant offered evidence to prove that the word “like” had some special meaning in the glass trade." The offered evidence was excluded, and, as we think, properly, because, whatever meaning the word may have had in the general usage of the trade, its meaning as used in this transaction was fixed by the terms of the contract itself. The inquiry was for glass like the sample. The answer was that the defendant had on hand about 600 feet like the sample, but could ship at once the whole 1,500 feet “a little lighter than the sample,” or the whole amount “of the same shade” within a time named; and the acceptance was of the latter proposition. Here the defendant himself makes the clear distinction between glass like the sample and glass only a little lighter in shade, and the contract is closed for glass of the former description only. On the principles so strongly enforced in the case of Zabriskie v. Railroad Co., 131 N. Y. 72, 29 N. E. 1006, this was a sale by sample, and with a warranty which survived the acceptance of the goods. In that case the sample referred to was not present, nor even in «existence, at the time the contract was made, being the coal sold by plaintiff to the defendant, and consumed by it in the previous year; but its qualities had been observed in the results of its use, and these afforded a standard of comparison to which the subject of the later sale should conform. In that case the court of appeals adopted the opinion prepared by their late Chief Judge Buger, in which he .-said: “The principle is well established that upon an executory «ale of goods by sample, with warranty that the goods shall correspond with the sample, the vendee is not precluded from claiming and recovering damages for breach of warranty, although he has .accepted the goods after an opportunity for inspection,”—citing Kent v. Friedman, 101 N. Y. 616, 3 N. E. 905; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51; Gurney v. Railroad Co., 58 N. Y. 358.

In the present case there can be no question that the sale was by sample, and with warranty that the glass should be of one shade-of color, and that the same as of the sample furnished. It was received by the plaintiff in sheets of varying size, which he cut into the sizes required by the work for which it was intended, and set it in the sashes which had been prepared to receive it It was only when the sashes, thus glazed, had been framed in the church windows for which they were designed, and a uniform light was transmitted through the glass, that its defects were first apparent. It was then- discovered to be of several different shades of color, and to present so mottled and variegated an appearance as to be unfit for its purpose. The windows so glazed were rejected by the architect and the committee having charge of the work, and the plaintiff was compelled to take out the glass furnished by the defendant, and supply its place with other and fitter glass, procured elsewhere; and, failing to obtain the allowance of his claim for damages, he paid the defendant’s claim, in an action for the contract price, and brought his own action for the breach of warranty. The action was, no doubt, properly brought and maintained. The plaintiff’s claim on the warranty was not necessarily dependent upon the defendant’s claim to recover the contract price, and was not waived by his failure to set it up as a counterclaim to the defendant’s action. Muller v. Eno, 14 N. Y. 597; Schwinger v. Raymond, 83 N. Y. 198. We are inclined to think that the rale of the measure of damages applied by the court in its instructions to the jury was correct under the peculiar circumstances of the case. It was, in effect, that the plaintiff was entitled to recover the actual damages sustained by him in the use of the glass in question up to the time when he did in fact or ought, in the exercise of reasonable care, to have ascertained that the glass was unfit for the use to which it was put. The ordinary rule on that subject is not of universal application (Swan v. Schieffelin, 134 N. Y. 471, 31 N. E. 1025); and probably the particular facts of this case justified the application of a different rule. But no exception was taken by the defendant to the rule actually applied; and, since it is not apparent that any injustice resulted therefrom, we do not feel called upon to examine that question more fully in this case. There is no other exception in the case which seems to require discussion. The judgment and order appealed from should be affirmed. All concur.

So ordered.  