
    Sidney B. Roby, App’lt, v. Thomas J. Reynolds, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Sale—Waiver of damages for delay m delivery of goods.
    In an action to recover the agreed price of harness sold by plaintiff to-defendant, the answer admitted the sale and delivery, but set up as a counterclaim damages by reason of delay in their delivery. It appeared that when the goods were completed defendant declined to examine them for lack of time and directed them sent to him, and afterwards sent his check for the price of the goods, less a small deduction for some parts claimed, he missing. Feld, that this evidence showed a waiver of any claim for delay, and that the court erred in submitting the question of counterclaim to the jury.
    Appeal by the plaintiff from a judgment of the county court-of Monroe county, entered on the verdict of a jury, and from an order denying plaintiff’s motion for a new trial on the minutes^ of the court.
    
      E. Van Voorhis, for app’lt; E. A. Nash, for resp’t.
   Dwight, P. J.

The action was to recover thé sum of $160, being the agreed price of five sets of double harness sold and delivered by the plaintiff to the defendant. The answer admitted the sale and delivery of the harnesses and alleged, 1st, as a defense, a breach of warranty of the quality of the goods, and, 2d, as a counterclaim, damages by reason of delay in the delivery of the goods.

The evidence showed that, some months before, the defendant had bought of thé plaintiff one set of double harness made at Clyde, and that the bargain in this case was for five sets of similar harness to be made at the same place. There was evidence on the part of the defendant which tended to show that it was warranted by the plaintiff that the harness should be in all respects like the former set, and of number one oak tanned leatheralso that the plaintiff was informed, at the time, that the harnesses were to be used in the business of lumbering in Pennsylvania, on a lot of horses which the defendant had bought in Canada, and which would be delivered in one week from that time, and that the plaintiff agreed that the harnesses should be delivered in one week. The counterclaim was for damages by reason of a delay of seven days or more in the delivery of the harnesses after the horses had arrived. Evidence was received, under the objection of the plaintiff, tending to show that the work of five men and teams, rendered idle for want of the harnesses, was worth twenty dollars a day, and this evidence was submitted to the jury under the exception of the plaintiff, as possible ground of a counterclaim of $140, viz.: twenty dollars a day for seven days, and this was the amount of the counterclaim allowed by the jury. The verdict was for the plaintiff for twenty dollars, and the defendant had judgment for the balance of his costs, after deducting that sum.

We think the learned county court erred in submitting the counterclaim to the jury under the evidence in the case as to what took place at the time the harnesses were accepted by the defendant. That acceptance, it is true, was qualified in respect to the quality of the goods, but was without any qualification in respect to the time of their delivery. As was to have been expected, the evidence was directly conflicting on the question of the time when the harnesses were to be completed and delivered, but the undisputed evidence is that after they were completed, and the defendant notified, he went personally to the store of the plaintiff, where the harnesses were exhibited to him in the boxes in which they had come, and he was invited to inspect them. This, he himself testifies, he declined to do, as by doing so he would lose a train which he wished to take, but consented that the harnesses should be shipped as they were, if the plaintiff’s salesman would warrant them in every respect. He testifies “ He, the salesman, said he would warrant them to be A No. 1 oak tanned leather; if not, they would make them good or take them hack, and I said to have them shipped.” Here was, so far as the time of delivery was concerned, an absolute and unqualified acceptance of the harnesses, without any complaint of delay, or intimation that such cause of complaint existed; and it is shown by further undisputed evidence, that the defendant afterwards sent to the plaintiff his check for the price of the harnesses, less only a small deduction for some straps, or parts which were said to be missing. We think this evidence shows a waiver of any ■claim for delay. If any such claim existed, the grounds of it were fully known to the defendant at the time, and so far as appears were entirely unknown to the plaintiff. It was the duty of the -defendant, then, to make it known to the plaintiff, if he intended to rely upon it. It is not to be supposed that the plaintiff would have parted with the property if he had had reason to suppose that the defendant was to make a claim thereafter for nearly the entire price of the goods for previous delay in their delivery. We think the acceptance of the goods at the time shown by the evidence, without complaint or suggestion of any violation of the contract in respect to the time of delivery, was a waiver of such ground of complaint if any then existed; and the subsequent offer of payment, in the regular course of business, without mention of any such drawback, was an apparent admission either that no such ground o£ complaint existed, or that it had been conclusively ■ waived.

For the error involved in the submission of this cause of counterclaim to the jury upon the evidence as it stood, the judgment should be reversed and a new trial granted.

Judgment and order of Monroe county court appealed from reversed, and a new trial granted, with costs to abide the event Macomber and Lewis, JJ., concur.  