
    Hugo E. Boessneck et al., Respondents, v. The William Taylor Son & Co., Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Effect of failure to inspect goods sold on sample within reasonable time — Failure to inspect goods is waiver of implied warranty.
    The defendant wh'en sued for the price of goods, sold by sample and delivered, counterclaimed the value of certain goods returned by its customers as defective. It was shown that the defendant retained the goods six or seven months without inspection and did not attempt to return the same as defective until refused by its customers.
    Held, that upon sale and delivery it was the duty of the vendee to examine the goods within a reasonable time and if found not to comply with the sample to rescind the contract. As it was shown that the goods could have been examined within two days after delivery a delay of some months in making such inspection is a failure to inspect within a reasonable time and such failure is not excused by proof that the inspection would have been inconvenient.
    Where there is no claim of an express warranty which survives acceptance such failure to inspect is a waiver of any implied warranty.
    Appeal from a judgment of the City Court of the city of Hew York, entered on the verdict of a jury under direction of the court in favor of plaintiffs.
    Goodwin, Thompson & Vanderpoel (Henry Thompson, of counsel), for appellant.
    Epstein Brothers (Jesse S. Epstein, of counsel), for respondents.
   Gildersleeve, J.

The action is for goods sold and delivered between March 16, 1902, and May 9, 1902. The sale, delivery and nonpayment are conceded. The defense is based upon a counterclaim arising out of a transaction had about a year previous, and presents the only issue tried.

In June, 1901, plaintiffs sold and delivered to defendant, a corporation, by sample, certain summer goods known as “ mercerized grenadines,” a portion of which defendant in turn sold by sample to other dealers. The goods themselves were delivered in November, 1901, and were paid for on May 5, 1902. No express warranty is pleaded. No fraud is alleged nor is it charged that the goods contained any latent defects. The goods were forwarded by defendant to its customers without, any inspection by the defendant, until some of the goods were returned by the customers, as not up to sample, in April, 1902, when defendant examined the goods for the first time, and found them defective. Nevertheless the defendant paid for the same on May 3, 1902, because the parties were constantly dealing together, and, as claimed by defendant, defective goods could be returned and a claim therefor be made against another and subsequent invoice. On May 14, 1902, defendant returned 'to plaintiffs the goods that had not already been sold to its customers and accepted by them, but plaintiffs refused to accept such returned goods. Defendant, thereupon, offset these returned goods against what it owed for goods subsequently sold and delivered by plaintiffs to defendant/ for which the plaintiffs sue to recover in this action. At the close of the trial the plaintiffs moved for the direction of a verdict on the ground that it appeared from defendant’s own testimony that it had kept the goods six or seven months before returning or attempting to return any portion thereof, although defendant’s witnesses admitted thé inspection could have been made in three days, and that, therefore, defendant had not acted within a reasonable time. The defendant moved to have the question of reasonable time submitted to the jury, with all the other issues raised. The court granted plaintiffs’ motion and directed a verdict for the amount claimed. Defendant appeals.

We assume, for the purposes of this opinion, that the goods were sold by sample. The defendant’s representative testified as follows as to the cause for the delay in examining’ and returning the goods, viz.: “ Q. State to the Court and jury why it was that these goods had not been examined by you until they commenced to be returned by the parties to whom they were sold by sample ? A. Because the nature of the goods is such that they are used only during the hot weather, all summer; and while we sell them at the same time that we do the heavier goods, we don’t put them in stock and open up the pieces. We sell them before the first of the year, taking orders on them on samples, and open the cases, and fill these orders, by number, the goods being paid for. The reason we don’t open them up is that we have so many cases of similar goods that it would be impossible for us to open the pieces when we are originally filling the orders, say in December or the first of January. Later on, when these goods begin to return, we put them in our stock for the people who come to buy them from hand to mouth, buy them when they are going to sell them again, and write us, the people who do not place advance orders; and then we have to open the pieces and ship people the goods in the piece and not by the sample, and then is the first time we really see what these goods look like. We receive so many thousand cases of goods in November, December and January that for us to examine those goods would make it impossible for us to do a jobbing business on the margin of business it is necessary to do it on. When we place advance orders and sell by sample, we only do it with reputable houses we can trust, so if anything appears wrong later there will be no question about those goods.”

The general rule is that upon the sale and delivery of goods, it is the duty of the purchaser to examine them upon their arrival, or within a reasonable time ” thereafter, and, if they are found not to comply with the sample as to kind and quality, to rescind the contract promptly, and return the goods. But what' is “ reasonable time ” is a question of fact to be determined upon the circumstances of the case, ■including the situation and liability to injury of the vendor by delay in returning the goods, the convenience and necessity of the vendee, and customs of the trade, and in general the surrounding facts and circumstances of the case.

Let it be borne in mind that the goods in question were sold to the defendant in June, 1901, billed in October, and delivered in November of. the same year; that the alleged defects first became known to the defendant in April, 1902; that they were paid for by the defendant on May 5, 1902; that the defendant disposed of a portion of the goods, and, when sued for a debt subsequently contracted, counterclaimed damages alleged to have been sustained by reason of the defects in said goods.

Under the circumstances it was the duty of the defendant to inspect the goods within a reasonable time after delivery, if it wished to avail itself of any defects in quality. No question was presented as to what was a reasonable time in which to inspect the goods after delivery. This question was eliminated by defendant’s own proof. It was established by the testimony of the defendant’s witnesses that it had ample opportunity, even months, in which to inspect and examine the goods, and that all defects would have been discovered within two days. The failure to inspect is not excused by the proof that inspection was inconvenient. There is no claim of warranty that survived acceptance.

The defendant retained and paid for the goods after full opportunity to ascertain their quality and character, and is barred from all claim for compensation for any defects contained in the goods. There was acceptance and waiver of any implied warranty. De Bavier v. Funke, 50 N. Y. St. Repr. 442; Dounce v. Dow, 64 N. Y. 411; Hooper v. Story, 79 Hun, 53; 155 N. Y. 171; Gurney v. Atlantic R. Co., 58 id. 358.

The pleadings and testimony presented no question for consideration by the jury and the learned trial judge properly directed a verdict in favor of the plaintiffs.

Judgment affirmed, with costs to the respondents.

MacLeau, J., concurs, Fkeedmau", P. J., taking no part.

Judgment affirmed, with costs to respondents.  