
    The E. T. Burrowes Co., Appellant, v. The Rapid Safety Filter Co., Respondent.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Sales — Warranties — Implied warranty — On an executory contract: Waiver of defects by purchaser — Acceptance as waiver; necessity of return or offer to return.
    Pleading — Matters relating to pleadings generally — Conclusions of law — Mon-compliance with statute.
    Saving questions for review — Objections and exceptions in general — necessity: Motions — For non-suit must specify defects.
    An order on the manufacturer for a certain number of window screens, of a specified style, wood, color and netting, given on condition that delivery should be made by a certain date, is simply an executory contract of sale with an implied warranty that the screens should be merchantable and free from any defect arising from the process of manufacture or the use of defective materials not discoverable by ordinary inspection and tests; and, where the only claim is that the screens did not correspond with the contract, "the vendee may not keep them and claim damages or refuse to pay for them.
    If, upon inspection within a reasonable time after their arrival, the screens were found not to comply with the contract as to quality or kind, it was the vendee’s duty to promptly rescind the contract and either return or offer to return them; and the fact that he complained of the vendor’s failure to make them according to contract does not amount to a rejection or to an offer to return them.
    An acceptance of the screens without objection long after the-stipulated time for their delivery is a waiver of all objections to their delivery after the time .agreed upon, and where the evidence as to such acceptance is received without objection, an objection that, no waiver being pleaded, the evidence is inadmissible may not be taken for the first time upon appeal.
    An answer that a foreign corporation, plaintiff, has not complied with certain provisions of the General Corporation Law, being merely a conclusion, is not admitted by a demurrer.
    In the absence of an exception thereto, a denial of a motion for judgment upon the pleadings is not reviewable on appeal.
    A motion for a non-suit or to dismiss a complaint must specify the defects supposed to exist.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, first district, borough of Manhattan, dismissing the complaint but without prejudice to a new action.
    Maxson & Jones (Henry L. Maxson of counsel), for appellant.
    Myron H. Oppenheim (Charles H. Mundy of counsel), for respondent.
   Giegerich, J.

This action was brought to recover the agreed price of twenty-five window screens made by the plaintiff and delivered by it to the defendant, pursuant to the-latter’s written order. The answer was a general denial; and, for a second and separate defense, it is alleged, in substance, that the plaintiff was a foreign corporation, doing business within this State; that the action was brought upon a contract made within this State and that the plaintiff had not complied with certain provisions of the General Corporation Law.

The plaintiff demurred to such affirmative defense, but the demurrer was overruled with costs. The action was then brought to trial, at which, before any testimony was taken, the defendant moved for judgment on the pleadings, which motion was denied. The evidence consisted of the testimony of the agent who took the order and of the plaintiffs New York manager, the order in suit and three letters written either by or on behalf of the defendant to the plaintiff.

The order referred to is dated April 27, 1904, and is for twenty-five window screens for inside use of a specified style, wood, color and netting; and, on the back thereof, appears written in black pencil: “ Order given on condition that delivery be made by May 15th.”

The plaintiff conceded on the trial that the screens were not delivered until sometime in June, 1904, and it offered .n evidence, without objection, a letter from defendant to the plaintiff, dated September 2, 1904, which reads as follows:

“ We herewith return to you your statement amounting to $47.86 and beg to state that we will not honor the draft which you have made on us on the Citizens National Bank. Our reasons are as follows: The screens were ordered in the month of May by our president, Mr. Myron H. Oppenheim, to be placed in the early part of June. The screens were delayed in shipment and did not arrive until the early part of June. Your New York office sent a man to put them up; he worked half a day and did not complete a single screen, in fact, half of them were never brought to the windows at all. On the 2nd day of July, we wrote your New York office to this effect, and requested them to send a man immediately, if they desired us to keep the screens. This they did not do and we wrote them again the first part of August. In the latter part of August a representative of the New "York office called, and yesterday, September 1st, they sent a carpenter here, who fitted the screens to the windows. The screens themselves are not as Mr. Oppenheim ordered and are very cheap looking affairs, and as they have been of no use to us all summer, and now the summer is gone, and it is time to take them down, we do not care to honor your drafts or pay your bills, as the matter will have to be placed before the president, Mr. Oppenheim, who is at this time in Europe and will not return until September 30th.

“If you take the trouble to investigate the matter you will find the conditions are correctly stated.”

A letter of the defendant president, dated February 14, 1905, was also put in evidence by the plaintiff, in which he complains that the screens were not delivered on Hay fifteenth, saying: “ I left fór Europe the latter part- of June, and they were not put up at that time nor were they put up lor several months thereafter, at a time when we had no use for them, the summer being practically over, so that even if your contention, which I deny, is correct that they were made according to order, the fact that they were not delivered according to the time agreed upon, and that the order was a conditional one, to wit: — order given on condition that delivery be made by Hay 15th’, you will see at a glance that you cannot recover.

“ I have had. no use of the screens and will not have until next summer if then,' and I therefore say to you that if you> have any fair and equitable proposition to make with respect thereto, I will be glad to entertain. If, however, you feel that you have a good cause of action against me and do not care to make any proposition other than heretofore made by you, you may proceed and I will be glad to have the court decide between us.”

The plaintiff also put in evidence a letter of the defendant to it, dated August 11, 1905, in which it is stated: “Regarding the amount of your account against us for $41.86, we wish to say that if you will kindly forward us an itemized bill of this account,, we will be pleased to check the same in return therewith.”

Hr. Helson H. Peppier, the plaintiff’s Hew York manager, testified that he had a conversation with Hr. Oppenheim, the defendant’s president, some time in the winter of 1904, at the defendant’s office in Hew York city, during the course of which he told him that the general office of the company had written him to call for the purpose of effecting a settlement of the account, and that -the defendant’s president advised him “ that the screens, in workmanship and materials, were not according to the contract, and he didn’t intend to settle the account in full”. This witness further testified that he saw some of the screens in the windows of defendant’s place of business and that, in the summer of 1905, he was told by Mr. Harding, the manager of the defendant, at its office, that the president of the company was not in the city at the time, and that he knew of no reason why the screens should not be settled for, as they had been in use in the windows for some time.

At the close of the plaintiff’s case, the defendant moved to dismiss the complaint on the ground that “ the plaintiff has not made out a cause of action, and the evidence shows that the contract is breached on the part of the plaintiff in not complying with the conditions contained in the order in delivering the screens in question, to be delivered on Hay 15, 1904, and because of the fact that, even when the alleged delivery was made, September 1st or 2nd, it does not appear that defendant accepted same as a good delivery”. Counsel for the plaintiff contended that there was a waiver by the defendant of the time specified in the contract, “ first, in receiving the screens in the month of June, as shown by the defendant’s letter, second, in permitting the carpenter of the plaintiff to actually fit the screens to the windows, and, thirdly, on the further ground that the screens have not been returned to the plaintiff.”

The justice thereupon dismissed the complaint, without prejudice to a new action, and the plaintiff excepted. Such ruling seems to have been made upon the theory, as may be assumed from' the justice’s remarks immediately preceding it, that there was no waiver as to the time of delivery and the quality of the goods.

The defendant contends that there was an “ express warranty, both as to time of delivery and the quality of the goods, which were to be paid for only if according to a certain description referred to in the order ”. This brings us to a consideration of the question whether the transaction in suit constitutes a sale by sample, or a sale by description.

It is well settled by numerous decisions that, in order to constitute a sale by sample, it must appear that the parties contracted solely in reference to the sample exhibited and mutually understood that they were dealing with it as an agreement or understanding that the bulk of ,the commodity corresponded with it. Beirne v. Dord, 5 N. Y. 95; Smith v. Coe, 170 id. 162; Henry & Co. v. Talcott, 175 id. 385; New York Hydraulic P. B. Co. v. Gunn, 43 Misc. Rep. 330.

Applying the principle of these decisions to this case, it is plain that there was not a sale hy sample. The record is barren of any evidence that any sample "yas shown or that the parties ever referred to one when the order was given. All it shows is that the order was received from the defendant and forwarded by the plaintiff’s Hew York manager to the home office and factory of the plaintiff in Portland, Maine.

There being then no sale by sample, the defendant cannot invoke the remedy afforded by an express warranty which generally survives the acceptance of the article by the vendee.

The transaction between the parties, as I construe it, was simply an executory contract of sale by a manufacturer of the article sold, and, under the circumstances presented, there was only an implied warranty that the article should be merchantable and free from any defect arising from the process of manufacture or the use of defective materials not discoverable by ordinary inspection and tests. Bierman v. City Mills Co., 151 N. Y. 482.

Since there is no claim in this action that the screens had any latent defects, the cases where a manufacturer is held by an implied warranty against such defects are not applicable. The defendant, in this situation, had only the usual rights of a vendee under an executory contract for the sale and delivery of personal property, where the article furnished fails to correspond with the contract, which do not include the right to keep the property and claim damages or to refuse to pay therefor. Reed v. Randall, 29 N. Y. 358; Mason v. Smith, 130 id. 474; Waeber v. Talbot, 167 id. 48; Smith v. Coe, supra; Richardson v. Levi, 69 Hun 432; Wallace, Muller & Co. v. Valentine, 10 Misc. Rep. 645; National Keg & Box Co. v. Baker, 21 id. 35.

As already seen, as early as September, 1904, the defendant knew that the screens did not conform to the order; and, notwithstanding knowledge of such defect, it never returned nor offered to return them. It is true, the defendant complained of the failure of the plaintiff to make such screens according to contract, but that did not amount to a rejection or to an offer to return the goods. Mason v. Smith, supra; Richardson v. Levi, supra.

As was said in Mason v. Smith, supra, at page 480: “ It became the duty of the defendants on the arrival of the goods, or within a reasonable time thereafter, to examine them and determine whether or not they were of the kind and quality ordered, and if they were found not to comply as to quality and kind, to promptly rescind the contract, and either return -or offer to return the goods to the plaintiffs.”

The defendant insists, moreover, that, since the order was given upon the express condition that it be filled before May fifteenth, such condition made time the essence of the contract, and that fulfillment after such time will not hold it, the purchaser. The evidence shows, however, that the screens were delivered long after the stipulated time, without objection on the part of the defendant, and hence it must be ■deemed to have waived all objection to their delivery after ■the time agreed upon. Beck v. Healy, 8 Daly, 156; Dunn v. Steubing, 120 N. Y. 232; Soltau v. Goodyear Vulcanite Co., 12 Misc. Rep. 131; Toplitz v. King Bridge Co., 20 id. 576.

The defendant contends still further that, if the plaintiff intended to rely upon the waiver, it should have been •pleaded, which was not done; but all evidence relating to "this subject was introduced upon the trial without objection ■on the part of the defendant and, as it was one of the main issues tried, it is now too late to raise such objections on appeal. Fallon v. Lawler, 102 N. Y. 228; Bicknell v. Speir, 7 Misc. Rep. 108; Collins v. Butler, 179 N. Y. 156.

It is further argued that, inasmuch as the plaintiff demurred to the second affirmative defense, and as the demurrer was overruled and no leave was obtained by the plaintiff to withdraw the same, the defendant was entitled to judgment, and that the justice made a proper disposition •of the motion to dismiss the complaint.

The portion of the answer referred to, reads as follows: “As and for a second affirmative defense, the defendant -alleges, upon information and belief:

“First: That plaintiff is a foreign corporation, doing business within this State.

“ Second: That the action is brought upon a contract made within this State.

" Third: That the plaintiff has not complied with sections 15 and 16 of the General Corporation Law of this State, or with section 181 thereof, being Laws of 1892, chapter 687 and the amendments thereof, Laws of 1896, chapter 908, section 181, and amendments thereof ”.

The record discloses that, at the opening of the trial, the ' defendant moved for judgment on the pleadings, without specifying any grounds.

No exception was noted by the defendant to the denial of such a motion and, consequently, such ruling cannot become the subject of review on appeal. Hard v. Ashley, 117 N. Y. 606; Machauer v. Fogel, 21 Misc. Rep. 637.

Moreover, the allegation contained in the third paragraph of the part of the answer above .quoted is a mere conclusion and, therefore, not admitted by the demurrer. Greeff v. Equitable Life Assurance Society, 160 N. Y. 19; Frank v. Mandel, 76 App. Div. 413.

The defendant finally argues that the first two allegations of the affirmative answer were admitted by the failure of the plaintiff to withdraw the demurrer and that, in consequence thereof, the latter cannot maintain this action without producing a certificate pursuant to the statutory provision above mentioned.

It will not be necessary to pass upon that point, however,, as the defendant did not move to dismiss the complaint upon any such ground.

A motion for a nonsuit or to dismiss the complaint, to be effectual, must specify the defects supposed to exist (Quinlan v. Welch, 141 N. Y. 158, and citations), the reason of the ruling being stated in the opinion of the court in the case just cited (p. 166) to afford an “ opportunity to supply additional proofs where it is .possible.”

In the present case, the proof which it is said was not presented might have been supplied without difficulty, in case it had been held that it was necessary for the plaintiff to supply, and the objection might thus have been obviated.

It follows from the views above expressed that the dismissal of the complaint was error.

The judgment should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Scott and Geeenbaum, JJ., concur.

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