
    GEORGE C. HOWARD, Respondent, v. GEORGE HAYES, Appellant.
    I. TRIAL, CONDUCT OF.
    1. Right to open and close.
    Answers containing allegations in form affirmative,
    WITHOUT ANY DIRECT DENIAL OR ALLEGATIONS IN FORM DENIALS.
    1. Right to open and close does not belong to the defendant ■ when.
    1. A complaint set forth a contract whereby plaintiff agreed to make, for defendant, a machine capable of performing certain work for a certain price, and all leged the delivery of the machine in pursuance of the agreement; the answer alleged that at the time of making the agreement in the complaint alleged, the plaintiff further agreed that it should be capable of performing the work designated in the complaint, and should be delivered within a certain time, and then affirmatively alleged that the machine was not delivered within the designated time, and that the machine which was delivered was not capable of performing the designated work.
    Held,
    that plaintiff had the opening and closing.
    H. APPEAL.
    1. Motion for new trial on minutes.
    
      (a) Decision denying motion entered on the minutes not
    APPEALABLE.
    1. A formal order of denial must be entered, and an appeal taken therefrom.
    1. Want of order not cured. The fact that the notice of appeal states that the appeal is taken from the judgment and also “ from the order entered herein denying defendant’s motion for a new trial on the judge’s minutes,” does not cure the defect.
    2. Exception, what not available on appeal.
    
      (a) Exception to decision denying a motion for a new trial on the minutes.
    1. It is not available on an appeal from the judgment; nor is such a decision of itself appealable. A formal order must be entered and appealed from.
    
      3. Case not containing all the evidence, effect of.
    
      Assumed by the appellate court, when the question is on the sufficiency of the evidence that that which is not returned warranted the ruling and justified the verdict.
    
    HI. SPECIAL WARRANTY.
    1. What does not constitute.
    (a) Plaintiff wrote to defendant, “ We will make you a perforating machine for No. 32 iron, 30 inches wide, with two sets of feed rollers, for $900.” To which defendant answered, “I accept your estimate for perforating machine, viz.: $900, for machine complete, with feed rollers capable of perforating 23 iron, 30 inches wide.”
    Held,
    not a warranty.
    1. Obligations of parties under such a contract.
    Plaintiff is bound to make and deliver a machine designed for and fit to perform the work.
    Defendant is not bound to accept a machine unless it meets these conditions.
    But
    
      (a) Waiver. Unless he returns, or offers to return, after a reasonable time for examination, he waives all imperfections and objections.
    1. Annexing conditions. He can annex no conditions to the return or offer to return.
    Before Speir and Freedman, JJ.
    
      Decided February 7, 1881.
    The complaint was as follows :
    “ The complaint of the plaintiff by Edward GL Black, his attorney, respectfully shows, on information and belief: That on or about the 22d day of January, in the year 1876, the said plaintiff and defendant entered into an agreement in writing, whereby the plaintiff agreed to make for the said defendant a perforating machine for perforating ¡Number 22 iron, 30 inches wide, with two sets of feed-rollers with feed-gear, with continuous and intermittent feed, for the sum or price of nine hundred dollars, which said sum or price the defendant promised and agreed to pay therefor.
    “ On information and belief plaintiff further alleges, that thereafter and on or about the 20th day of July, in the year 1876, in pursuance of the aforesaid agreement, the plaintiff duly delivered to the said defendant one perforating machine for perforating Number 22 iron, 30 inches wide, with two sets of feed-rollers, with feed-gear, with continuous and intermittent feed.
    “Thatthe plaintiff has frequently demanded payment of said sum of nine hundred dollars from said defendant, but that the said defendant has wholly failed and neglected to pay said sum, or any part thereof, and still remains indebted to the plaintiff for the same, with interest thereon, from July 20th, 1876.
    “ And for a second and further cause of action plaintiff alleges on information and belief, that on or about the 29 th day of February, in the year 1876, the said defendant in writing ordered and directed the said plaintiff to make for him two sets of dies or punches, and that in pursuance of said order and direction, said plaintiff duly made and delivered to said defendant two sets of dies or punches as ordered, and that said dies or punches were reasonably worth the sum or price of two hundred and eighty dollars, and that said defendant promised and agreed to pay said sum or price therefor.
    “ That the plaintiff has frequently demanded payment of said sum of two hundred and eighty dollars from said defendant, but that the said defendant has wholly failed and neglected to pay said sum, or any part thereof, and still remains indebted to the plaintiff for the same, with interest thereon from July 20th, 1876.
    “Wherefore plaintiff demands judgment against said defendant for the sum of eleven hundred and eighty dollars, with interest thereon from July 20th, 1876, besides costs.”
    
      The answer, so far as it affects the questions passed on by the court, is as follows :
    “ Defendant admits that at or about the 22d day of January, 1876, the plaintiff and defendant entered into an agreement whereby the plaintiff agreed to make for the defendant a perforating machine for perforating Number 22 iron, and that thereafter the defendant directed the plaintiff to make for him, the defendant, two sets of dies or punches, which said dies or punches defendant alleges to have been a necessary accompaniment to said perforating machine, and that plaintiff agreed to make and furnish said machine and dies for the sum of $1,180, as stated in the complaint.
    “And defendant, further answering, alleges that at the time of making said agreement, and as a part thereof, the plaintiff agreed to and with the defendant that said perforating machine and dies so to be made for defendant should be, in all respects, capable of perforating N umber 22 iron, and that said machine and the accompanying dies, or punches, should be manufactured and delivered to defendant within eight weeks from said 22d "day of January, 1876.
    “That said machine and dies, or punches, were not manufactured and delivered to defendant within said eight weeks, and were not completed until on or about the 20th of July, 1876, although defendant continually urged the plaintiff to complete and deliver the same.
    “That on or about the 20th day of July, 1876, the plaintiff delivered to defendant a certain machine and dies, which, upon trial thereof, were found to be wholly incapable of perforating Number 22 iron, and were of such wrong and bad construction, as to be wholly useless to the defendant and wholly worthless for any purpose whatever.
    “ That thereupon the defendant duly notified the plaintiff of said defects in said machine and dies, and that the same were wholly unfit for the purpose for which defendant had purchased the same, and not according to said agreement, and refused to accept said machine and dies, but the plaintiff wholly neglected to remedy said defects or to fulfill said agreement.”
    ■ On the trial various letters were read in evidence. Defendant read the following one:
    “Officeof Geo. C. Howard,
    Foundry and Machine Works,
    17 S. Eighteenth Street,
    Philadelphia, January 23, 1876.
    “Geo. Hayes, Esq.,
    71 8th Avenue, N. Y.:
    ‘ ‘ Dear Sir: We will make you a perforating machine for No. 22 iron, 30 inches wide, with two sets of feed-rollers, for nine hundred dollars ($900.00). Bound punches, dies, and rollers for 1-15, 1-8, 3-16 diam., will cost seventy-five dollars per set. The rectangular punches 1-16, 1-4, 5-8, 1-2, inch we find we cannot satisfactorily estimate. They would have to be made by time and material cost. A multiple rowed die would cost about $65.00 for each row of punches, and the stroke and strength of the machine would have to foe made to correspond, as well as the price of machine.
    “Bespectfully yours,
    “ Geo. C. Howard.”
    Plaintiff read the two following:
    “New York, January 22, 1876.
    * Geo. C. Howard, Esq.,
    177 S. 48th street, Philadelpia.
    “Dear Sir: Yours of 21st to hand. I accept your estimate for perforating machine, viz.: $900 for machine complete, with feed rollers, capable of perforating 22 iron 30 in. wide and feeding continuously or alternately in bands.
    “As to the dies, I will reconsider what dies I will now order, and communicate with you.
    “ I have two estimates for building a machine; both are lower, one much lower. I, however, accept vonrs, believing that I am going to have a good machine, and I think it quite possible that ere long I shall be the purchaser of - more. I called on Town in Worcester on Wednesday, but he acted very cautious, and did not invite me to see his machine ; anyway I think we can get along without.
    “ Will the dies you make be hardened ? One party who built the Sylvester machines says no one can make such a die as he can.
    “Respectfully yours,
    “Geo. Hayes.”
    “ Office of Geo. 0. Howard,
    Foundry and Machine Works,
    17 S. Eighteenth Street,
    Philadelphia, Jan. 24, 1876.
    “ Geo. Hayes, Esq.,
    71 8th Avenue, New York.:
    “ Dear Sir : We have yours of the 22d ordering one perforating machine for No. 22 iron 30 in. wide, with two séts of feed-rolls and feed gear, price $900.00. We will use every effort- to complete the machine in eight weeks. I propose to temper the die and punches when you order them. You stated that you were unable to see Town’s machine. Have you been successful in seeing Messrs. Jacocks & Co.’s %
    
    “Respectfully yours,
    “Geo. C. Howard.”
    
      Defendant read the following :
    . “Howard Foundry and Machine Works,
    No. 17 South Eighteenth Street,
    Philadelphia, Pa., July 31, 1876.
    “ GIeo. Hayes,
    81 8 th Avenue, N. Y.:
    “Dear Sir : We sent you perforating machine yesterday via Clyde line—we found that the No. 55 set of punches nowin would perforate No. 8 nicely—the previous attempt to punch No. 9 always broke or bent one or more punches. To save trouble and expense, would it not be best to use this set only on No. 8 until worn short, enough to stand No. 9? Trusting you will receive and succeed in operating it profitably, we are respectfully yours, “GIeo. C. Howard.”
    The above is not the order in which the letters were read. Those of January 22d and 24th were first read, then that of January 21, and then that of July 31.
    There was other evidence which is referred to in the opinion.
    The jury rendered a verdict for the plaintiff; after the rendition of the verdict defendant moved for a new trial on the minutes of the judge ; the motion was denied and defendant excepted. A formal order denying the motion was entered.
    From the judgment entered on the verdict defendant appealed; he inscribed in his notice of appeal the following: “ also from the order entered herein the 9th day of April, 1880, denying defendant’s motion for a new trial on the judge’s minutes.”
    The appeal book did not contain all the evidence given in the trial.
    
      B. F. Watson, attorney, and of counsel, for appellant, urged:—I.
    The court erred in ruling that the plaintiff was entitled to the opening and close. There was no denial in the answer of any allegation contained in the complaint. The answer set up an affirmative defense, therefore the burden of proof was upon the defendant. The party holding the affirmative upon an issue of fact, has the right, upon trial, to open and close the proof, and to reply in summing up the case to the jury. This is a legal right not resting in the discretion of the court, anda denial thereof may be excepted to, and the'ruling reviewed upon appeal from the judgment (Miller v. Thorn, 56 N. Y., 402; Penrhyn Slate Co. v. Meyer, 8 Daly, 61). In the case last cited, the court held that the allowing to the defendant of the right to open, was error sufficient to justify the granting of a new trial. In that case it will be observed that the answer, in the closing paragraph thereof, denies each, and every allegation of the complaint not before expressly admitted, whereas, in the answer in the case at bar, there is an entire absence of any denial whatever. The answer of the defendant must contain: 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repetition (Code Civ. Pro. § 500; Code Pro. § 149). Where the substantial allegations in a complaint are not directly denied, and no issue is taken upon them in the answer, but the defendant states other facts, inconsistent with those set forth by the plaintiff, this will not be construed as a denial of the complaint, so as to prevent the allegations of the complaint from being taken as true. Merely making a counter statement, or giving a different version of the matter from that contained in the complaint, without denying the allegations of the plaintiff, is not specifically controverting such allegations (Wood v. Whiting, 21 Barb. 190; West v. Am. Exchange Bank, 44 Barb. 175).
    
      II. Upon the concession that the contract for the punches and dies was embraced in the written contract for the perforating machine, to wit, the three letters of January 31, 22, and 24, 1876, in connection with the letter of February 39, 1876, selecting by the defendant from the punches referred to in the aforesaid three letters, thus making one entire contract in writing instead of two separate ones in writing as alleged in the complaint, then the verdict of the jury was clearly against the evidence, which showed a warranty to deliver “complete” a perforating machine capable of perforating Ho. 33 iron, 30 inches wide, while the plaintiff’s own written acknowledgment accompanied the delivery of the machine, admitting that the warranty had not been performed. In the latter case the evidence is absolute of the non-performance of the warranty.
    III. The parties contracted together in writing for a perforating machine. Their contract was not for a machine that could be altered into a perforating machine, but for “a perforating machine complete.” The only means through which the machine in question or any other machine could perforate are punches and dies, therefore in carrying out the intention of the parties the plaintiff sent a perforating machine, that is to say, a machine with dies solidly imbedded therein, and with corresponding punches securely attached thereto. Doubtless different punches and dies may be used in the same perforating machine, if their respective capacities are made to agree, but a machine to be a perforating machine must of necessity contain some punches and dies. That such was the intention of the parties, viz.: that the contract for the machine was for a complete perforating machine, the machine being valued ata given price and the- punches and' dies to make it a perforating machine when designated to be valued at a given price, it is evident from the lengthy and careful correspondence between the parties as to the kind of punches and dies selected and the arrangement of the same in the machine. The fact is patent that the arrangement of the punches and dies in the machine, the length and strength of the punches and “the throw” of the machine, which brought the punches to their work, were important-elements in the making the success or want of success of the perforating machine. The plaintiff’s own testimony admits that as to these elements he was to exercise his own skill and judgment, without dictation from the defendant. Therefore : First.—If the plaintiff has failed to prove an agreement in writing for the punches and dies, the verdict is erroneous in including their value. Second.—If the punches and dies were component parts of the perforating machine, included in the contract in writing, evidenced by the three letters of January, 1876, then plaintiff’s letter of July, 1876, is unanswerable proof that the plaintiff is not entitled to recover under his pleadings, unless acceptance or waiver is affirmatively established. Third.—If in the contemplation of the parties the perforating machine complete included the punches and dies, then the refusal of the judge to instruct the jury as requested, that no separate recovery could be had for the punches and dies, was erroneous.
    TV. The evidence is overwhelming from both sides that there was never any waiver of the warranty or acceptance of the machine by the defendant.
    
      Fdwar.d G. Black, attorney, and of counsel, for respondent, among others made the following:
    I. The court ruled that plaintiff was entitled to the opening and close. Defendant excepted. The test by which to determine who has the right to begin, is to be found in the answer to the question, which party should have a verdict if no evidence be given (Huntington v. Conkey, 33 Barb. 218; Hoxie v. Greene, 37 How. Pr. 101). He who has to give evidence to prevent the verdict from going against him, must begin (Glack v. Ingall, 14 Mees & W. 95). Or, as it is stated in Elwell v. Chamberlain (31 N. Y. 612): “ The party having the affirmative issue upon the record, is always entitled to begin.” The averment in the answer contained a denial of the plaintiffs allegations, that he, pursuant to the contract, delivered machines which conformed to the requirements thereof, and threw on plaintiff the burden of proving that he had performed his contract, as a condition precedent to recovery. This case, in respect to the right of plaintiff to open and close, is on all fours with one in which the counsel for the defendant claimed the same rights under a similar pleading, which right on appeal was held to be the plaintiff’s (Penrhyn Slate Co. v. Meyer, 8 Daly, 61).
    II. A denial of a motion for a new trial made upon the judge’s minutes is not the subject of an exception, and such an exception presents no question of fact for review upon appeal (Matthews v. Meyberg, 63 N. Y. 656 : Gregg v. Howe, 5 Jones & S. Super. Ct. 420).
    III. On the question of the appeal from the order denying the motion for a new trial, it is submitted that the defendant has no standing here upon which the matter can be considered. In the language of West-brook, J.: “It is an elementary principle that in the absence of all the evidence given upon the trial the appellate court will assume, when the question is upon the sufficiency of the evidence, that that which is not returned to it warranted the ruling and ¡ustiñed the verdict” (Mahoney v. People, 3 Hun, 205). It is here shown that all the evidence is not contained in the case.
    IV. Ho warranty other than the law implies was given, nor is any other claimed by the defendant. The plaintiff’s legal obligation under the contract was to furnish a machine suitable and proper for the perforation of a certain kind of iron, and having certain specified parts. On July 21, 1876, the plaintiff delivered a perforating machine with the dies and punches ordered, in performance of his contract. If it was incapable of doing the work the plaintiff had agreed it should do, or was not possessed of the specific parts, then there was a failure on plaintiff’s part to perform his contract. On the other hand, if the defendant received the machine, dies and punches, and after a reasonable time for their examination failed to return or failed to offer to return them, on the ground of their failing to meet the requirements of the contract, then he waived any and all imperfections and accepted the performance tendered. The earliest cases on this point are considered by Judge Paige in Hargous v. Stone (5 N. Y. 73), and the subject and doctrine have been examined and affirmed immany late reported cases. The leading ones among them being: Reed v. Randall, 29 N. Y. 358; McCormack v. Sarson, 45 Id. 267; Dutchess Co. v. Harding, 49 Id. 321 ; Gaylord v. Allen, 53 Id. 516 ; Parks v. Morris Axe Co., 54 Id. 590 ; Neaffie v. Hart, 4 Lans. 4 ; Chapin v. Dobson, 78 N. Y. 82. The words warranty, or implied warranty, used in these cases, must not be mistaken for, or confused with, the special warranty sometimes required and given in addition to the contract to make and deliver an article designed for and fit to perform certain work. This is made very clear by the late Judge Alleít, in Gaylord v. Allen (53 N. Y. 516): “ Incorporating into the agreement the obligation which the law implies would superadd nothing to the contract or vary its nature or affect the remedy upon it” (Sprague v. Blake, 20 Wend. 64): “ Whatever agreement there was, whether expressed or implied, was a part of the contract, and was not a special warranty or agreement collateral to it. And in the absence of fraud or artifice in inducing an acceptance of the article, did not survive the execution and performance of the contract.”
   By the Court.—Speir, J.

The appeal is from a judgment entered upon the verdict of a jury. The complaint alleges the making of two separate contracts whereby the plaintiff first agreed for $900 to make and deliver to the defendant a machine for perf ora ting No. 22 iron, 30 inches wide, with two sets of feed-rollers, with feed gear, with continuous and intermittent feed; and by the second the plaintiff for $280 agreed to make and deliver to defendant two sets of dies and punches. That under both agreements the defendant failed and neglected to pay the several sums of $900 and $280 therefor, or any part thereof, although the goods had been delivered to him. The answer admits making the contracts, but raises an issue as to whether plaintiff ever delivered the machines pursuant to the contract, which conformed to the requirements thereof, and thus cast on the plaintiff the burden of proving that he had performed his contract as. a. condition precedent to a recovery. In pleading the performance of a condition precedent in a contract it is not necessary to state facts constituting performance, but the pleader may state generally that the party or his representative duly performed all the conditions on his part.

The objection is made by the defendant that in this case he held the affirmative upon an issue of fact and was entitled to open and close the proof and to reply in summing up to the jury. This is a legal right not resting in the discretion of the court, and when denied, as it was in this case, he is entitled to a review upon this appeal. But the plaintiff held the affirmative. The answer raised the issue of non-performance of the contract, by a delivery of the machines which did not conform to the contract. and the plaintiff was bound to establish performance.

On the rendition of the verdict by the jury the defendant excepted to the denial of a motion made by him. for a new trial on the judge’s minutes. The trial had then ended, and any exception to be available on an appeal from a judgment must be to a decision made upon the trial of the action. No order for a new trial had been entered and the defendant relies simply on the extracts from the judge’s minutes.

All the evidence is not contained in the case, although if appears the late learned chief judge commented on the testimony of seven or eight witnesses in his charge to the jury, none of which appears in the record. In Mahony v. People (3 Hun, 202), it is stated to be an elementary principle that “in'the absence of all the evidence given upon the trial the appellate court will assume, when the question is upon the sufficiency of the evidence, that that which is not returned to it warranted the ruling and justified the verdict.”

In addition to the foregoing I am of the opinion there is good ground for affirming this j udgment. The action is based upon executory contracts for the manufacture and sale of personal property, and was wholly in writing. The agreement was that the plaintiff would make for and deliver to the defendant a perforating machine capable of perforating No. 22 iron sheets, 30 inches wide, with two sets of feed-rollers, with feed gear, with continuous and intermittent feed. The legal obligation under the contract rested upon the plaintiff to furnish a machine proper and well fitted to do this work upon this description of iron, with feed-rollers and gear as described in the agreement. This machine, with the dies and punches, was delivered by the plaintiff to the defendant in performance of his contract. If there was a failure to do the work the plaintiff had agreed to do, or if the machine did not contain any of the specified requisites, there was a failure on the plaintiff’s part to perform his contract. If, on the other hand, the defendant received the machine, dies and punches, and after a reasonable time for examination failed to return or failed to offer to return them because they did not meet the requirements of the contract, then he waived all imperfections and accepted the performance tendered. In short, whatever the agreement was, whether express or implied, it was embodied in the contract itself and was not a special warranty or agreement collateral to it. There was no special warranty given in addition to the warranty implied by law to the contract, to make and deliver a machine designed for and fit to perform the work. It is not pretended that the defendant was bound to accept the property except upon, this condition. This he was to determine upon the receipt of the property, and in fact did decide to retain it. He did not return it nor offer to return it except upon condition that the plaintiff would pay him §300 without prejudice to any suit. To make a valid tender it must be made without the imposition of any condition, restriction or qualification (Roosevelt v. Bull’s Head Bank, 45 Barb. 379; Wood v. Hitchcock, 20 Wend. 47). A party who seeks to rescind a contract must rescind in toto, and place the opposite party in the position he was in before the contract was made. If the defendant did not accept the performance tendered by the plaintiff, the burden rested upon him to show a return or offer to return the machine. This he not only failed to do but testified himself to the contrary.

The several exceptions taken in the case cannot, we think, change the result.

The judgment and order appealed from must be .affirmed with costs.

Freedman, J., concurred.  