
    GEORGE SCHUCHMAN, Respondent v. SOLON WINTERBOTTOM, et al., Appellants.
    
      Contract to manufacture, when non-conformity to the contract affords no defence to contract price, or ground for damages—Immaterial evidence, exclusion of questions tending to elicit, not error.
    
    Where articles manufactured under a contract are delivered to and received and used by the party for whom they are manufactured and no return or offer to return is made, they being of such a character as to be capable of being returned, the conclusion is that they were accepted as manufactured in accordance with the contract, and the party receiving them is concluded from claiming they do not conform to the contract and is liable for the contract price and is not entitled to any damages for a claimed non-conformity. The court deemed it unnecessary to consider as to a qualification to this rule, that where the defect complained of is not discoverable until after use or close inspection, a retention without complaint after the lapse of a reasonable time in which to discover the defect must occur before an acceptance as in conformity with the contract will be presumed, because the proof showed that' one of the defendants had full knowledge of what was claimed to be defect before the delivery of the articles.
    To sustain a counterclaim for 51 days delay in delivery, defendants put in evidence their books containing entries of the actual delivery; connected with these entries were blue lines; a witness testified that the entries were made long before the blue lines. Held, that it was immaterial to ascertain from the witness what the meaning of the blue marks was.
    Before, Sedgwick, Oh. J., Freedman and O’Gorman, JJ.
    
      Decided May 5, 1890.
    Appeal by defendants from judgment entered upon the verdict of a jury. The facts sufficiently appear in the opinion.
    
      
      Hayis & Greenbaum, attorneys, and Samuel Greenbaum of counsel, for appellants, argued:—
    I. One of the principal points relied upon by the defendants was the fact that the vans were not delivered on time, and in view of the clause fixing the damages per diem, it was of great importance to the defendants to show precisely when the vans were delivered respectively. The defendants’ warehouse had been entirely destroyed by a conflagration and it was of the utmost importance that the vans should be gotten out as quickly as possible. It was upon the express understanding that the plaintiff would build the vans quicker than anybody else that the contract was given to him, and the forfeiture clause was accordingly inserted. The defendants had shown that as soon as a van was received a memorandum of it was made by the person receiving it at the establishment of defendants in a book which was in the nature of a blotter. Yarious witnesses were examined with respect to the receipt of the vans by the defendants, and they testified to the receipt of the vans upon certain dates from the blotter in question. Upon cross-examination of one of these witnesses, Yan Benschoten, the plaintiff’s counsel, asked the witness as to whether one of the entries testified to by him was put in before certain blue lines which appeared upon the book were written or drawn upon the page, to which the witness answered that the entry was written in, before the blue lines were drawn, and that the blue lines were written across there long after. Referring to another entry (that of September 6th,plaintiff’s counsel, on cross-examination, asked whether that.entry was not written in, since that date, to which witness testified that it was not. Counsel for defendants then asked witness to make an explanation in reference to the blue crosses, and to explain what the blue crosses thereon shown indicated. To this question plaintiff objected, and, the question being excluded, defendants’ counsel duly excepted. Defendants also, upon examining Eugene A. Furber, who is the cashier of the defendants, and who also made entries in the blotter, asked what the meaning of the blue checks appearing opposite these entries was, and the question being objected to by the plaintiff, the objection was sustained and the defendants excepted. Defendants then sought to explain what their object was in showing these entries, and the court would not permit defendants’ counsel to state what the object was, to which the defendants duly excepted. Defendants. then sought to show by this witness the practice as to whether any charge is made in the ledger of an entry of the character ref erred to, to which the plaintiff objected, the objection being sustained, and the defendants duly excepted. It thus appears that the plaintiff was enabled to give the jury the impression that the entries testified to as having been made were as a matter of fact made' at some subsequent time, and the defendants were not permitted to explain the meaning of the checks in blue lead pencil, which gave the suspicious character to the entries referred to. It is respectively submitted "that such a ruling ing by the learned trial judge was error and the court is referred to the case of Harrison v. Kulke, (38 Super. Ct. 399). From the foregoing fact it is evident that an explanation of the blue marks was very important to defendants, and it seems to be clear that the learned trial judge was in error in excluding any evidence tending to explain the meaning of these blue marks.
    II. At the conclusion of the judge’s charge defendants’ counsel requested that the judge charge the jury that it was the duty of the plaintiff to show that he substantially complied with the terms of the agreement as to the manner of construction and materials to be used, and that the plaintiff cannot recover unless the inferior character of construction or materials could have by ordinary diligence been discovered by defendants. The court refused so to charge and the defendants duly excepted. Defendants’ counsel made a further request to charge, showing that it was a condition precedent on the part of the plaintiff to maintain his action to prove performance of his contract, and this was refused, and the defendants excepted. It is respectfully submitted that the learned trial judge erred in his refusal to charge as requested. It is a well settled rule of law in this state that where performance is made a condition precedent, performance must be shown to entitle the party to recover, Smith v. Brady, 17 N. Y. 173 ; Philip v. Gallant. 65 lb. 264. When the builder has in good faith intended to comply and has substantially complied with the contract, although there may be slight defects caused by inadveríance or intentional omission, he may recover the contract priceless damage on account of such defects. Johnston v. De Peyster, 50 N. Y. 666 ; Glacius v. Black, 50 lb. 145 ; Philip v. Gallant, 62 lb. 264 ; Nolan v. Whitney, 87 lb. 649. Instead of this the court even refused to charge the jury that the plaintiff must" show a substantial compliance and evidently confused the case, as heretofore shown, with the case of the breach of warranty upon the sale of chattels under the rule laid down in the case of White v. Miller, 71 N. Y. 118. It may also be said that the defendants were not even given the benefit of the rule which the learned Justice said was the rule applicable to the case, on the groundthat the defendants had not shown how much less the vans were worth in the condition as delivered from what they would have been worth if they had been delivered as agreed upon. It is respectfully insisted that the learned Justice was in error in this respect. It had been shown that there was a diference in value between the paneling used and that which should have been used which alone amounted to $162,50. There was thus specific evidence of the difference of value. This fact alone would be sufficient to show the learned trial judge did not give the defendants even the benefit of the rule which he had in mind as applicable to the case.
    
      John P. Schuchman, attorney and of counsel, for respondent, on the questions considered in the opinion, argued:—
    I. The acceptance of the vendee of articles manufactured for him under an executory contract, after an opportunity to examine them, estops him from thereafter claiming damages for any visible or discernible defects and imperfections, whether discovered or not. Studer v. Bleistein, 115 N. Y. 316, 319. Defendants had ample opportunity for a whole year to examine the vans and having made no objection thereto, they are estopped from making any claim for damages. Hopkins v. Appleby, 1 Stark, 388 ; Day v. Pool, 52 N. Y. 416, 420 ; Pierson v. Crooks, 115 lb. 539, 547.
    II. The exceptions to the rejection of evidence were mostly all obviated by allowing the evidence to go in ou modified questions.
   By the Court.—Sedgwick, Ch. J.

The action was for a balance of moneys to be paid to plaintiff by defendants under the provision of a contract. The contract was that the plaintiff should build certain vans and deliver them to defendants, for which the defendants were to pay certain sums. The defence was that the vans were not made in the manner provided by the contract. The respect in which they were claimed not to be in accordance with the contract was that the panels of the vans were not sufficiently thick or as thick as panels were ordinarily made for vans of such' a size. And on this ground the defendants claimed that the plaintiff had not shown performance on his part.

The testimony showed beyond doubt that the defendants had received the vans and had used them for a long time, and that they were still used without any return or offer to return. The conclusion from the testimony was that the defendants had accepted the vans, as built in accordance with the contract. Part of the testimony on this subject were certain entries in the defendants’ books in their business which were statements of the time when the vans were received. On the books, near these entries, were blue marks like checks. A witness who had made the entries was asked on behalf of defendants to explain these marks. The form of these questions was irregular and the overruling of them by the court was correct for that reason. But if the testimony, in explanation of which the questions were asked, was stricken from the case, the remainder of the evidence showed that the vans had been accepted without any claim by defendants that they did not fulfil the contract. Under these circumstances the plaintiff was entitled to payment of the contract price. Reed v. Randall, 29 N. Y. 358; Studer v. Bleisten, 115 lb. 325 ; Pierson v. Crook, lb. 547.

It is argued that this result is not a proper one here because the defect of which defendants complain was latent and not discoverable by a reasonable degree of observation at the time of the receipt of the vans or during a long time after. I do not think it is necessary to examine the law of the conditions claimed to exist, because it is in evidence from one of the defendants, that before the vans were completed he had- observed the manner in which they were built and specifically the thickness and construction of the panels.' That witness had been at plaintiff’s shop during the work. He was there every few days. He took charge of them personally. He made several complaints. He attended to the outside. He told the plaintiff that the panels ought to be put in lengthwise instead of up and down. 1 ‘ Q. In other words, the grain instead of running up and down should run lengthwise. A. Yes, sir, the panels should be made in one piece.” It is clear that the defendants retained the vans knowing the condition of the panels and their size.

The defendants could not assert that the vans were not in accordance with the contract, after the acceptance with knowledge of the facts, and were not entitled to any damages on account of the condition of the panels.

It is claimed that, it was error not to allow a witness who made the blue marks, that have been already referred to, to explain their meaning. The defendants for the purpose of establishing that they were entitled to an allowance of ten dollars a day for fifty-one days on account of delay in delivery under a provision of the contract, put in evidence their books which contained entries of the times of actual • delivery. On cross-examination, the witness who made the entries was asked, if the entry was made before the blue lines were, and the answer was in the affirmative, and long before. Upon this affirmation of the witness it was immaterial to ascertain what the meaning of the blue marks was.

The judgment is affirmed with costs.

Fbeedman and 0’Gorman, JJ., concurred.  