
    Albertus Larrowe, Appellant, v. Herman J. Lewis et al., Respondents.
    
      Court of Appeals,
    
    
      June 16, 1891.
    
      Contract. Construction.—When, by the contract of sale, one price is to he paid for all the ties the vendor should deliver, the vendee cannot accept both first and second class ties, and pay for the second class only their actual value, in the absence of any provision in the contract to that effect.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered upon report of referee, dismissing complaint.
    
      E. A. Nash, for appellant.
    
      J. F. Parkhurst, for respondents.
   Andrews, J.—It

is conceded that the defendants were not paid any money in excess of that to which they were entitled for ties delivered and accepted by the plaintiff, reckoning them at the price fixed by the contract. The claim of the plaintiff is that the payments were made in advance, and that as part of the ties delivered were, upon inspection by the plaintiff’s inspector, classified as seconds, and were, in fact, seconds, that the plaintiff was not bound to pay therefor the price of firsLelass ties, and consequently that he is entitled to recover the deficiency as an over payment.

The difficulty is, that by the contract one price was to be paid for all the ties the defendants should deliver. The finding that the word “ counted ” means “ inspected,” might authorize the rejection of all but first-class ties, but it does not justify the conclusion that the plaintiff might accept both classes, and pay only for the second class their actual value, in the absence of any provision in the contract to that effect.

The plaintiff requested a finding that this was the custom in contracts of this kind. The evidence is contradictory upon the point, and the referee refused the request of the plaintiff to find the custom alleged, and to this refusal no exception was taken.

Upon the case as presented there appears to be no error in the record, and the judgment should, therefore, be affirmed.

All concur, except Finch, J., absent.  