
    Fairbank Canning Company, Resp’t, v. Seth X. Metzger, etc., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887.)
    
    1. Contract for sale of personal property—Executory — Warranty.
    An executory contract for the sale of personal property may be with or without express warranty as to its quality, description or condition.
    3. Same—When vendee may decline to receive property.
    If an express warranty is not part of the contract of sale, the purchaser may decline to receive the property when offered for delivery, if, after reasonable opportunity for examination, he finds it is not such as was contracted for.
    3. Same—Effect of acceptance and use of property.
    The acceptance and use of the property in the last case is an admission that the contract has been complied with, and no action can thereafter be maintained against the vendor for defects existing at the time of the delivery or afterwards discovered. The purchaser, to protect himself from such losses, must exact from the vendor an express warranty of quality, condition, fitness, etc.
    
      4. Same—Warranty—Right of purchaser.
    Where property is bought under such a warranty, the purchaser on tender of delivery may reject the same, if it is not what was contracted for. or he may receive anti use it and seek a recovery of his damages for the breach of the warranty.
    6 Same—When express warranty survives acceptance.
    The express warranty survives an acceptance by the purchaser whenever the defects are of a character not readily to be discovered, on an examination of the property after delivery. Whether the buyer may accept of property under an executory contract with warranty, knowing at the time of acceptance that it was not what the vendor had warranted it should be, and still retain iiis right of action for breach of warranty. Qumre.
    
    6. Same—Sale of provisions—Ho implied warranty when.
    There is no implied warranty of quality, condition or soundness on sale of provisions as merchandise, though a different rule applies when provisions are sold for consumption.
    Appeal from a judgment entered upon the report of a referee.
    
      H. S. Bedfielcl, for resp’t, G. L. Smith, for app’lts.
   Boardman, J.

If the defendants had the right to refuse to receive the car load of beef at Dunkirk, on the 4th day of April, when the car was opened, and the condition of the beef ascertained, they forfeited such right by selling beef from the car at various points between Dunkirk and Elmira, and by their neglect for eight days to exercise such right.

The defendants must rely solely upon an express warranty by plaintiff of the kind, quality or condition of the beef sold and delivered to the defendants, which survived the acceptance of the property by defendants. If there were such a warranty there was beyond doubt, and on the facts, found a breach of it, and the defendants should have been allowed their damages. The learned referee has found that there was no warranty, and hence no damages were allowed the defendants.

Was there such a warranty as entitled the defendants to recoup their conceded damages ? That is the only question to be decided, and on its decision depends the validity of this judgment.

The contract is wholly shown by the correspondence between the parties. Hence it becomes a matter of construction of the written evidence. After a careful examination of the evidence we do not find any express warranty of the kind, quality or condition of the beef sent. There are preliminary conditions in which the defendants say what they will want if they trade with plaintiff, and the latter gives prices, and states that they will be well dressed and cleaned; in fact, in first-class condition in every respect.” But this letter does not get an order. Qn March 12th, defendants order “one car load of good steers, in good condition,” etc. Plaintiff fills the order March 14th, saying, “ Shipped you car of good beef to-day.” That car load was satisfactory to defendants. The second bar load was shipped on 17th, on order saying: “'If beef all right, will take one car. * * * Add thirty good steers’hind quarters.” Plaintiff reply in substance, order received and beef will be shipped, and on 17th telegram, “Shipped car of beef.” At folio 311 defendants say in substance that car load is satisfactory. The next car load was shipped on 24th, on order of defendants, “ Will take car of beef at prices of to-day.” On 22d plaintiff says: “We will take all the pains possible to have the beef turned out in the very best condition. Think you will find an improvement in next shipment.” On the 27th the defendants ordered the fourth car of beef, by telegram, and at the same time complain of the condition of the beef that comes in Merchants Dispatch. That car was shipped the 31st of March, but on 29tn plaintiff writes that it will be shipped “ in a Trimiman refrigerator car, which belongs to us. We know that the beef will go through all right, and reach you in splendid condition.” On 31st plaintiff sends telegram to defendants: “ Shipped you load beef to-day.” etc. This gives the evidence so far as necessary to show that no express warranty was given by plaintiff of the kind, quality or condition of any of the beef sent. Plainly the defendants wanted and expected, and had a right to receive good merchantable beef, in good condition.

Under the contract the- plaintiff should have furnished such beef. If it were not so furnished the defendants could reject and refuse to receive it. The defendants understood that they might reject the beef if it was not up to contract. At folio 274 they say “Unless you can send your "beef in as good a condition as your competitors Armour & Co., and G. F. Swift, will hot accept it.” Again at folio 291 “We have wired you an order for a car of beef if all right,” and again at folio 296 “ If beef all right, will take one car.” This language indicates an understood purpose on the part of the defendants, to exercise the right of rejection if occasion required. That right might exist in connection with an express warranty if it were a part of the contract, Muller v. Eno (14 N. Y., 601), perhaps even without. Day v. Pool, 52 N. Y., 416, 418; Parks v. Morris Axe and Tool Co., 54 id., 586, 591. But even an express warranty would not avail the defendants, if the defects of the beef when first examined were clearly visible and known to the defendants, or their agent. Day v. Pool and Parks v. Morris Axe Co., supra. It is there held that open and visible defects are not warranted against; Day v. Pool, 420. In Brigg v. Hilton (99 N. Y., 528, 529), it is held that the purchaser may reject the goods purchased upon an executory contract as not answering the bargain, but if the sale was with warranty, he may receive the goods and have the right to compensation if the warranty is broken. And this does not conflict with Reed v. Randall (29 N. Y., 358), as is explained in Day v. Pool (supra, 421), Muller v. Eno (14 N. Y., 597), Dounce v. Dow (57 N. Y., 16-23; S, C., 64 id., 411).

After much consideration, we have come to the following conclusions as expressive of the law applicable to the present case viz:

First. An executory contract for the sale of personal property may be with or without express warranty as to its quality, description or condition.

Second. If an express warranty is not a part of the contract of sale the purchaser may decline to receive the property when offered for delivery if after reasonable opportunity for examination he finds it is not such as was contracted for.

Third. The acceptance and use of the property in the last case is an admission that the contract has been complied with and no action can thereafter be maintained against the vendor for defects existing at the time of the delivery or afterwards discovered.

Fourth. The purchaser, to protect himself from such losses, must exact from the vendor an express warranty of quality, condition, fitness, etc.

Fifth. Where property is bought under such a warranty, the purchaser on tender of delivery may reject the same, if it was not what was contracted for, or he may receive and use it and seek a recovery of his damages for the breach of warranty.

Sixth. The express warranty survives an acceptance by the purchaser whenever the defects are of a character not readily to be discovered on an examination of the property after delivered.

It is not quite clear that the buyer may accept of property under an executory contract with warranty, knowing at the time of acceptance that it was not what the vendor had warranted it should be, and still retain his right of action for the breach of warranty. Chatfield v. Frost, 3 Th. & Co., 357, 359; Brown v. Burhans, 4 Hun, 227 and cases hereinbefore cited.

Seventh. There is no implied warranty of quality, condition or soundness on sale of provisions as merchandise. Moses v. Mead, 1 Den., 378; affirmed, 5 id., 617. Though a different rule applies when provisions are sold for consumption. Id.

In the case of Burch v. Spencer (15 Hun, 504), the action was in form on warranty and for fraud and deceit in selling-boar meat to a retailer of provisions and representing that it was not boar meat; It was held to be an action on warranty and a recovery by the seller was reversed, on the ground that plaintiffs were retailers as well as wholesale merchants, and that meat packed by them was sold to their neighbors for food. Thus the rights of the buyer to recover damages were brought directly within Moses v. Mead (supra). Certainly the latter case was recognized as law.

We think the learned counsel for the defendants, in his elaborate brief, has failed to recognize some of the principles to which allusion has been made. For instance, the liability of a vendor with express warranty is very different if no such warranty is made. His duty under the contract of sale may be the same in each case, but the consequences very different on failure to perform his duty.

Again, an implied warranty is urged upon us as a basis of damages with as much zeal as an express warranty, while we have seen that such claim is not well founded.

Again, on page 32 of his brief, the counsel concedes that this doctrine of estoppel by acceptance might apply to this case if all the parties had resided in Elmira and the delivery was to be thus made. But though the delivery of this beef was to be made in Chicago the defendants had the right to examine it at Dunkirk and reject it if defective.

But we again repeat, the sole question is, “was there an express warranty of the goodness and soundness of this beef?” We regret that we do not find any satisfactory evidence of one. It was simply a contract to sell car loads of beef of certain kinds. The plaintiff as it seems to us, studiously and concisively avoided warranting the property sold as to its quality or condition. The defendants have suffered damages by reason of the transaction. We should be glad to allow them a remedy if the principles of law would permit. But we think it would be dangerous to permit purchasers to receive and sell property, knowing it was not a performance of the vendors contract of sale, and after-wards sue the vendor for damages arising from such known defects. Perhaps another court may hold that an express warrnty of quality is shown in this case.

The judgment must be affirmed, with costs.

Hardin, P. J., concurs; Follett, J., dissents.  