
    Motley, Green and Company, Respondent, v. Frederick W. Elmenhorst and Others, Composing the Copartnership Doing Business under the Firm Name of Elmenhorst and Company, Appellants.
    First Department,
    February 10, 1911.
    Sale — inferior goods— acceptance — shipment to foreign, country — proof of trade custom — counterclaim — failure to show damage.
    Where, in an action for the-agreed price of certain wheelbarrows delivered for shipment to South America, it appears that the goods delivered to the. vessels were inferior to those ordered, and the crucial question is whether the inferior goods were accepted by the purchasers, who had designated the vessels to which they should be delivered, it is error to exclude evidence offered by them to show that there was a universal trade custom in New York city whereby merchandise delivered for shipment to South America was not inspected at the steamer, but the purchaser relied upon the vendor’s representations, that the goods as ordered had been shipped,- and that in case it .was subsequently ascertained that the merchandise was not of the quality ordered, adjustments were made as to the price to be paid for such as were actually shipped by the vendor.
    Where there is no opportunity for the inspection of goods purchased, or an inspection is prevented by the acts of the vendor, or by an agreement between the parties, there is no such acceptance as binds the purchaser.
    A counterclaim for the difference between the Value of certain other wheelbarrows ordered and the value of those actually furnished is rightly dismissed where the goods have already been paid for and the defendants fail to show any damage by reason of the delivery of the inferior goods.
    Clarke and Dowliks, JJ., dissented, with opinion..
    Appeal by the defendants, Frederick W. Elmenhorst and others, composing the copartnership, etc., from an order of the Appellate Term of the Supreme.Court, entered in the office of the clerk of the City Court of the city of Mew York on the 10th day of March, 1910, affirming a judgment of the City Court in favor of the plaintiff, rendered on the 21st day of October, 1909, and also from a judgment of affirmance entered in the office of the clerk of said City Court on the 22d day of March, 1910, pursuant to said order of the Appellate Term.
    
      George E. Morgan, for the appellants.
    
      Charles N. Morgan, for the American Trading Company and others.
    
      George H. Corey, for William E. Grace & Company.
    
      Robert L. Luce, for the respondent.
   Ingraham, P. J.:

The action was brought for goods sold and delivered by the plaintiff to the defendants.

■ The complaint alleges a sale by the plaintiff to the defendants of - certain wheelbarrows of the agreed value of $3,779.45; that the defendants had paid on account of the merchandise delivered the sum of $3,184.37, and that there remained due to the plaintiff from the defendants the sum of $595.08,-for which the plaintiff demanded judgment. The defense was that the merchandise ordered by the defendants was never delivered to or received by 'them, but that the plaintiff had shipped on account of the defendants merchandise of an inferior quality and a different manufacture from that ordered. The defense also alleges a counterclaim that these defendants had ordered from the plaintiff 816 wheelbarrows of a particular make and quality to be crated and shipped on steamships sailing for South American .ports; that the plaintiff neglected to ship the goods as ordered, but shipped a different and inferior article of less market value, which fact was concealed from the defendants by the plaintiff, and rendered bills for the merchandise ordered at .the price specified, for which the defendants, under a mistake of fact and without any opportunity for examination and without any actual examination, paid; that the difference between the value of the wheelbarrows ordered by the defendants and the value of the wheelbarrows actually shipped under these orders by the plaintiff was the sum of $874, for which the defendants demanded judgment. ■ To this counterclaim the plaintiff interposed a reply. The plaintiff furnished a bill of particulars, stating the number of Wheelbarrows delivered and the date of each shipment. The last shipment was stated to be on August 17, 1905, which was the only shipment unpaid for, and for the contract price of the wheelbarrows-shipped at that time the plaintiff sought to recover.

Upon the trial the plaintiff proved that the defendants ordered wheelbarrows by various written orders, which, upon their fade, required the delivery of “ Columbus jf 4 Wheelbarrows,” manufactured by the Ealbourne & Jacobs Manufacturing Company. It also appeared that after the orders’were received the plaintiff pro-, cured the wheelbarrows and had them crated and ready for delivery when the defendants were notified of that fact,' and the defendants then gave to the plaintiff shipping orders, designating the steamer to which they were to be delivered. The defendants sought to show, both by cross-examination of the plaintiff’s witnesses and the witnesses- called by the defendants, that these wheelbarrows were delivered directly by the plaintiff to the steamship sailing for South America; .that the defendants had no opportunity of examining the various shipments', and did not in fact examine them ; that, as a matter of fact, a large number of these wheelbarrows shipped by the plaintiff upon, these orders were not manufactured by Kilbourne & Jacobs Manufacturing Company, and were not Columbus No. 4 wheelbarrows. This testimony was objected to, and most of it excluded, to which the defendants excepted. The defendants also sought to prove that there was a universal custom in the trade in New York by wliich merchandise delivered under such orders for shipment to South American ports was not inspected at the steamer, but that .the purchaser relied upon the representations of the vendor that the goods as ordered had been shipped, and that in case it was subsequently ascertained that the merchandise' shipped was not of the quality or description ordered, adjustments were made as to the price to be paid for the merchandise actually shipped by the vendor under such orders. This evidence was all objected to by the plaintiff, was excluded, to which the defendants excepted.

The crucial question in this case is as to the acceptance by the defendants of the merchandise ordered by them. It seems to be quite satisfactorily proved that the merchandise ordered by the defendants and shipped by the plaintiff was not of the quality and character specifically ordered, and the plaintiff was not entitled to recover unless an acceptance of the merchandise as a compliance with the order was proved. Now, none of this merchandise was delivered directly, to the defendants, but under the. defendants’ instructions was shipped upon vessels sailing for South American ports, crated by the plaintiff and delivered by it directly to the steamers. Upon the question of acceptance I think proof of custom in the trade, which was so general as to be known to both parties to this contract, so that they might be presumed to act in accordance with it, by which a delivery to a steamer was not to constitute an acceptance by the purchaser, would be competent evidence upon the question, as to whether a delivery to a steamer was an acceptance of the merchandise delivered as "a compliance with the orders. ' The orders required the delivery of specific merchandise manufactured by a specific manufacturer. The plaintiff Was not justified in delivering upon such orders merchandise made by another manufacturer of an inferior quality. The defendants, however, were bound to inspect the goods delivered, and a failure to reject the merchandise delivered as a compliance with the order would waive the defense that the merchandise was not of the quality and character ordered in an action for the purchase price; but the rule is equally well settled that where there is no opportunity of inspection, or an inspection is prevented by the acts of the vendor, or by an agreement between the parties, there is no acceptance that binds the purchaser, and I think an established custom of the trade by which inspection of the merchandise ordered under the circumstances disclosed in this action is not to be had before shipment, and that the purchaser is entitled to rely upon the representation of the vendor that the goods delivered to the steamship for shipment are the goods of the character ordered would be competent evidence upon the question.as to whether a delivery to the steamship would be an acceptance by the purchaser which would preclude him from raising the question as to the liability to pay the contract price for the goods. Undoubtedly if the purchaser knew that the goods shipped were not the specific goods ordered, or if he had an opportunity to inspect them and failed to do so, in the absence of an agreement that siicli goods should not be inspected and that the purchaser could rely upon the representations of the imndor as to the character and quality of the goods, he could not object to the payment of the contract price for the goods ordered and shipped; but it seems, to me that if there was no actual opportunity of inspection and no actual inspection, if such a general custom could be proved, the purchaser would not be bound to pay the contract price, but only for the market value of the goods furnished, and for that, reason I think it was error to reject the evidence of the custom offered by the defendants, and that the defendants should have been allowed to prove, if they could, that such a custom existed in the trade in New York, solely upon the question of the effect of the delivery of the goods to the steamship company.

I am inclined to think the. court was right in. dismissing the counterclaim for the goods that were actually paid for, as no" damage was proved to have been sustained by the defendants in consequence of a failure of the plaintiff to deliver the goods ordered; but. the court directed a verdict for the plaintiff for the full contract price of the goods shipped under the last order which had not been paid for. Whether the plaintiff was entitled to recover the contract price or the actual value of the goods shipped was a question that the defendants were entitled to have submitted to the jury, if they could prove, either by proof or custom, or by other means, that the actual delivery of the goods to the steamship was not an acceptance of the goods under the contract.

For these reasons I think the judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event.

Scott and Miller, JJ., concurred; Clarke and Dowling, JJ., dissented.

Clarke, J. (dissenting):

I dissent. The recovery was for the last shipment, $595.08. The undisputed proof is that th» defendants did inspect this shipment and after such inspection ordered it sent to their South American customers. Upon this proof, as the majority of this court hold that the dismissal of the counterclaim was right because no damage was proved to have been sustained by the defendants in consequence of a failure of the plaintiff to deliver the goods ordered, the direction of a verdict was required and the proof of custom was immaterial.

The judgment and order should be affirmed.

Dowling, J., concurred.

Determination and judgment reversed, new trial ordered, costs to appellants to abide event.  