
    Holden and others vs. Clancy and others.
    An article designated in a contract as “ slops from their distillery,” does not constitute a manufactured article, within the meaning of the rule which implies a warranty of merchantable quality.
    Nor is an agreement, by lessors of a cattle barn to furnish to the lessees, at said barn, slops from the distillery of the former, to a specified amount per day, during the term, an agreement to manufacture or furnish a manufactured article, in the sense of the rule referred to.
    Although the residuum, or refuse, of various kinds of manufactories is more or less valuable for certain purposes, and may be the subject of sale, yet the quality of such refuse matter is wholly subordinate to the process which is the main object of the manufacturer; and it is not expected that his skill and attention will be devoted to it.
    In the absence of any express contract, fraud or imposition, there can be no responsibility on the part of the vendor, for the quality of what is sold as slops or swill from a distillery. If the purchaser has what he bargained for, viz slops from a distillery, the doctrine of caveat ernrptor applies.
    
      If there were a warranty of merchantable quality implied in such a sale, purchasers cannot recover damages on account of the inferior quality of the slops furnished, where it appeal's that they received and consumed the slops, from day to day, with a full knowledge of their'quality, and without returning, or offering to return them, or giving the vendors notice to take them away, or not to deliver any more.
    Such conduct on the part of purchasers, upon well settled principles governing executory contracts of sale, is a complete waiver of any defects in the quality of the article purchased, and brings the case within the principle of Zeed v. Mamsdell, (29 N. T. 358.)
    THIS is an appeal by the defendants from a judgment rendered against them on the report of a referee. The facts sufficiently appear in the opinion of the court.
    
      Hunt & Green, for the appellants.
    The report of the referee is founded upon an implied warranty of property delivered. It is only necessary to read the pleadings, and the findings of the referee, to reverse this judgment. He finds the contract performed on both sides, so far as delivery of the slops and payment therefor. He then finds a breach of an implied warranty, and damages. It is submitted that this is contrary to the law, and adjudged cases.
    I. The contract was executory, and the plaintiffs, with full knowledge, received and used the slops. (29 N. Y. 358. 41 id. 488, 491.) Their paying for them under protest, does not change the rule. (13 Abb. 350. 2 Sandf. 481. 12 N. Y. 308.)
    II. There were errors committed upon the trial of the cause, which,’ if necessary, we ask to have examined and passed upon.
    IH. The defendants’ motion for nonsuit should have been granted, upon the grounds specified at the trial, viz: “ 1. There is no warranty in the contract nor claimed in the complaint.
    2. There was a full performance of the contract by the defendants," and an acceptance and payment by the plaintiffs.
    
      3. The contract was executory, and the plaintiffs accepted and used the slops delivered them under it by the defendants.
    4. The plaintiffs are not entitled to special damages. If the slops were injurious, they took them with full knowledge of their quality, and were guilty of negligence in feeding them.
    5. The defendants delivered the slops to the plaintiffs, who received and used them, and the defendants claimed and received pay therefor from the plaintiffs, though the plaintiffs found fault with their quality, and paid under protest. It was the settlement of a disputed claim.
    6. Ho proper damages have been shown.”
    TV". The judgment should be reversed, and a new trial granted.
    
      D. Pratt, for the respondents.
    I. The contract in this case implied that the slops furnished to the plaintiffs, should be merchantable, and fit for the purpose to which it was to be applied. 1. In every executory contract to supply a manufactured article for a particular purpose, there is an implied warranty that it will answer the purpose to which it is to be applied. (Hilliard on Sales, 230, § 23. 3 StarJc. Ev. 1239. 23 Wend. 350. 1 Pars. 469.) 2. So in every executory contract to furnish manufactured articles, there is an implied warranty on the part of the manufacturer that they shall be of a merchantable quality. (3 Stark. Ev. 1239. 23 Wend. 350. 29 N. Y. 362.) 3. In this case both parties understood that the slop was for feeding cattle to be purchased by the plaintiffs and put into the still barns. 4. The defendants, therefore, contracted to furnish slop that was fit and suitable for fattening the cattle thus to be bought by the plaintiffs.
    H. That the defendants wholly failed to perform their contract in this respect, is amply proved. 1. Every distiller, who had experience in fattening cattle upon still slops, testified that such slops were worth nothing for fattening cattle. 2. The testimony of the farmers who used it and thought it increased the quantity of milk, is not in conflict with that of the distillers. 3. The small increase in the gain of the cattle, shows that they did not receive the proper feed. 4. The quality of the slops was a question of fact for the referee to pass upon, and as there was a conflict of evidence upon the point, his finding must be deemed conclusive.
    HI. The defendants, therefore, having failed to perform their contract, it would seem to follow that they were liable in damages for the injury which the plaintiffs have suffered in consequence of such non-performance, unless the plaintiffs have waived performances, or in some other manner discharged the defendants from their obligations to perform.
    IV. It is manifest that the plaintiffs have not designed to waive full performance, or to discharge the defendants from such performance. 1. When Mr. Van Buren’s attention was called to the quality of the slop, he insisted that the defendants should furnish good slop, and they promised to do so. 2. He paid under protest, and gave them notice that if the cattle did not gain on it sufficiently, he should hold the defendants responsible. 3. Sherlock did not understand there was any waiver, as he told Van Burén if it was not right he had his remedy.
    V. There was no design, therefore, on the part of the plaintiffs to waive a strict fulfillment of the contract, and it is equally clear that the defendants are not discharged by any legal quirk or quibble from the consequence of their failure to perform. 1. It is conceded that in an ex-ecutory contract to furnish a marketable article, where the purchaser has an opportunity to examine it and ascertain its defects, if it be defective, he is bound to give notice of the defect, or he will be deemed to be satisfied with it. 2. And when the article can be conveniently returned, he must return it or give; notice that it is defective, and will not be received in full performance, or he will be deemed to have waived the defect. 3. But this rule is subject to many exceptions. (3 Stark. 1208, 1209. 12 Mass. 282. 1 Mason, 437. 2 Smith's J. Cas. 15-17.) 4. This case is clearly within the exceptions. 5. Again; the plaintiffs were unacquainted with the effect of that kind of slop, and although they were apprehensive, yet their apprehensions were allayed by the assurances of Sherlock that the slop was nutritious, and that the cattle were growing finely. (a.) The quality of the slops could not, therefore, be fully ascertained until the cattle were sold. (&.) A man unaccustomed to feeding cattle with still slop, could not tell by the appearance, how fast they were growing, or whether they were growing. 6. In this case, notice was given to the defendants, and that is all that is required by the rule. (1 Court of App. Cases, March, 1864, Judge Allen's op. p. 39. 29 N. Y. 363. 23 Wend. 351. 18 John. 141. 6 Taunt. 108. 14 Conn. 411. 2 Keyes, 315, 319. 1 Camp. 190.) (a.) The court, in the earlier cases, base the rule upon the assumption that the vendor should have an opportunity to replace the defective article, or an opportunity to ascertain whether it was defective or not. (5.) The rule itself, although affirmed in Reed v. Ramsdell, is contrary to the analogies of the law as settled in similar cases, and opposed to the opinion of the profession generally. It should not, therefore, be extended. (1 Smith's Lead. Cas. 248, 256. 2 id. 16, 17, 18, marg. p. 5 Mees. & Wels. 7. 8 id. 858, 871.)
    VI. Eo complaint can be made in regard to the amount of damages, as the referee gave only about one fourth of what the proof showed the plaintiffs to have suffered. 1. The proof showed that the slop, for which the plaintiffs paid $2371.68, was actually worth nothing. 2. But the plaintiffs were entitled to recover the difference in value between slops as they were, and their value if they had been such as the defendants agreed to deliver, (a.) That difference was proved to be at least twelve cents, making $3162.24. (5.) Interest should be added to the amount. 3. The actual damages to the plaintiffs was the loss upon the cattle in weight.
    VII. The objections taken to the admission of testimony are most of them based upon the objection to the entire right of the plaintiffs to recover, and have been already sufficiently discussed.
   By the Court, Talcott, J.

The facts in this case are substantially as follows. In October, 1866, the plaintiffs and defendants entered into a contract, in writing, by which the defendants agreed to rent to the plaintiffs a cattle barn, connected with the defendants’ distillery, till May 1, 1867, and also agreed to furnish to the plaintiffs, at the said barn, slops from their said distillery, one hundred and eighty-three bushels of slops per diem, during the term, and the plaintiffs agreed to pay for the slops and the rent of the barn, at the rate of nine cents per bushel of the slops furnished, payable monthly.

The contract was entered into by the plaintiffs with a view of fattening cattle for market, which cattle were to be kept in the barn during the winter. The defendants furnished the amount of slops, from their distillery, specified in the contract. They were received by the plaintiffs daily, and fed to the cattle, and paid for monthly as specified in the contract.

The complaint in the action, after stating the contract, and the placing of the cattle in the barn, proceeds to allege that very soon thereafter the defendants, against the dissent of the plaintiffs, purchased damaged grain, which was totally unfit for the purpose of manufacturing the slops mentioned in the contract, and used the same in their distillery, and from the same manufactured and delivered slops to the plaintiffs, which the plaintiffs refused to receive as in any way a fulfillment of the contract on the part of the defendants, and that by reason thereof the plaintiffs have sustained damages. It appears that during the winter the defendants purchased and distilled in their distillery a quantity of grain which had been contained in an elevator at Oswego, that had been burned. That a portion of the slops, and perhaps two thirds, furnished to the plaintiffs were the slops from the damaged grain; and the plaintiffs adduced testimony showing that these slops were full of gravel, ashes and cinders, and were black, and tending to show that they were not fit for the purpose of fattening cattle, and, according to some witnesses, were worth nothing at all, whereas good slops were worth from fifteen to twenty cents per bushel. They also gave evidence tending to show that some of their cattle had gained nothing at all in weight, while the majority of them had gained only an average of fifty-seven pounds per head, whereas they should have gained in weight an average of 200 pounds per head. It appeared that the plaintiffs, on several occasions, complained to the defendants, or their agent at the distillery, that the slops were not good, and on one occasione threatened to sue the defendants on that account if the cattle did not do well. Witnesses on the part of the defendants, who had used the same slops, testified that the quality was good, and that their cattle, fed on them, did well.

The referee finds that the slops furnished to the plaintiffs for 125 days of the time “ was inferior, and not merchantable,” and that by reason thereof, the plaintiffs sustained damages to the amount of $1029.37, for which sum he ordered judgment.

Van Burén, one of the plaintiffs, testified that he “knew the quality of the slops all the time it was being fed to the cattle.” And the referee finds that the payment for the slops was made after they had been received and used by the plaintiffs, and that the plaintiffs did not offer to return any of the slops to the defendants, or give them notice to take any part of them back.

On this state of facts the plaintiffs claim to sustain this recovery, upon the ground that the contract is for the sale and purchase of an article to be manufactured, and that in every such sale there is an implied warranty that the article, when delivered, shall be of a merchantable quality. We do not think the agreement in this case is to manufacture or furnish a manufactured article, in the sense of the rule referred to; or that an article designated no otherwise than as “ slops from their distillery,” constitutes a manfactured article, within the meaning of the rule which implies a warranty of merchantable quality. A manufacture is defined as “the process of making anything by art, or of reducing materials into a form fit for use by the hand, or by machinery,” and it seems to imply a proceeding wherein the object or intention of the process is to produce the article in question. The residuum, or refuse, of various kinds of manufactories is more or less valuable for certain purposes, and may be, and often is, the subject of sale, but it is not expected that the skill and attention of the manufacturer is to be devoted to the quality of the refuse material. This is not the object of the process, and its quality is wholly subordinate, and disregarded, when attention to it would interfere with the most profitable mode or material to be used in the process which is the main object of the manufacturer.

It is not reasonable to suppose that in contracts for the sale of this refuse material, it is the expectation of either party, that the manufacturer is to be controlled in his choice of material or machinery to be used, by any consideration as to the effect which it may have upon the value of the refuse material resulting from the process; and it seems absurd to suppose there can be, in the absence of express contract and of fraud or imposition, any responsibilty for the quality of what is sold as slops or swill. The plaintiffs had what they bargained for—“ slops from the said distillery ”—and it would seem reasonable ■ to apply the doctrine of caveat emptor to such a sale, if ever.

[Fourth Department, General Term, at Rochester,

January 2, 1871.

But, if there were a warranty of merchantable quality implied in such a sale, the plaintiffs would not be entitled to recover in this case, since it appears that they received and consumed the slops, from day to day, with a full knowledge of their quality, and without returning, or offering to return, them, or giving the defendants notice to take them away, or not to deliver any more. This fact, upon well settled principles governing executory contracts of sale, was a complete waiver of the alleged defects. The defendants offered to sell the article at a certain price. The plaintiffs cannot make a different contract for the defendants, or receive and use the article at a less price, without their consent; unless prevented from rejecting it by want of knowledge of, or opportunity to ascertain, the alleged defects.

It is not improbable, from the testimony, that if the plaintiffs had refused to receive and consume the slops in question, the defendants might have obtained the same or a better price from other parties. The, case on this point, seems to be entirely within the principle of Reed v. Randall, (29 N. Y. 358.) See also Hoe v. Sanborn, (21 N. Y. 552-556,) and Howard v. Hoey, (23 Wend. 350.)

The judgment must be reversed, and a new trial must be granted; costs to abide the event.

Mullin, P. J., and Johnson and Talcott, Justices.]  