
    The Atlantic Coast Lumber Corporation, Appellant, v. McCaldin Bros. Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Sales — warranties — fulfillment or breach — waiver of defects by purchaser—■ acceptance as waiver.
    Statements made by plaintiff’s salesman on a' sale of certain box bark strips that “ the only thing that was the matter with them was that they were weather-beaten at the ends, the usual run of box bark strips, but were better than others previously purchased by defendant,” are not warranties that will survive acceptance of said strips.
    Where, in an action to recover the purchase price, it appears that alleged defects in said strips were discoverable on inspection, that defendant accepted them and used part, it cannot plead a breach of warranty as a partial defense. Had defendant desired to repudiate the sale it should have rejected the strips.
    Appeal by the plaintiff from a judgment of the City Court of the. city of ¡New York entered in its favor upon the verdict of a' jury.
    Conway, Williams & Kelly (D. Theodore Kelly and F. Ferris Hewitt, of counsel), for.appellant.
    Ralph James M. Bullowa, for respondent.
   Page, J.

The action was to recover $755.17, the agreed price of certain lumber sold and delivered by the plaintiff to the defendant. The defendant admitted that it had' used one-third of the lumber, but claimed the right to reject the remainder, and pleads as a defense to this action that the plaintiff warranted the lumber to be merchantable and fit for use, and as good, if' not better, than the lumber'heretofore delivered by the plaintiff to the defendant, which they allege it was not, and that the lumber delivered was worth $550 less than it would have been had it been as represented. The jury found a verdict for the plaintiff for the sum of $250. '

Hr. McCaldin testified that the plaintifi’s salesman came to his office and said “ that he had 150,000 feet in the dock of box bark strips which he would let me have for ten dollars a thousand feet, which was much below the market value -— and the only thing that was the matter with them-was that they were weather-beaten at the ends, the usual run of box bark strips * * *. I had purchased box bark strips from him before. He said that this was better than the others. It was a better lot of strips than we had before.” Conceding that the salesman made these statements they were mere descriptions, and,, as the alleged defects were patent and discoverable upon inspection, if defendant desired to repudiate the sale it should have rejected them, but in this case it accepted the lumber and used a part. There was no warranty that would survive acceptance. Staiger v. Soht, 116 App. Div. 874; affd., 191 N. Y. 527, and cases there cited.

The case was submitted to the jury on an erroneous theory and proper exception was taken.

The judgment is, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event.

Seabury and Lehman, JJ., concur. ‘

Judgment reversed and new trial ordered, with costs to appellant to abide event.  