
    William Wallace et al., Resp’ts, v. Frederick A. Blake et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed October 25, 1888.)
    
    I Contract—When executory—No warranty as to quality—When PRESUMED TO HAVE ' ACQUIESCED—May NOT COMPLAIN OF INFERIOR QUALITY.
    Plaintiffs were manufacturers of worsted yarns About the 20th of June 1886, the defendants requested the plaintiffs' firm to manufacture for defendants 500 pounds of yarn known as No. 260 at an agreed price. On the thirtieth of June defendants requested plaintiffs' firm to manufacture for them 500 pounds of same yarn, and also to duplicate said order two weeks later. By further terms of the agreement the defendants undertook to pay the reasonable charge for packing and the consular fees and commission fees paid by plaintiffs for the export of said’ yarn from England, Plaintiffs promptly manufactured all of said yarn. Pursuant to their former course of dealing the plaintiffs delivered to defendants-about July, 1886, the yarn ordered on June twentieth, by delivering the same to a common carrier at Liverpool, shipped to defendants at New York, and, plaintiffs forwarded to defendants the invoice and shipping documents' relating thereto by mail, and about August thirteenth plaintiff delivered to defendants the 1,000 pounds of yarn in the same manner, the defendants receiving the invoice and "shipping documents relating thereto. On July 8, 1886, defendants requested plaintiffs to delay shipping the 1,000 pounds until defendants should further instruct them which they failed to do. The defendants paid for the first 500 pounds ordered» with charges for packing, etc., but have not paid for the 1,000 pounds, claiming that said yarn was unsound, and unfit for use and not according to said order Hdd, that this was an executory contract of sale—to manufacture a certain article not theretofore in existence. No warranty of quality was given at,any time. The order was merely descriptive, designating the articles desired. The goods shipped were never returned or offered to be returned, and there having been no collateral warranty or agreement as to quality, the defendants are conclusively presumed to have acquiesced and may not thereafter complain of inferior quality.
    ,2. Same—When vendee cannot retain goods and recoup damages.
    Unless there be a warranty as to quality, the vendee cannot retain the goods and recoup any damage he may have suffered by reason of unsoundness or inferiority as against the price agreed to be paid. A different rule applies where a warranty of quality was given. In such a case the purchaser may either return the goods and rescind the contract, or retain, them and recover any loss he may have sustained by the breach of the warranty (following Coplay Iron Co. v. Pope, 13 N. Y. State Rep., 480, and Norton v Prey fue, 8 id., 570).
    3. Same—When warranty implied.
    If the goods are to be used for a specific purpose, if that purpose be communicated to the manufacturer, a warranty to that extent will be implied.
    
      4. Same—When entitled to recover contract price.
    The yarn was manufactui ed, and although not shipped because of the defendant's cablegram not to ship until further notice, after having-been held for four weeks, it was then delivered to a common carrier at Liverpool, as all the previous shipments had been made and the invoice and shipping documents mailed to defendants, Nothing more remained for plaintiffs to do, and no legal ground appearing for the non-acceptance of the goods by the defendants, the plaintiffs were entitled to recover the contract price
    
      Appeal from a judgment entered upon a direction of a verdict in favor of plaintiffs, and from an order denying defendant’s motion for a new trial.
    The complaint alleged that the plaintiffs were manufacturers of worsted yarns, under the firm name of Wallace & Co., near Bradford, in Yorkshire, England ; that about the 20th of June, 1886, the defendants requested the plaintiff’s firm to manufacture for defendants 500 pounds of yarn, known as No. 260, at an agreed price of 29d. sterling per pound; that on or about the 30th day of June the defendants requested plaintiff’s firm to manufacture for said defendants the further amount of 500 pounds of said yarn, known as No. 260, at the same price, and also to duplicate said order of June 30th, two weeks later; that by the further terms of the agreement between the plaintiffs and the defendants, the defendants undertook to pay the reasonable charge for packing said yarn in bale and the consular fees and commission fees paid by plaintiffs for the export of said yarn from England ; that plaintiffs promptly proceeded to and did manufacture for the defendants all the aforesaid yarn.
    That there had been several dealings between the plaintiffs and defendants prior to the transactions therein set forth, by which the plaintiffs had manufactured for and sold and delivered to the defendants, yarns of plaintiff’s manufacture, and such several prior deliveries were made by delivering to common carriers at Liverpool, England, to wit: Ocean steamship companies, and shipping such deliveries to defendants at New York, and forwarding said defendants the respective invoices and shipping documents by mail. That pursuant to the course of dealing described in the foregoing clause of the complaint, the plaintiffs delivered to the defendants in or about the month of July, 1886, the yarn ordered on June 20, 1886, by delivering the same to a common carrier- at Liverpool, England, shipped to defendants at New York, and plaintiffs forwarded to defendants the_ invoice and shipping documents relating thereto, by mail, and on or about August 13, 1886, plaintiffs delivered to defendants the 1,000 pounds of yarn ordered by defendants on June thirtieth, by delivering them to a common carrier at Liverpool, England, for transportation to New York, shipped to defendants at New York, and defendants received the invoice and shipping documents relating thereto. That on or about the 8th day of July, 1886, the defendants requested plaintiffs to delay shipping the 1,000 pounds of yarn until defendants should further instruct them. That defendants failed to request or instruct them to ship the 1,000 pounds of yarn aftér July 8, 1886. That defendants paid for the 500 pounds of yarn ordered June 20, 1886, and paid the charges for packing the same in bale, and the consular and commissioner’s charges thereon, but have not paid the 1,000 pounds of yarn nor the similar charges thereon, amounting in all to $594.74 money of the United States. The answer denies knowledge or information of plaintiff’s co-partnership. Admits that defendants are co-partners, and that in the summer of 1886, they requested plaintiffs to manufacture for them 1,000 pounds of yarn, the same to be of sound and merchantable quality, properly packed. Denies that said yarn was ever delivered to or accepted by the defendants, or that they had ever accepted or designated the ocean steamship companies or their agents, to accept said yarn. Alleges on information and belief, that said yarn was-unsound and unmerchantable and unfit* for use, and not according to said order. The answer then sets up a counterclaim arising out of the sale of the order of J une twenty, of 500 pounds by reason of the unsoundness thereof claiming $200 damages. There are no other denials, and the allegations of the complaint not denied, necessarily stand admitted. The first lot of 500 pounds were sold by defendants to one Thomas Kitson, of Pennsylvania. The 1,000 pounds were returned to the plaintiffs.
    On the trial, a verdict was directed for the plaintiffs, to> which defendants excepted.
    
      Won. C. Beecher, for app’lts; Carlisle Norwood, Jr., for resp’ts.
   Nehrbas, J.

The question of plaintiffs’ copartnership is not seriously contested, as defendants make no mention thereof on their brief. It is, in my opinion, practically admitted by the allegations contained in the answer, in which they speak of their dealings with the plaintiffs.

The motion made to dismiss the complaint when the plaintiff rested was properly denied. The goods had been manufactured at defendants’ request, and they could not, by declining to receive them, deprive the plaintiffs from recovering the contract price.

At the close of the case the motion to dismiss was renewed, and defendants’ counsel asked leave to go to the jury upon the question as to whether the goods were shipped under an implied warranty under the contract to manufacture; also upon the counterclaim of a breach of the implied warranty. These motions were severally denied under exception.

This was an executory contract of sale—to manufacture a certain article not theretofore in existence. No warranty of quality was given at any time. The goods ordered were a certain number of pounds of yarn known as No. 260, merely descriptive, designating the article desired. Five hundred pounds of this yarn were shipped to, received and paid for by the defendants.

These goods were never returned or offered to be returned to the plaintiffs, and there having been no collateral war ■ ranty or agreement as to quality, the defendants are conclusively presumed to have acquiesced, and may not thereafter complain of inferior quality. The Coplay Iron Company v. Pope, 108 N. Y., 232; 13 N. Y. State Rep., 480. Nor was "there any warranty of quality as to the 1,000 pounds ordered, shipment whereof was interdicted by the defendants.

They were, nevertheless, sent to New York, but were reshipped by the defendants to England, not having been opened or examined by them. They relied upon their proof of the inferiority of the 500 pounds to show that the 1,000 pounds were probably of the same quality. But as the proof of inferiority, if any existed, in the yarn delivered and paid for, could not be established on the trial, because no warranty was proven, and it being beyond the power of the defendants to return the goods, there is nothing before us from which we might conclude that the 1,000 pounds returned unexamined were inferior, and not exactly as ordered, to wit, yarn No. 260, a proper, merchantable article. For this reason there was nothing to be submitted to the jury upon the question of warranty, express or implied.

The counterclaim of the defendants is inadmissible. The 500 pounds were received at defendants’ store, where they removed twenty or thirty pounds from the-bale in which the yarn was packed, and forwarded the balance to a Mr. Kitson, to whom they had sold the 500 pounds. Mr. Kitson had the yarn dyed, and attempted to manufacture it into cloth. He asked for, and was allowed by defendants, $180 to $200 by reason of the condition of the yarn. This is the basis of defendants’ counterclaim. By the decision in Coplay Iron Co. v. Pope (supra), it is manifest, that unless there be a warranty as to quality, the vendee cannot retain the goods and recoup any damage he may have' suffered by reason of unsoundness or inferiority as against the price agreed to be paid. The goods must be returned or paid for A different rule applies where a warranty of quality was given. In such a case the purchaser may either return the goods and rescind the contract, or retain them and recover any loss he may have retained by the breach of the warranty. Norton v. Dreyfuss, 106 N. Y., 90, 8 N. Y. State Rep.; 570; Brigg v. Hilton, 99 N. Y., 517.

So also, if the goods are to be used for a specific purpose, if that purpose be commuicated to the manufacturer, a warranty to that extent will be implied. In this case the evidence discloses that the derendants could have ascertained any defects in the yarn if they had examined it in this city before forwarding it to their vendee in Philadelphia. But they neglected to do so, and relied upon the ex-animation to be made by Mr. Kitson, to whom they had sold the yarn. The allowance made by the defendants, to Mr. Kitson, is therefore, .not a proper subject of counterclaim as against the plaintiffs.

The exceptions taken to the exclusion of the testimony of Mr. Kitson, concerning his examination of the yarn after the sale to him, and its condition upon his receipt thereof, and after the same had been dyed, are equally untenable. For that became immaterial after the defendants had put it out of their power to return the goods to the plaintiffs. Nor was it competent to show, by analogy, that the 1,000 pounds returned to plaintiffs unexamined, were not what had been contracted for. While the 600 pounds may have been inferior, that, of itself, would be no proof that the 1.000 pounds were equally bad. The questions were, conse ■ quently properly excluded.

The form of the action is assailed. It is conceded that, this is not an executed contract of sale and delivery. It is an agreement to manufacture, and therefore, executory in its nature. Parsons v. Loucks, 48 N. Y., 17; Cooke v. Millard, 65 id., 352. The plaintiffs before they can recover from the defendants, must show that they have performed everything that is to be done on their part to complete the sale and transfer the ownership of the thing sold to the purchasers, and place it at their disposal, so far, at least, to enable the latter to obtain possession of it, and deal with it as they may think fit, on payment or tender of the price. Addison on Contracts, 546; Smith v. Chance, 2 B. & Aid., 153. All this has been accomplished by the plaintiffs. The yarn was manufactured, and was not shipped immediately, because of the defendants’ cablegram not to ship until fur ther notice. They were held five weeks, and then delivered to a common carrier at Liverpool, as all the previous shipments had been made, and the invoice and shipping documents mailed to the defendants. Nothing more remained for plaintiffs to do. And no legal ground appearing for the non-acceptance of the goods by the defendants, the plaint • iffs were entitled to recover the contract-price.

In Butler v. Butler (77 N. Y., 412), the plaintiff had not fully performed his agreement, and in that case it was properly held that he could not recover on the contract, but must sue for its breach. Here the contract was performed, and the defendants cannot elude payment by simply declining to receive and accept the goods manufactured.

The judgment and order appealed from should, therefore, be severally affirmed, with costs.

McGrows, J., concurs; Pitshke, J., dissents.  