
    John F. Sipe and Harry E. Sipe, Respondents, v. National Silk Dyeing Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Sales — warranty — when action to recover purchase price will not lie —1 when warranty cannot be construed as waiver,
    Where motor truck wheels sold under an express warranty for a year prove defective after a few days’ use an action by the seller to recover the purchase price will not lie.
    The retention by the buyer of an invoice in which an attempt was made to modify the warranty cannot be construed as a waiver thereof, nor can the retention of the wheels to allow the seller time to furnish satisfactory wheels have such effect.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiffs.
    Merrill, Rogers & Terry (Edward Ward McMahon and Crittenden H. Adams, of counsel), for appellant.
    Louis H. Porter (William C. Dodge, of counsel), for respondents.
   Philbin, J.

The plaintiffs brought this action to recover the agreed price of two patented wheels made for the defendant’s motor truck. The agreement to sell was made orally, but confirmed by a letter, dated the 7th of April, 1915, from the plaintiffs, in which it was stated that the wheels were sold subject to a trial for thirty days immediately following delivery. The plaintiffs also guaranteed the wheels “for one year without restriction, including even accidents, excepting abuse only.” The delivery of the goods by the plaintiff to the defendant was made on the 16th of June, 1915, and they were put in use shortly thereafter. After using the wheels for a few days, one of them had to be removed because of defects, and was returned to plaintiffs for repairs. Thereafter, other defects de-'"Toned, and plaintiffs made repairs from time to time until some day in August. By a letter dated the 27th oi .August, 1915, the plaintiffs said they would replace the defective yokes of the wheels. It was testified on behalf of the defendant that in July a representative of the defendant spoke on the telephone to one Lytol, the salesman of the plaintiff who made the sale to defendant, and told him of the trouble being had with the wheels and that Lytol said, in substance, to never mind the thirty days’ limitation, that the plaintiffs would give the defendant ninety days for the trial of the wheels. Lytol was not produced as a witness and did not, therefore, deny this conversation. The only attempt to show that the extension was not thus given was in the testimony of one of the plaintiffs, who testified that Lytol rarely came to the plaintiffs’ place of business. The fact that the plaintiffs made repairs long after the thirty-day period expired, tends to support defendant’s claim of an extension for ninety days, or until the 16th of September, 1915, for the trial of the wheels by defendant. The defendant could not be deemed to have accepted the goods until the trial period had expired, particularly in view of the defects which admittedly existed. It offered to return the wheels on the 3d of September, 1915.

There was an express warranty for one year, and it was certainly intended that the wheels furnished should be free from defects, even latent defects. The plaintiffs claim that the warranty was limited to the duty of keeping the wheels in repair, and rely upon some wording used in the invoice. The latter states that they will supply, without charge, any part or do any repairs due to faulty workmanship, or material or to any cause whatsoever, except the results of accident or abuse. It was not intended merely that the plain - tiffs would repair any defects in the wheels during the year without charge. The defendant was entitled to have wheels that would give service practically uninterrupted by repairs of defects.

The terms of the sale were expressed in the letter above referred to, and included a warranty for one year without any reference to workmanship, materials or repairs. The agreement originally made could not be modified simply by inserting a different version in the invoice. The plaintiffs endeavor to show that the attempted modification was accepted because the invoice was retained by the defendant, and cite some authorities bearing upon the question of account stated, but it is obvious that such a theory is inapplicable.

The circumstances would have justified the defendant rejecting the goods shortly after delivery, and its indulgence in giving the plaintiffs repeated opportunities to furnish a wheel that would conform to the terms of the contract should not be allowed to operate to its detriment. There has been no waiver of the breach of plaintiff’s warranty shown.

The fact that the wheels were the subject of frequent repairs by the plaintiffs, and that defendant, refrained from making any payment on account of the purchase, negatives any suggestion of acceptance, and rather indicates a determination of the defendant to insist upon the warranty being made good. The plaintiffs had no justification for believing that the defendant, ever intended to accept a performance of the contract so clearly inadequate. Even if the court found that the alleged extension of ninety days for trial of the wheels had not been given, there is sufficient in the attitude that the parties had been shown to have taken to preclude the conclusion that there was a waiver or acceptance by the defendant. The use of the wheels as late as October, as claimed by the plaintiffs, cannot sustain a contrary finding. McCormick Harvesting Machine Co. v. Warfield, 33 App. Div. 513; Dochtermann U. & E. Co. v. Fiss, Doerr & Carroll Co., 155 id. 162. The evidence having established that there had been a breach of warranty on the -part of the plaintiffs and that the defendant was not "precluded from availing itself of that defense by waiver or otherwise, it was error to give judgment to the plaintiffs.

Guy and Bijur, JJ., concur.

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