
    The National Keg & Box Co., Appellant, v. William H. Baker, Respondent.
    (Supreme Court, Appellate Term,
    July, 1897.)
    1. Executory contract to manufacture — Defects—Rejection.
    Where a vendee, in an executory contract for the sale and manufacture of goods, uses a part of them after he has discovered that they do not comply with his order relative' to manufacture, he cannot rescind, as it is his duty to reject .promptly by returning or offering to return the goods or, if the vendor declines to take them back, by storing them at his risk and giving notice of the fact.
    3. Contracts — Offer and acceptance.
    Where such a vendee, after using a part of the goods, objects to the remainder as defective and offers to give a small sum for the remaining goods, and the agent of the vendor replies that he will send the vendee a bill for that part and no bill is ever sent nor any further transactions had in the matter, no new contract results between the parties and the original agreement of sale must govern.
    Appeal from a judgment of the justice of the Third .District Court. The action was to recover $130.04 for certain boxes manufactured at defendant’s request and delivered. The defense was breach of contract, refusal to accept the boxes and an agreement by which defendant was to return the boxes and pay $25 for them. Judgment was rendered for the plaintiff for $25 besides costs. The plaintiff appeals.
    Henry L. Maxson, for appellant.
    John Vincent, for respondent.
   Daly, P. J.

The plaintiff, á manufacturer of wooden boxes, supplied them to defendant upon the latter’s orders, from time to time, and this action is brought to recover for 540 boxes at the agreed price of $130.04, which were delivered on October 31, 1894, upon an order to manufacture previously given. When the boxes were delivered, the defendant examined them and found them to be full of knots, although they were required by the order to be free of knots. Notwithstanding this defect, he used about fifty of them. When the plaintiff’s agent called upon him, after the delivery, he stated that he would not accept the boxes because they were defective. The agent said he would report to the plaintiff, and shortly afterward' called upo boxes were worth $25. Defendant $25 for .them. The agent said he wo i-defendant and asked if the. replied that he would give aid send a bill for them, and the defendant replied, “ If you don’t send the bill right along they will be subject to storage charges.” Mb bill was sent.and nothing further doné.

The above statement is substantial y the defendant’s version of the transaction, as opposed to the testimony of plaintiff’s agent, who says that the proposition to give $25 for the boxes came first from defendant; that he submitted it to his company, and subsequently communicated to defendant that the proposition could not be received. But, taking the defendant’s statement: as correct, there was no agreement that the defendant should retain the boxes for $25. According to defendant’s evidence, the plaintiff’s agreement to that settlement was to be evidenced by its sending a bill for $25, and this was not done. The defendant understood that an agreement was not reached because he stored the boxes. There being no settlement the rights of the parties are to be determined without reference to the negotiations which had no result.

When the boxes were delivered, the defendant inspected them and saw that they were not as ordered. If he desired to reject them he was bound to act promptly by returning, or offering to return, the boxes and, if return was refused, by storing them, in plaintiff’s name and at its risk, giving it notice thereof. Mason v. Smith, 130 N. Y. 480; Reed v. Randall, 29 id. 363; Hargous v. Stone, 5 id. 86; Wallace M. & Co. v. Valentine, 10 Misc. Rep. 645.

Instead of promptly disaffirming and notifying the plaintiff, the defendant actually used a number of the boxes, with full knowledge that they were hot as ordered. This put .it out of his power to rescind the contract, except by consent of the vendor, and, as we have seen, there was no consent, Mo subsequent notice of rejection availed defendant, who could not disaffirm the contract as to part of the goods and retain the benefit of the other part. The plaintiff, upon the record before us, was entitled to judgment for the full amount claimed.

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

Bischoff and McAdam, JJ., concur.

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