
    Mason et al. v. Smith et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 28, 1889.)
    Sale bt Sample.
    Defendants bought goods from plaintiffs by sample, and after examination returned a portion as defective, asking concessions as to the rest. Plaintiffs gave credit for those returned, and offered to substitute perfect goods for others found defective. Defendants returned the whole lot, and plaintiffs shipped perfect goods, which defendants refused to receive. Held, in an action for the goods first sent, less the credit given, that the right to repudiate the contract was lost by the return of a portion only of the goods after an examination of all, and that it was not error to direct a verdict for plaintiffs.
    Appeal from circuit court, Fulton county.
    Action on account by John F. Mason and others against George. Y. Smith and others. The plaintiffs are manufacturers and importers of gloves at Johnstown, Y. Y. The defendants are retail sellers of gloves and other dry goods in Kansas City, Mo. The plaintiffs’ traveling salesman, April 8,1887, at the defendants’ store in Kansas City, upon the exhibition of samples of No. 1, first quality gloves, made an agreement in behalf of the plaintiffs to sell to the defendants a bill of gloves as specified in an order then made, the same to be of the quality of the samples shown, the gloves to be sent to the defendants August 15,1887; and the defendants agreed to buy and pay for the same at the prices then fixed. The gloves were to be thereafter made or imported by the plaintiffs. The plaintiffs did .import and send.to the defendants on August 31,1887, the gloves as ordered, except that the quality of a portion of them was inferior to that of the samples. The gloves were received by the defendants September 17, 1887. The defendants immediately placed some of them on sale, and found them to be defective, the gloves breaking when fitted to the hands of customers. The defendants carefully examined every pair of the gloves before October 1,1887. The liability of the gloves to bi;eak would not be detected upon such examination. October 6, 1887, the defendants returned to the plaintiffs 21-12 dozen of the gloves, and wrote them as follows:
    “Kansas City, Mo., October 6, 1887. “Messrs. Mason; Campbell <& Co., Johnstown, N. Y.~Gentlemen: We return to you to-day, IT. S. Ex., kid gloves as per inclosed bill. You, will find on examination that they are not perfect, and for this we will ask you to kindly credit our account with amount. We have, at this late date, examined every pair of these gloves, and are not at all satisfied with them. Would much rather return same to you than to place them on sale, as they do not open up as we think they should. We should prefer not to accept these even at a 10 per cent, allowance. Should have advised you at an earlier date, but could not make proper examination sooner. Awaiting your reply, we remain “Yours, resp., G. Y. Smith & Co.”
    The plaintiffs credited the defendants with the price of the gloves returned, and October 22, 1887, wrote the defendants as follows, (omitting immaterial paragraphs:)
    
      “Messrs. Gf. Y. Smith & Co., Kansas City, Mo.—Gentlemen: Your favor of the 6th i nst. received, and in the rush of business at .this season of the year we find this our first opportunity to reply. We-have examined the goods returned by you, and consider you justified in- returning the same. We will frankly admit that the goods shipped you left our factory-immediately after arriving'in port, and without an examination by us. * * * Consequently our orders were behind, and as soon as the goods came in they were reshipped immediately, that our customers might not be disappointed longer than necessary, and the goods escaped our notice. Since receiving your letter we have examined carefully the portion of this importation still in the factory, and must admit that we do not find them what they should be. * * * We have reached this conclusion: ' You are at liberty to examine our goods, pick -out the seconds, and all the goods (leaving the matter to your judgment and idea of what is fair) which are not satisfactory you may return, and we will be glad to send you in exchange A No. 1 goods. We wish to do what is right in this matter! and trust that in the above proposition you will find proof of the fact. Hoping this will meet your approval, and awaiting returns, we are “Yours, very truly, Mason, Campbell & Co.”
    The defendants continued keeping the gloves, or some of them, on sale until they received the above letter. October 25,1887, the defendants returned the plaintiffs 37 7-12 dozen gloves, and wrote them as follows:
    “Gentlemen: • Your favor of the 22d inst. received, and contents carefully noted. After making another thorough examination of the kid gloves in question, we have decided to return them. This we do to-day by U". S. Ex. We inclose bill, and ask you to please credit us with the amount.
    “Yours, truly, G. Y. Smith & Co.”
    October 27,1887, the defendants returned plaintiffs 8 6-12 dozen gloves, and wrote them as follows:
    
      “Gentlemen: We return to you to-day, U. S. Ex., No. 864, 27-12 doz. men’s gloves. These goods are worse than the worst of seconds, and are such that we cannot use. In ordering, we gave our order for first quality goods, not seconds, as sent. With these return the ladies’ black piques, and will ask you kindly to credit both lots. We do this very reluctantly, but are compelled to do so, in order to protect both our customers and ourselves.
    “Yours, resp., G. Y. Smith & Co.”
    November 3, 1887, the defendants returned to plaintiffs the balance of the gloves remaining, having sold altogether 5¿- dozen, and wrote plaintiffs as follows:
    “Gentlemen: By to-day’s exp. we return to you the No. 946 kid gloves. We have kept these until now, thinking that we could possibly dispose of them, but we find that they are so entirely unsatisfactory that we think it best to return them now. We think that you will plainly see that we are justified in doing this. We hope that you will have no hesitancy in crediting them. Please do so, and greatly oblige
    “Yours, truly, G. Y. Smith & Co.”
    November 10, 1887, the plaintiffs wrote the defendants as follows, sending them by express the gloves specified in the letter:
    “Gentlemen: We are in rect. of your favors of Oct. 25th, Oct. 27th, and Nov. 3d, with goods referred to in each, respectively. We have examined every pair of these goods, and this day, according to agreement, we return to you other goods perfect in every particular, as follows:
    “As returned with your favor of Oct. 25th—
    “31 7-12 doz. ladies’ gloves, @ $16.50.
    “As per favor of Oct. 27 th—
    “No. 864, 2 7-12 dok. gents’ gloves, @ $9.50.
    “No. 946, 5 11-12 “ ladies’ It. C. gloves, @ $20.00.
    “As per favor of Nov. 3d—
    “No. 946, 11 11-12 doz. ladies’ B. C. gloves, @ $20.00.
    “No. 946, l “ “ “ “ @ $20.00.
    “We know what these goods are, as they have passed under our personal inspection, and you will not be able to find fault with them. We did not suppose, when we gave you permission to examine the goods, and return those which were defective, (which was extraordinary in itself,) that you would abuse the privileges, and submit us to express chgs. on the entire lot, when in truth there were but few pairs comparatively at fault. We are still at a loss to understand in what way the Bussian calf goods were defective, for it is evident to any judge of gloves that they are the finest and most perfect goods in every particular that can be brought to this country. The first few pairs of ladies gloves retd, to us were credited on your acct., and we did not bother to exchange them. As it was, we were hindered at our busiest season to inspect goods which, when examined, proved perfect in a majority of cases. Confident that we will receive no more complaints on these goods, and assuring you that we will listen to none, for we now know positively what the goods are, we are
    “Yours, truly, etc., Mason, Campbell & Co.”
    The defendants ref used to receive the gloves last sent them by plaintiffs, and caused them to be returned by express to the plaintiffs without opening the box containing them, and wrote them to that effect, and that they could not try to sell the goods. The plaintiffs refused to receive the box containing them from the express office. Evidénce was given tending to show that September and October are the best months for the retail trade in gloves. This action is to recover for the bill of gloves first sent, less the credit given for those first returned. The court directed a verdict for the plaintiffs, holding that the defendants had had ample opportunity to examine, and had examined, the gloves before they received the plaintiffs’ letter of October 22,1887, and that, not having returned them because of .their non-conformity to the sample, the title to the gloves vested in the defendants, and that they did return them pursuant to plaintiffs’ proposition in their letter of October- 22d, and were therefore bound by its terms to accept the gloves sent them by plaintiffs, November 10, 1887, and hence the plaintiffs’ right to recover was complete. The defendants asked to go to the jury upon the evidence. The court refused, and defendants excepted.'
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Arthur R. Robertson, for appellants. John M. Carroll, for respondents.
   Landon, J.

This was an executory contract for the sale and delivery of the gloves. The defendants were not obliged to keep the gloves if they were not of the kind and quality ordered; that is, No. 1, first quality, of the styles specified. When defendants received the gloves, it was their duty to examine them as promptly as they reasonably could,—some of the cases say immediately,—and if they found the gloves were not the gloves ordered, but varied from the order in any respect unsatisfactory to themselves, they were put to their election either to accept or reject them. Failing to return them, or to give the plaintiffs notice to take them back, they are presumed to have accepted them. Reed v. Randall, 29 N. Y. 358; Manufacturing Co. v. Allen, 53 N. Y. 515; McCormick v. Sarson, 45 N. Y. 265; Beck v. Sheldon, 48 N. Y. 365; Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. Rep. 335. The evidence shows that the defendants did examine the gloves, and on October 6, 1887, returned a small parcel of them as defective. They had examined every pair of them. They knew how they looked and felt, and had fitted enough of them to their customers’ hands to know to what extent to expect breakage in that process. The plaintiffs accepted the returned parcel without objection. The defendants’ letter of October 6th to the plaintiffs states as the result of their examination, which the letter speaks of as a “proper examination,” that “ we are not at all satisfied with them.” It appears from that letter that they elected to return a part, and invited concessions from the plaintiffs as to the rest. They say: “We would much rathér return them to you than to place them on sále, as they do not open up as we think they should. We should prefer not to accept these even at ten per cent, allowance. * * * Awaiting your reply, we remain,” etc. Returning part, and retaining the rest, after examination, was a loss of the right of further return. The matter thenceforth rested upon such concessions as the plaintiffs might make. The plaintiffs made concessions in their letter of October 22d. These were that the defendants might return such gloves as did not suit them, and plaintiffs would replace them with “A No. 1 goods.” The defendants thereupon returned all the gloves unsold, and plaintiffs sent them the “A No. 1 goods,” and defendants rejected them without examination. The defendants have no remedy upon the original contract, and none upon the subsequent' one. The replaced gloves became theirs, and their refusal to accept them was their own fault. There is no disputed question of fact, and we think it was the duty of the court to declare the law, and direct the verdict for the plaintiffs. Judgment affirmed,'with costs. All concur.  