
    Matthew F. Norton, Resp’t, v. Bernard Dreyfuss, App’lt.
    
      (Court of Appeals,
    
    
      Filed June 7, 1887.)
    
    Acceptance of articles manufactured under executory contract
    Plaintiff having manufactured and delivered goods, and defendant claiming that defects existed, the . former received the articles back and attempted to remedy the defects and redelivered them. Defendant refusing to pay for them, dr to give them up, on the ground that he wished to consult his counsel as to his rights, on the trial of the action for the purchase price, the court ordered judgment for plaintiff, holding that defendant’s refusal to return was an acceptance of the goods. Held, error, that the case should have been left to the jury to determine as a question of fact upon the requests made by the defendant.
    Appeal from superior court of New York city, general term.
    
      John Frankenheimer, for app’lt; Edward S. Hatch, for resp’t.
   Per Curiam.

The plaintiff brings this action to recover the contract price for manufacturing and delivering certain dies and frames for the defendant. The answer was that the goods were not such as the contract required, and also set up a counter-claim. The evidence given upon the trial differed very much as to the terms and conditions of the contract, the time for its performance, the quality of the articles manufactured, their fitness for the purposes intended, and as to whether the goods delivered corresponded with the articles ordered by the defendant. It was conceded that the plaintiff manufactured and delivered goods in quantity and number corresponding with those required by liis contract, and that some faults in their character and quality were alleged *by the defendant to exist when tendered in performance of the contract. It was also proved that the plaintiff received the articles back on several occasions, and attempted to remedy the alleged defects, and finally redelivered the whole quantity to the defendant. It was then still alleged by the defendant that they did not correspond with the articles which the plaintiff contracted to make for him. Three or four days after this time the plaintiff called upon the defendant for payment of the amount claimed by him to be due upon the contract, which was refused by the defendant. The plaintiff thereupon demanded the return of the goods, and the defendant replied, in substance, that he would not then give them up, as he wished to consult counsel as to his right to keep them for reimbursement of the damages which he alleged he had sustained by reason of the plaintiff’s failure to perform his contract. The evidence as to what was said by the defendant at the time of the demand was somewhat contradictory, but we believe the above statement expresses' the meaning substantially of the defendant’s version of the transaction. The defendant gave no evidence as to the damages claimed to have been sustained by him on account of the alleged breach of contract. Upon this case, aside from some immaterial circumstances which do not affect the question of law presented, the trial court ordered judgment for the plaintiff for the amount of his claim; holding that the refusal of the defendant to return the goods, when requested, amounted to an acceptance of them upon the contract. The defendant excepted to this direction. He also requested to be allowed to go to the jury on “the question of fact involved in the case, upon the whole evidence, whether the defendant did accept the frame dies or the medallions as in compliance with the order as given by him,” and also upon the further question, “whether the defendant did absolutely refuse to return the frame dies or medallions, or whether it was a qualified refusal.” Both of the requests were denied by the court, and the defendant excepted.

We are inclined to think the trial court erred in these decisions, and that the case should have been left to the jury to determine as a question of fact upon the requests made by the defendant. It is now quite well settled that the acceptance by the vendee of articles manufactured for him under an executory contract, after an opportunity to examine them, precludes him from raising any question as to defects or imperfections which were visible and capable of discovery on inspection, unless there is a warranty of their quality which was intended to survive their acceptance, and give the vendee further time for trial and examination. When there is such a warranty, the vendee may still retain the goods; and, when action is brought for their price, may recoup such damages as he can show he has suffered by reason of the defective or inferior character of the goods delivered. He may also, in such an action, recover damages for a breach of contract on the part of the vendor, in respect to the time of its performance, if he can prove that he has suffered loss therefrom.

But these propositions do not seem to us .to dispose of the case. When one party has the property of another in his possession, and refuses to surrender it upon demand, a jury is authorized to infer from these facts a conversion of the property, but such evidence raises a question of fact alone, and cannot be determined as a question of law. We think this case is analogous to the question arising in an action of trover. Here two courses were open to the defendant to adopt in case he was dissatisfied with the-performance of the contract by the plaintiff, and was satisfied that he had a warranty of the goods which would survive their acceptance. He could return the goods, and plead the rescission of the contract as a defense to the action for their price, or he could keep the property, relying upon his warranty to recover such damages as he could show he had suffered by its breach as a counter-claim to the plaintiff’s- action for their price. These defenses are, however, inconsistent with each other, and cannot both be sustained in the same action. In case of a return of the goods and proof of their defective character, or a valid offer to rescind the contract, he makes out a defense to the claim to recover their price. If he retains the goods, however, and attempts to recoup his damages for a breach of warranty, he may, provided he claims an affirmative judgment in his answer, not only defeat any recovery, but recover judgment for the entire amount of damages shown by his proofs which exceed the plaintiff’s claim.

It is quite uncertain, on the pleadings and evidence in the case, what line of defense the defendant really attempted to adopt, for the evidence was about as applicable to one theory as the other. While he admitted that he had declined to give up the goods, he strenuously insisted that he had always refused to accept them; and, while denying that he ever became liable for their price, he claims that he was entitled to damages for the plaintiff’s non-performance of his contract. Under these circumstances we think it was a question for the jury to determine whether the defendant’s refusal to give up the goods was an election to accept them, or simply a tentative proceeding to give him further time for examination and trial, or whether it was the expression of a determination to keep them, and rely upon the damages which he might be able to prove arising from the alleged breach of warranty to their quality, and the nonperformance of the contract in other respects by the plaintiff.

By the direction of a verdict the defendant was deprived of the right of going to the jury on the question of the worthlessness of the goods to the defendant as a performance of the contract. The evidence upon this question was quite contradictory, and the jury might well have found either way upon the question. If they had found that the goods were utterly valueless to the defendant, he would then have made out a defense, and was then entitled to a verdict at their hands. If they found, however, that the refusal of the defendant to redeliver them was intended as an acceptance, or that the goods delivered were substantially the same as those ordered, and his refusal to return was dictated by an intention to evade the payment of the contract price after finding that they were not adapted to the purpose he designed for them, the jury would have been justified in giving a verdict for the price. But the question as to whether such a demand and refusal, under all the circumstances of the case, was the equivalent of an acceptance of the goods under the contract, was a question for the jury to determine, and could not be decided as a question of law.

We are, therefore, of the opinion that the judgments of the courts below should be reversed and a new trial ordered, with costs to abide the event.

All concur, except Buger, Oh. J., and Earl, J., not voting.  