
    Meyer Lichtenstein, Appellant, v. Harry Rabolinsky, Respondent.
    
      Collateral warranty distinguished from a mere description of goods sold—the words “good, clean husheling scrap” held to constitute a guaranty that the article was free from foreign matter.
    
    A carload of busheling scrap was sold under the vendor’s guaranty that the goods were “good, clean busheling scrap.” Busheling scrap has a definite signification, and consists of small pieces of wrought iron and steel, arid there are two classes thereof, known as No. 1 and No. 8. At the time of the sale the vendee had an opportunity to inspect the goods, but did not avail himself thereof. The busheling scrap, when delivered, proved to be mixed with dirt and small pieces of malleable iron, cast iron, tin, etc., which foreign substance impaired the value of the entire lot. The busheling scrap itself was not defective.
    
      Meld, that the guaranty that the goods sold were “good, clean busheling scrap” was not a mere description of the goods sold, but was a collateral warranty which the vendee could rely upon without inspecting the goods, and which survived acceptance thereof;
    That such expression did not identify any particular type of busheling scrap, but conveyed the impression and guaranteed that the article to be delivered was free from foreign matter.
    In an executory contract of sale where an article known to the trade by a specific designation is sold by this known designation there is no warranty of quality. The words describe the article sold, and if a different kind of goods is delivered it is the duty of the purchaser to examine them with reasonable promptness and return them at once if unsatisfactory.
    In case of a sale by sample there is a warranty that the goods delivered will conform to the sample.
    If upon a sale the seller expressly warrants the goods to be of a certain quality there is no duty of inspection imposed upon the purchaser. He may have the opportunity to examine, but his failure to do so does not absolve the seller from the effect of his warranty. The vendee may rely upon the warranty; that survives acceptance, and the vendor is liable in damages for breach of his collateral independent undertaking.
    McLennan, P. J., and Stover, J., dissented.
    Appeal by the plaintiff, Meyer Lichtenstein, from, an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 17th day of December, 1903, as modified by an order made at the Erie Special Term and entered in said clerk’s office on the 23d day of December, 1903, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff and granting a new trial of the action.
    
      August Beaker, for the appellant.
    
      Maulsby Kimball, for the respondent.
   Spring, J.:

In January, 1900, the defendant sold to plaintiff a carload of busheling scrap. The sale was made by verbal agreement which was subsequently confirmed by a letter from the defendant and a reply by the plaintiff.

The evidence of the plaintiff and his witnesses is that the defendant guaranteed that the goods he sold were “good, clean busheling scrap.” The plaintiff claims that this expression constituted a collateral warranty of quality of the material sold and has sued to recover damages for breach thereof. The court at Trial- Term granted the motion for a new trial on the ground that “ the warranty proved did not survive acceptance.”

When the case was in this court before, it was held that parol proof of the warranty was competent on the ground that the letters or memoranda did not contain the entire agreement of the parties (75 App. Div. 66).

“Busheling scrap” has a definite signification. It consists of small pieces of wrought iron and steel. There are two grades, No. 1 and No. 2. The contract of sale was made on defendant’s premises. The scrap was in a bin near at hand, and the plaintiff had the opportunity to inspect, but the verdict of the jury establishes that he did not avail himself of the privilege. If there was a collateral warranty the plaintiff was not bound to examine the scrap sold. He could rely on the representations made, and if the goods were defective and failed to conform to the warranty he might retain them and recover for the breach. (Brigg v. Hilton, 99 N. Y. 517; Henry & Co. v. Talcott, 175 id. 385.)

These goods were loaded from the bin on the car by the plaintiff’s men and were shipped to Latonia, O. They were found to contain dirt and small pieces of malleable iron, cast iron, tin, etc., impairing the value of the whole commodity. The plaintiff sold at a loss, due it is claimed to the foreign substances mixed in with the busheling scrap.

The serious question in the case is whether the representation made Was in the nature of a warranty of quality or a mere description of the goods sold. There is no contention that the busheling scrap -— the pieces of wrought iron and steel — was defective. The whole lot was diminished in value because of the presence of these other substances, not that the scrap iron was of inferior quality. Instead of delivering only busheling scrap there was other noxious material delivered with it. The contention of the defendant is that the collateral warranty does not extend to the other refuse material. If the busheling scrap had not conformed to the guaranty in quality, the warranty would have survived acceptance, but inasmuch as that Was not defective there is no warranty.

The rule that a representation merely descriptive of the article sold is not a warranty is laid down in Cowen’s Treatise (Vol. 1 [3d ed.] 354), which is a compendium of good law well stated. It is there stated that where a wood described as brazilletto wood was intended to be sold while that in fact delivered was peaehum wood and in another case cited where the cloth to be sold was a kind known as blue guineas while that received by the purchaser was another kind, it was held that the representation made in each instance was merely descriptive of the article sold and not a warranty of quality. The seller failed to perform the precedent condition of his contract in that he did not deliver the article which he has contracted to sell.

This principle has been adhered to without deviation, although in the particular cases the distinction between a failure to comply with the agreement and a collateral warranty is somewhat finely drawn. In Coplay Iron Company v. Pope (108 N. Y. 232) the plaintiff, a manufacturer, sold to the defendants a quantity of No. 1 extra foundry pig iron to be thereafter manufactured and delivered. There was no collateral warranty. The iron delivered in fulfillment of the executory contract was not No. 1 extra iron but a grade of inferior quality and value. The court held, there being no warranty of quality, that the defendants having accepted and retained the iron after an opportunity to inspect the same the construction was conclusive that they had acquiesced in its quality. The court add (at p. 236): Here there was no collateral warranty or agreement as to the quality of the iron. The representation as to the kind and quality of iron was part of the contract of sale itself, descriptive simply of the article to be delivered in the future; and clearly, within the cases cited, an acceptance of the property by the defendants, without any offer to return the same at any time, deprives them of any right to make complaint of its inferior quality.”

So in Waeber v. Talbot (167 N. Y. 48), the defendants, who were canners of vegetables, sold to the plaintiffs cases of “ Talbot Extra Fine Peas, Sieve 23-24.” The words “ Sieve 23-24 ” were well known to the trade indicating the size of the mesh through which the product was sifted. It will be observed that there was no warranty of quality accompanying this executory contract of sale and no such question was submitted to the jury or considered on the trial ultimately. The peas delivered were of the precise kind sold, but by reason of a drought were inferior in quality. The court held that the words were descriptive and that it was the duty of the plaintiffs to inspect the goods within a reasonable time, and if they were unsatisfactory to return them and rescind the agreement. The court (at p. 57) approves the following extract from Benjamin on Sales (7th Am. ed. § 600): “ If the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser’s liability; and if this condition be not performed the purchaser is entitled to reject the article, or, if he has paid for it, to recover the price as money had and received for his use.”

In Gentilli v. Starace (133 N. Y. 140); Carleton v. Lombard, Ayres & Co. (149 id. 137, 601), and the other cases on this proposition cited in the brief of the respondent’s counsel, the words used were merely descriptive of the character of the article agreed to be sold, and in each case the court carefully notes that no express warranty was given.

We think from the mass of authority upon the subject under consideration two or three principles may be deemed to be fundamental : First, that in an executory contract of sale where an article known to the trade by a specific designation is sold by this known designation there is no warranty of quality. The words describe the article sold, and if a different kind of goods is delivered it is the duty of the purchaser to examine them with reasonable promptness and return them at once if unsatisfactory. Second, in case of a sale by sample there is a warranty that the goods delivered will conform to the sample. Third, if upon a sale the seller expressly warrants the goods to be of a certain quality there is no duty of inspection upon the purchaser. He may have the opportunity to examine, but his failure to do so does not absolve the seller from the effect of his warranty. The vendee may rely upon the warranty ; that survives acceptance, and the vendor is liable in damages for breach of his collateral independent undertaking.

I take it that if a vendor sells a quantity of wheat, guaranteeing it to be clean, and the buyer relies upon the warranty, and there are dirt and extraneous material mixed with the wheat, the words amount to a warranty against this foreign substance. On the other hand, if he says the wheat is No. 1 hard, that term having a precise significance in the trade, and delivers No. 2 or some other inferior grade, there is no breach of warranty. The seller has not performed his agreement at all, and the remedy of the purchaser is to reject the wheat as soon as he learns that the contract has not been complied with. So, if he deliver No. 1 hard of a defective quality, there is no collateral undertaking because the seller did not warrant the quality of the wheat sold.

In the present case the defendant guaranteed that the busheling scrap was good and clean. This representation did not refer to any particular grade, nor to a specific kind known to the trade. The terms of accepted description in busheling scrap nomenclature were No. 1 and No. 2. Had the defendant described the scrap he sold as No. 1, and then delivered No. 2 or an inferior grade, his case would come within the compass of the authorities cited, holding the words used were descriptive and a part of the contract of sale. The expression “ good, clean busheling scrap ” did not identify any particular type of busheling scrap», but conveyed the impression and guaranteed that the article to be delivered was free from foreign matter. It was an affirmation of an existing fact as to the condition of the scrap, and that is the essence of a warranty.

The infirmity in the position of the counsel for the respondent, so well urged, is that it overlooks the crucial fact that the representation made by the defendant extends beyond the grade of the goods. The term “ clean ” may be applied to a great variety of merchandise, and its scope and meaning are within the comprehension of any one. Clean busheling scrap, like clean oats or clean flour or clean seed grain, needs no expert to define it. The term does not relate to the particular grade, but to the quality of the article sold considered in its entirety.

The order should be reversed, with costs of this appeal to the appellant, and judgment ordered on the verdict in favor of the plaintiff, with costs.

All concurred, except McLennan, P. J., and Stover, J., who dissented.

Order reversed, with costs of this appeal, and judgment ordered for. the plaintiff on the verdict, with costs.  