
    Orville M. Knox, Resp’t, v. Max Schoenthal, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 20, 1891.)
    
    1. Sale—Defense.
    Plaintiff having contracted to purchase hops of one D., the contract providing that the bales -were to weigh from 180 to 200 pounds each, defendant bought the contract of him but upon delivery of the hops refused to accept them on the ground that they were slack dried and unmerchantable. Plaintiff paid the contract price to D., and resold the hops. In an action for a deficiency, Held, that the fact that some of the bales weighed less than 180 pounds, although the aggregate weight was correct, was not available to defendant.
    2. Same—Notice of resale.
    Plaintiff gave notice of the resale to an agent of defendant who was duly authorized to make contracts in relation to purchasing, receiving and paying for hops, and who made the contract with plaintiff. The agency-had then terminated, but of this plaintiff had no knowledge. Held, that plaintiff was justified in giving notice to such agent and that it was binding on defendant.
    
      Appeal from a judgment entered in Madison county on 18th. February, 1890, upon the report of a referee in favor of the-plaintiff for $188.50, with interest from November 16, 1888, and. costs. The evidence is not returned.
    
      K P. Hashell, for app’lt; J. Munroe, for resp’t.
   Merwin, J

The facts as found by the referee are substantially as follows:

On the 6th February, 1888, the plaintiff made a contract in writing with Munroe Dodge, whereby Dodge agreed to sell and deliver to the plaintiff or his agent, at the purchaser’s option, on or before November 1st each year, at the depot at Oneida, his whole crop of hops of the growth of 1888, 1889 and 1890, five-acres, at sixteen cents per pound, seven pounds tare per bale. Dodge agreed “ to pick and cure the same in a clean and proper manner, and properly press and bale the same in good new sacking, in bales weighing from 180 to 200 pounds each. The plaintiff agreed “ to receive and pay for said hops at the time of delivery the price of sixteen'cents per pound, upon the conditions mentioned above, hops to be weighed at the time and place of delivery.”

On the 7th September, 1888, the defendant, by his agent, entered into a contract with plaintiff whereby he bought of plaintiff the Dodge contract, with others, so far as it applied to the crop of 1888, at the price of twenty-five cents per pound, subject to the terms contained therein. Thereafter the defendant notified Dodge to deliver his hops of 1888 on the 27th October, and Dodge did so at the place fixed by the contract and duly tendered them to the defendant. The defendant then and there, by his agent, inspected the hops and rejected them on the ground only that they were slack dried and unmerchantable for the reason that they were damp, and upon that ground he refused to pay the agreed price. There were twenty-one bales, weighing in the aggregate-3,923 pounds. Three of them, however, weighed less than 180 pounds each, the weight being 173, 170 and 179, respectively. The referee finds that the hops were not slack dried, but were good and merchantable hops. He also finds that the hops were rejected before they were weighed and that neither the defendant or his agent then knew the weight of the said bales and did not so know till long afterwards.

The hops remained at the place of delivery until they were resold by the plaintiff on the 12th November, 1888, at twenty cents-a pound, that being then the highest market price. After the re-fusal by defendant to take the hops, the plaintiff paid Dodge the amount going to him, and prior to the resale he notified the agent of the defendant of his intention to resell and hold the defendant liable for any deficiency. After the resale the plaintiff demanded of the defendant the deficiency, being five cents a pound, and, upon defendant’s refusal to pay, brought this action and recovered the deficiency named.

The defendant, upon this appeal, necessarily accepts the finding of the referee that the hops were, in fact, in good order and merchantable and that his objection, which he then took, was not good. He, however, claims that the plaintiff should not recover because the bales did not all weigh from 180 to 200 pounds each, three being less than 180.

He, however, absolutely refused to take and pay, giving only the reason that they were not in good order. The weighing, under the contract, was to be at the time and place of delivery and the refusal was before the hops were weighed. After the refusal there was no occasion to weigh the hops. The bales, upon an average, weighed over 180 pounds each, and the small deficiency in the three could have been remedied had the objection then been taken. The referee finds that the contract was substantially complied with.

Waiver of a condition precedent may be implied from the acts and conduct of a party. Benjamin on Sales, ed. of 1888, § 742. In Johnson v. Oppenheim, 55 N. Y., 291, it is said: “When a single objection to the performance is taken and the party is silent as to all others, they - are deemed to be waived. The rule rests upon the ground that the party, by his silence, has misled his adversary, and not having spoken when he ought, shall not be permitted to speak when he would.” But the defendant says he didn’t know as to the weight and, therefore, didn’t waive. He, however, ended the matter by his refusal before reaching the subject of the weight. He knew that by the contract the weighing was to be at the time and place of delivery. He, in effect, said, we will not go into that subject; it is a matter of no importance. See Smith v. Pettee, 70 N. Y., 17; Matter of New York, W. S. & B. R. Co., 35 Hun, 578. In Newbery v. Furnival, 56 N. Y., 638, cited by the defendant’s counsel, there was an inability on the part of plaintiff to perform. Here, if objection to the weight had been taken, it might have been remedied. In that respect it is more like the case of Smith v. Pettee, above cited.

We are of the opinion that the variance in the weight of bales is not available here as a defense.

It is further claimed by the defendant that he was not notified of the intention of plaintiff to sell the hops and hold him for the deficiency, and that therefore.the measure of damages adopted by the referee was not correct. Notice was given to Steinkampf, the agent of defendant, who made the contract with plaintiff and who inspected and rejected the hops. The referee finds, upon the request of the defendant, that the agency terminated on the 31st October, 1888. The notice was given after this date, but it does not appear that the plaintiff knew of the termination of the agency. We must assume that he did not. It is alleged in the complaint and admitted by the answer that Steinkampf “ was the regular, constituted and appointed agent of the defendant, duly authorized and empowered by the defendant to make bargains, contracts and agreements for and in behalf of said defendant in and about purchasing, contracting for, accepting, receiving and paying for hops purchased in behalf of said defendant and to do all acts and things necessary to carry into full force and effect such agency.” Steinkampf lived in Oneida, the defendant lived in New York. The defendant received the benefit of the highest market value at the time of the sale, and it does not appear that hops were any higher at the time of delivery. We a»e of the opinion that plaintiff was justified in giving notice to the agent, and defendant has no ground for complaint.

The defendant further claims a settlement, but that is not made to appear.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  