
    Robert J. Stuart, Respondent, v. The Manhattan Bath Tub Co., Appellant.
    (Supreme Court, Appellate Term,
    February, 1901.)
    Sale of goods to be manufactured — Estoppel of vendee by acceptance — Variance between pleading and proof.
    Where the vendee, after some dispute and correspondence as to the price of goods to be manufactured, accepts some, orders more and retains all, he is estopped from subsequently claiming that the price is excessive.
    In an action brought to recover the value of the goods, where plaintiff proves the contract price, the court may amend the pleadings to conform to the proof or direct that the variance be disregarded.
    Appeal from a judgment of the Municipal Court of the city of New York, ninth district, borough of Manhattan, in favor of the plaintiff.
    Otto H. Droege, for appellant. •
    Henry L. Maxson, for respondent.
   Andrews, P. J.

This is an appeal by the defendant from a judgment entered in the Municipal Court, ninth district, in favor of the plaintiff, upon the verdict of a jury, rendered by direction of the court.

For about two years, plaintiff had sold defendant bath tub legs. In September, 1899, the defendant suggested that plaintiff make a new style of such legs. In February, 19CO, plaintiff sent one of the new style of legs to the defendant for its approval. Along with it came a memorandum billing the new legs at fifty-seven cents, being for twenty-one pounds at two and three-quarter cents a pound. In March, the plaintiff and the president of the defend-' ant had á conversation as to the new style of leg, and on March twenty-third, the defendant ordered 1,000 sets of such new style, to be shipped in installments, commencing April fifteenth. On April sixteenth, the plaintiff sent the first shipment of seventy-six sets of legs, paying transportation, and with it was an invoice billing the legs to the defendant, at eighty-five cents per set. On April seventeenth, the defendant returned the invoice, stating that it would do nothing with the legs until it heard from plaintiff, as said legs were not charged at two and three-quarter cents per pound, and that the total charge should be only forty-three dollars and eighty-nine cents for seventy-six sets. On April eighteenth, plaintiff wrote to defendant explaining the increase in cost of the new legs, and that eighty-five cents per set was the lowest figure, and offered to send his truckman for the seventy-six sets if the defendant wished to return them; and requested defendant to let him know whether to send for the legs or not. On April twenty-first, defendant wrote to the plaintiff complaining of the price, and two days later plaintiff wrote to the defendant, saying that the new legs were costing less than the old style, and that they saved much labor and expense to the defendant in obviating the necessity for fitting and drilling, and stating that he considered the defendant’s order of March twenty-third for the 1,000 legs canceled. On April twenty-fourth, the defendant again wrote to the plaintiff complaining of the price, but ordered 100 sets more, and retaining the first shipment of April sixteenth. On April twenty-fifth, plaintiff again wrote to the defendant, stating his desire to have matters so plain as to avoid any misunderstanding in the future, calling the attention of the defendant to its failure to make any disposition of the seventy-six sets, offering to take them back, and stating further, “ The price is eighty-five cents per set F. O. B. N. Y. you will please let me know what you wish me to do and oblige.” On June second, the defendant ordered more legs, and fifty sets were shipped on June fourth, together with 198 pounds of extra legs, making in all 326 sets of legs and 198 pounds of extra legs, which, at eighty-five cents per set, or four cents per pound, amounted to $285.02. Hone of the sets of legs or extra legs were returned, but were all kept and used by the defendant.

Upon these facts, and others which appear in the return, I am of the opinion that plaintiff never contracted to furnish the defendant with the new style of legs at two and three-quarter cents per pound, or fifty-seven cents per set.

When the first seventy-six sets were sent to the defendant, it was informed that the price was eighty-five cents per set, and that if it did not wish to receive them at that price it should return them; and the plaintiff also notified the defendant several times afterwards that the price would be eighty-five cents. Under these circumstances, the defendant, by keeping the seventy-six sets and ordering others, became liable to pay for the whole number ordered and received, "at the price of eighty-five cents per set.

This was not, strictly speaking, a sale by sample, but an executory contract for the sale of goods to be manufactured, and the defendant, by accepting the goods, without offering to return the same, is estopped from claiming that there were any defects or imperfections discoverable upon inspection. Smith v. Coe, N. Y. L. J., Dec. 27, 1900. The defendant’s contention was, therefore, properly dismissed.

The action was brought to recover the value of the goods in question, but, the plaintiff having proved that the contract price was eighty-five cents, it was proper and lawful for the court to direct that the pleadings be amended to conform to the proof, or that the variance between the pleadings and the proof should be disregarded; besides, plaintiff proved the value, and the evidence of value given in behalf of the defendant was not of a character to require the submission of the question of value to the jury.

Judgment should be affirmed, with costs.

O’Gorman and Blanchard, JJ., concur.

Judgment affirmed, with costs.  