
    Meyer Lichtenstein, Appellant, v. Harry Rabolinsky, Respondent.
    
      Oral contract for the purchase of merchandise—an express warranty may be proved, in an action ■thereon by the purchaser, notwithstanding the fact that the sale was confirmed by Utters not mentioning it—remedy for a breach of warranty:
    
    Where, after the making of a verbal contract for the. sale of a carload of busheling scrap, the vendor on the same day writes a letter to the vendee stating: “We acknowledge sale to you this day of one car Busheling for Thirteen ($13.00) Dollars per. net ton and shall be glad to have your confirmation of your said . purchase. Delivery at once,” and upon the following day the vendee writes a letter to the vendor stating: “ This confirms purchase made Jan. 15th, 1900, by Mr. M. Lichtenstein of Mr. Harry Rabolinsky of one car load of Busheling Scrap at $13.00 net ton delivered on cars; Hoping this is satisfactory, w'e remain,” such letters do not constitute a complete written contract, fixing the rights of the parties and rendering incompetent evidence that the verbal contract of sale embraced an express warranty as to the quality of the scrap to be delivered.
    A party purchasing goods under an express warranty may, if the goods do not comply with the warranty, bring an action to recover damages for the breach-thereof, without offering-to return the goods.
    Appeal by the plaintiff, Meyer Lichtenstein, from a judgment of the Supreme Court in favor of the defendant,■ entered in the office of the clerk of the county of Erie on the 10th day of June, 1901, upon the dismissal of the complaint upon the merits by direction of the court after a trial at the Erie Trial Term.
    
      
      August Becker, for the appellant.
    
      Eugene Warner, for the respondent.
   Hiscock, J.

We think that the judgment appealed from should he reversed.

The action was brought to recover damages for an alleged breach of warranty by defendant upon the sale by him to plaintiff of a carload of “ busheling ” scrap. The evidence so far as admitted disclosed that the parties entered into a verbal contract by which the defendant was to sell and deliver to plaintiff on board the cars at Buffalo a carload of said scrap at a certain price. Part of the purchase price was paid before the delivery, and the balance upon the date of delivery. After defendant had caused the car to be loaded, and while it was somewhere in the yard at Buffalo, he brought and gave to plaintiff a bill of lading therefor. The plaintiff, without inspecting the scrap at all, caused the car to be reshipped and forwarded to some customer of his in another State, and he did not discover the alleged defects in quality until some time thereafter. After this alleged inferiority was discovered there was more or less negotiation between the parties with reference to procuring somebody who would accept the material in question and pay a satisfactory price therefor and some talk by plaintiff about returning the car. The joint efforts of the parties to effect a disposition of the material, however, failed, and defendant finally refused to have anything more to do with the matter.

After the parties had made their verbal contract two letters passed between them. The first was written by the defendant upon the day the contract was made and read as follows: “We acknowledge sale to you this day of one car Busheling for Thirteen ($13.00) Dollars per net ton and shall be glad to have your confirmation of your said purchase. Delivery at once.” The other letter was written the following day by the plaintiff and read as follows: “ This confirms purchase made Jan. 15th, 1900, by Mr. M. Lichtenstein of Mr. Harry Rabolinsky of one car load of Busheling Scrap at $13.00 net ton delivered on cars. Hoping this is satisfactory, we remain,” etc.

When upon the trial the plaintiff endeavored to prove as part of the oral contract between the parties an express warranty as to the quality of the scrap to be delivered, and which warranty it was claimed called for a very much better grade of material than Was delivered, the court refused to receive such evidence upon the ground that the letters above quoted constituted a written contract between the parties, and that the evidence of express warranty sought to be introduced would contradict or vary such written contract. Plaintiff was not allowed to introduce the evidence, and the dismissal of his complaint quite logically and naturally followed such ruling. We think that the learned trial justice commited error in making the ruling in question. We do not feel called upon to discuss the proposition urged upon our attention that evidence of such warranty would have been competent, even if the letters in question constituted a written contract between the parties as proving á collateral or supplemental agreement which would not contradict or vary the written contract.

- W e reach the conclusion ■ that the letters in question were not intended to and did not constitute a complete written contract fixing and governing the rights of the parties. We think'it appears upon their face that they were written rather for the purpose of merely evidencing and confirming the terms of a prior completed parol contract. It would be perfectly proper for parties who had made a parol contract to give some written memorandum which should be evidence that it had been made and of its terms, and which memorandum still should not take the place as a written contract of the one which had been made by parol. We think it was the intention of the parties thus to do. They naturally may have desired some acknowledgment in writing of the terms of the contract which they had made for the purchase and sale of this carload of scrap, and, therefore, we find the defendant by his letter1 acknowledging a sale to plaintiff, and plaintiff by his letter confirming a purchase made by him, and both letters speaking, of a contract and bargain which had already been made in the past. (Brigg v. Hilton, 99 N. Y. 517, 526.)

It is. urged by respondent that even if plaintiff had been allowed to prove an express warranty he- could not have recovered, because the defects in the material sold were patent and he had an opportunity for inspection before acceptance of the goods. Concededly plaintiff did not know of the alleged inferiority of the merchandise purchased until after delivery. Under all of the circumstances disclosed we do not feel inclined in advance of evidence showing just what the alleged warranty was to hold as matter of law that it did not survive acceptance. That question if it arises again will be more appropriately decided when the parties have introduced their evidence in full.

It is still further urged that after discovery of the defects plaintiff did not make an unconditional offer to return the property purchased. We think it might be held that the negotiations between the parties and defendant’s final refusal to have anything more to do with the matter operated as a waiver of such tender even if otherwise necessary. It is, however, too well settled to require discussion that a party purchasing goods under an express warranty, if the goods "are defective may rely upon his contract and not offer to return the articles purchased.

The judgment appealed from should be reversed and a new trial had, with costs to appellant to abide event.

Adams, P. J., McLennan, Spring and Williams, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event upon questions of law only, the facts having been examined and no error found therein.  