
    ELIAS BACH, et al., Respondents, v. DAVID LEVY, et al., Appellants.
    
      Decided April 7, 1884.
    
      Written warranty of quality on sale of personal property—modification of by oral testimony—name known to trade denoting quality—objection to recovery in action for breach of warranty that note given in payment of goods had not matured.—Sale for account of warrantor in case of breach, requisites of—measure of damages.
    
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal from a judgment founded on the verdict of a jury against the defendants for $3,626.06 damages for breach by them of warranty in the sale to the plaintiffs, of one hundred and seventy-five cases of tobacco, called “Connecticut seconds,” at the rate of ten and one half cents per pound.
    The court at General Term said :—“ The following is a copy of the contract. ‘ New York, April 19, 1883. Sold to Messers. Elias Bach St Son, for acc. of Messrs. D. Levy & Son, (175) one hundred and seventy-five cases Conn, seconds L. Tobacco, crop 1882, by packer’s samples. Mess. D. Levy & Son guarantee the tobacco to be like samples, and sound until after stripped sampling, July 1, 1883. Price lOJc. Marked weight. Insurance guaranteed and storage free. Terms, 5 months note. S. Wollenberg.’ “A few days after the above mentioned date the plaintiffs received from the defendants the bill for the tobacco, of which the following is a copy : ‘ 169 Water Street, New York, April 19, 1883. Messers E. Bach & Son: Bought of D. Levy & Son. Terms, net cash, unless settled by note. Claims for deduction or deficiency to be within five days after receipt of goods. (Here follow the numbers of each case, the gross weight and tare.) 68,233—10|— $6,993.88. Settled by note. (Signed) D. Lew & Son.’
    “ The price of the whole of this tobacco, was $6,903.33, and for this amount plaintiffs gave to defendants their promissory note payable in five months after date, in payment of said tobacco. It appears in evidence that the term ‘Connecticut seconds’ is understood in the trade to mean tobacco grown in the state of Connecticut, and not elsewhere, and the market value of that tobacco is general^ higher than that of tobacco of' the same grade, grown in Massachusetts. The tobacco purchased by the plaintiffs of the defendants was not delivered until about the first day of July, 1883. It was then examined by the plaintiffs, and found to be, not ‘ Connecticut,’ but ‘Massachusetts’ tobacco and in great part not up to the packer’s samples. One of the witnesses testified that ninety-six cases were inferior. The defendant Levy admitted that thirty-eight cases differed from the samples. The plaintiffs offered to return the tobacco to the defendants on the return by them of plaintiff’s note, given in settlement; and this proposition not being accepted, the plaintiffs gave the defendants due written notice that they would sell the tobacco by public auction, and hold defendants responsible for an A’dam age that might ensue. On July 10, 1883, the tobacco was sold at public auction, realizing the net sum of $5,439.22, being at the rate of 8-| cents per pound.
    “The defendants did not call any witnesses in their behalf at the trial, but moved the court to direct a verdict for the defendants, which motion was denied. They also made various objections in the course of the trial to the admission and rejection of testimony, raising thereby questions of law which are substantially as follows :
    “First. That the cause of action was not complete at the time of bringing this action, because the note given to the defendants by the plaintiffs An settlement of the purchase of the tobacco had not then matured, and had not then been paid.
    “In my opinion this objection is not well taken. 1 The plaintiffs gave their note to the defendants payable in five months from the date of the sale, that being the form of payment agreed upon as payment, as was stated in the bill rendered, by the words settled by note.’ This note matured before the trial of the action, which took place on November 22, 1883. It may be reasonably presumed to have been paid before that time, and even if it were not paid, the liability of the plaintiffs on the note continued, and could be enforced by the holder of the note.
    “The second objection of the defendants, against plaintiffs’ recovery, is that there was no express warranty that the tobacco should be ‘Connecticut seconds,’ but only that it should be equal to the packer’s samples, and' that the warranty being in writing, no other or broader warrant}7 could be implied or proved by parol.
    “The learned counsel for the defendants elicited from Bach, one of the plaintiffs, under cross-examination at the trial, the following testimony: ‘At the time the contract was made, Mr. Levy (one of the defendants) said to me, I guarantee these one hundred and seventy-five cases will come up to the packer’s samples, and I will guarantee they are- ‘ Connecticut tobacco ;’ and upon that condition I bought the tobacco ; and I told defendant that he would have to reduce it to writing.’ This evidence was received without objection, and was admissible for the purpose of showing, that the written contract was not a sufficient or a complete record of all the actual antecedent parol agreement between the parties {Benjamin on Sales, vol. 1, §§ 208, 209, 210 ; Chapin v. Hobson, 78 JY. Y. 74 ; Wilson v. Been, 74 Id. 531).
    “It has been also held that where, as in the case at bar, the thing sold is known to the trade by a particular name, and is described by that name in the contract of sale, it is a condition of the sale that the thing delivered should be the thing so described. This condition applies to the subject of the sale, and if the thing thus described and specified be not delivered, the contract fails of performance, irrespective of any express warranty, because the thing is not supplied to which the terms of the contract can attach {Benjamin on Sales, vol. 2, §§ 918, 919 ; Wolcott v. Mount, 36 JY. I. L. 262, 265). Thus in the case at bar, the thing which was the subject of the contract, was what was known as ‘Connecticut seconds,’ To them alone, the written contract and. warranty applied, and delivery to the plaintiffs of any other kind of tobacco, was a failure to carry out the essential and necessary conditions of the contract.
    “For these reasons, I think that the testimony as to the fact that the tobacco delivered was not was was known in the trade as ‘Connecticut seconds’ and as to the market value of ‘Connecticut seconds’ as compared with ‘Massachusetts tobacco,’ was properly admitted (Van Wyck v. Allen, 69 W. 7. 61 ; White ■». Miller, 71 Id. 118).
    “ I see no objection to the sale of the tobacco by auction in a lump, and for cash. The purchase was of 176 cases, was one entire purchase for one sum received in settlement for the whole purchase. When the bulk, or a large proportion of the articles, included in one purchase fails to come up to the warranty, or to fulfill the conditions of the sale, the contract may be treated as violated as to all, and a sale by public auction and for cash seems to have been in this case, a fair means of ascertaining the market value at the time of the sale. It is in evidence that the auction sale in this instance was largely advertised, well attended, and that the tobacco sold, brought its market value. This sale was a proper mode of ascertaining the value (Muller v. Eno, 14 W. 7. 597 ; Pollen v. Le Roy, 30 Id. 549 ; Parks v. Morris, &c. Co., 54 Id. 586).
    “Defendant’s counsel further objects that the proper, measure of damages was not applied in this case. The true measure of damages was the difference between what would have been the value of the tobacco at the time of delivery, if it had corresponded with sample and been ‘ Connecticut seconds,’ which was the article which the parties agreed that it should be, and the value of the.article as it actually was at the time of the auction sale which took place almost immediately after the delivery. The evidence showed that the true value of such sound tobacco at the time of delivery, was twelve cents per pound, making the amount $8,187.96. The sale of the tobacco, as it actually was, at auction, realized at the rate of 8H cents per pound, making the amount $5,439.22,
    
      The difference between these sums, is $2,748.74, and the verdict was for $2,626.03, somewhat less than the amount of damages that the plaintiffs would have legally been entitled to.
    
      Kauffman & Sanders, for appellants.
    
      Townsend, Dyett & Einstein, for respondents.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., concurred in result.

Judgment appealed from, affirmed, with costs.  