
    Roscoe G. Chase et al., App’lts, v. Charles M. Evarts, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    1. Sale—Wabbanty—Evidence.
    In an action for the price of goods sold where the defense is a breach of warranty, evidence of the warranty is admissible even though the contract was in writing.
    3. Same—Contbact.
    Where the alleged contract was in the form of an order for the goods, with a form of acceptance to be signed by the agent, and the instrument remains in the hands of the agent, in the absence of proof that the agent signed the same there is no written contract between the parties.
    3. Same—Acceptance.
    Where there is an express warranty on the sale of goods, an acceptance of the goods does not estop the vendee from claiming damages for a breach. In such case he is not bound to return- or oiler to return the goods.
    4. Same—Damages.
    Where the goods turn out to be wholly worthless, the measure of damage is the full purchase price.
    
      Appeal from judgment in favor of defendant, entered upon the decision of the court on a trial without a jury.
    
      Ira Leo Bamberger, for app’lts; Edward Cromwell, for resp’t.
   Cullen, J.

—This is an appeal from a judgment for the defendant on the decision of the court before which the case was tried without a jury. The complaint was for trees, shrubs and nursery stock sold and delivered. The defense was breach of warranty and that the articles were worthless.

It is claimed that the contract of sale was in writing, and that the court, erred in admitting paroi evidence of a warranty by the plaintiffs. The defendant denied signing any contract and the trial court found this question in his favor. This finding we are asked to reverse as against the weight of evidence. Even if the finding was erroneous, this would not make the evidence improper. The defendant was entitled to present any evidence which would be competent on the most favorable findings in his favor of any facts in dispute. We think the court did not err in its disposition of this question of fact. The contract alleged to have been signed by the defendant was in form an order to the plaintiffs to deliver certain articles. At the end of the order is a printed form of acceptance to be signed by plaintiff’s agent. If the defendant did actually sign , the order it would not constitute a contract 'till accepted in writing by the plaintiffs and the defendant notified of the fact. The instrument remained in the hands of thé agent. There is no evidence that, he executed the acceptance at the time the order was given, or that any notice was given to the defendant of a subsequent acceptance. There was, therefore, no written contract between the parties.

It is next claimed that defendant was estopped by his acceptance of the goods. The court found an expressed warranty. In such case the vendee is not bound to return or to offer to return the property. He may retain the same, stand on bis warranty and recover damages for the breach. Day v. Pool, 52 N. Y., 416.

The evidence established a breach of the warranty and that the property was wholly worthless. The defendant’s damages were, therefore, the full purchase price of the property.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  