
    GEORGE CAHEN, Plaintiff and Respondent, v. JOHN R. PLATT, et al., Defendants and Appellants.
    I. SALE, CONTRACT OF. '
    1. Warranty, express.
    1. Breach, waiver of; estoppel.
    
    
      (a) If the vendee receive the articles, examines them, and retains them without raising any objection on the ground of nonconformity with the warranty, and without making any offer to return them, and without notifying the vendor to take them back, he can not raise the question of non-con^ fortuity.
    
    3. What does not constitute an express warranty.
    
    
      (a) “Approved standard quality,” these words do not raise an express warranty.
    1. It is another expression for a merchantable a/i'Ucle.
    
    («) Dorence v. Dow, 57 N. J. 16, and Day v. Pool, 53' if. J., distinguished.
    3. Damages of vendor on refusal by vendee to accept.
    1. The measure is the difference between the contract price and the market value at the place of delivery.
    1. Place of delivery, what is.
    
    
      (a) When the contract was made at a certain place, say the city of New York, to which the merchandise was to be shipped from another place, and delivery was to be * made by the delivery of the invoices and bills of lading at the city of Sew York, and payment was to be made at that city, the place of delivery is the city of New York.
    1. That the merchandise is, according to usual custom, shipped at the risk of the vendee, does not alter the rule.
    H. CURRENCY, IN WHAT, DAMAGES TO BE RECOVERED.
    1. Where by the contract Vets price is to be paid in the cwrrency of a foreign government, but damages for a breach are to be measured bv the difference between that price and the market value at a 
      
      flace loithin the United States, where there are two kinds of currency, one of gold and one of paper, the latter being the universally adopted medium, the party recovering the damages is entitled to have them estimated on the basis of the paper currency, although its value at that place is callable of being estimated in the foreign currency.
    Before Speir and Sanford, JJ.
    
      Decided March 20, 1876.
    Appeal by the defendants from a judgment entered in favor of plaintiff for nine thousand three hundred and thirty-nine dollars and twenty-two cents, upon the verdict of a jury.
    The complaint alleges that in September, 1872, the defendants agreed to buy from the plaintiff eight thousand single and two thousand double boxes of glass, to be shipped from a Belgium factory, in October, November, and December, 1872, and, January, 1873, at a price fixed at a specified discount from a certain- list of July 16, 1872, payable in the city of New York, in gold, on delivery here of invoice and bills of lading, the glass to be at the risk of the defendants as soon as shipped.
    The answer admits all the allegations in the complaint except the amount of damages. It alleges, however, that the glass which was delivered was not delivered within the time called for by the contract, and was of a quality inferior to that agreed for, as iiqí being of “approved standard quality,’ in accordance with the terms of the contract.
    The learned judge below charged the jury, among •other things, as follows: “ You have nothing to do with the question which has been raised here as to whether the glass corresponded with the grade called .for by the original contract between the parties, because no offer at any time has been made to return it, and no request was made to the plaintiff to take it back,” to which defendants’ counsel excepted.
    The judge further charged: “The plaintiff, Mr. Cahen, testifies that the contract price for the glass was one hundred and one thousand four hundred and ten francs and ninty-six cents., and then, in the fall of 1873, from the time that Mr. Boyd returned from Europe, and fold him that the glass could be bought at a less price in Europe, from that time up to January 1, the glass was worth sixty-six thousand one hundred and eighty-two francs and seventy-seven cents, in this market. How, that is what he testifies, and that the difference between the price at that time and the price called for upon the contract was thirty-five thousand two hu'ndred and twenty-eight francs and nineteen cents., which last sum, in currency amounts to about eight thousand dollars. That is what the plaintiff testifies to as the difference between the market value at the time of the refusal to receive the glass, and the contract price.
    There has been testimony, ■ in respect to which I shall-not detain you, as to the way in which prices are estimated on- glass, which is by a deduction from a fixed tariff. It is conceded that the six per cent, discount is an allowance for the difference between Belgium and English measurement, that the three per cent, discount is an absolute discount nominally for cash, and the fluctuating discount is the basis upon which the valuation is made. This valuation, testified to by Mr. Cahen, is made upon a basis of a fluctuating discount of fifty per cent. The defendants introduce a statement received from the plaintiff at some prior period, or about this period, made up by him upon a basis of forty-five per cent, fluctuating discount, which makes a difference of twenty-eight thousand six hundred and nine francs and ninety-two cents, calling the contract price the same,one hundred and one thousand four hundred and ten francs and seventy-six cents, and the ?alue of the goods at that time seventy-two thousand eight hundred and one francs and four cents.,; this, in American money, as testified to by Mr. Hughes, to be five thousand seven hundred and twenty-two dollars in gold. Then there is another statement of value presented for your consideration. . . If the refusal was prior to the period testified to by the plaintiff, and the market price was not as low-as the defendant fixed it, then the defendants are entitled to the difference, whatever you may make that to be. But it is for you to consider the testimony as to the value, and to determine what was the market price at the time of the refusal to receive the glass ; and that amount the plaintiff" is entitled to recover, with interest from January 1, 1874.”
    Defendants’ counsel excepted.
    
      Chambers, Pomeroy, and Boughton, attorneys, and William P. Chambers, of counsel for appellant, on the questions discussed by the court, urged:
    I. The court charged the jury that the defendants not having offered to return the glass, nor having requested the plaintiff to take it back, the jury had nothing to do with the question as to the quality of the glass delivered ; that plaintiff was entitled to recover, and the only question for the jury was the amount of damages. (To this defendants’ counsel excepted.) It is submitted that the foregoing exception was well taken. The court evidently regarded the contract between the parties as simply an executory contract. It is submitted that it was more: it was a sale with express warranty as to quality. The language of the contmct is, “all to be of approved standard qualities” (Day v. Pool, 53 N. Y. 416 ; Dounoe v. Dow, 57 N. Y. 16).
    II. The defendants’ counsel also requested "the court to charge the jury “ that, if the’ jury shall find that the glass delivered was, in respect to quality, conform able to the contract, the plaintiff is entitled to recover, by way of damages, the difference between the price agreed to be paid by the contract and the market value at the time and place when and where the property, by the contract, was to have been delivered;” and further, 6 £ that the place of delivery was at the pointof shipment.” The judge, on the contrary, charged that 6 ‘ the market price to be considered was that which was ruling at the city of NewYork at the time of refusal, and also charged, “ the invoices were to be sent forward to the defendants here, and the goods were to be delivered here, and the payments to be made by bills drawn as specified in the contract, and paid in gold.” Slow, by the terms of the contract the glass was “to be shipped from the manufactory of Messrs, de Looper, Haidin & Go., in Gosselies, &c„,” and the same was to be at defendants’ “risk and peril as soon as shipped.” The place of delivery, therefore, was at the place of shipment, and it was error for the court to refuse so to charge upon defendants’ request, and to charge that ‘ ‘ the goods were to be delivered here.” The invoices and bills of lading were to be delivered here, but not the glass. The rule of law is, that the market value at the place of delivery, in cases of this kind, must be shown. “Where a place is fixed on by the parties as that for delivery, it seems to be well settled that the inquiry as to prices is limited peremptorily to that particular “place” (Sedg. on Dam. (4th ed.) 317; Story on Sales (4th ed.) sec. 436, and cases cited in foot-note ; Gregory v. McDowell, 8 Wend. 435; Wemple v. Stewart, 22 Barb. 154; Lattin v. Davis, Lal. sup. to Hill & D. 12; Deifendorff v. Gage, 7 Barb. 21; Dustan v. McAndrew, 44 N. Y. 72 ; McNaughter v. Cassidy, 4 McLean, 530.)
    
      Man & Parsons, attorneys, and John E. Parsons, 
      of counsel for respondent, urged, among other things :
    —I. As no objection is pretended to have been made to the glass until months after it was received, and as there never was any offer to return, of notice to take back, the defendants are precluded from alleging that the portion received was inferior (Reed v. Randall, 29 N. Y. 358 ; Pike v. Nash, 1 Keyes, 335 ; Hargous v. Stone, 5 N. Y. 73; Sprague v. Blake, 20 Wend. 61).
    = II.—The glass, by the terms of the contract, was to be shipped to New York. The contract was made here. The delivery was to be made by the delivery of the invoices and bills of lading, and that was to be done here. The payment was to be made here. In such a case the rule of damage is as charged by the judge: “the difference between the contract price and the market value in New York at the time of the breach, for the same description of glass, upon the same terms for delivery and otherwise, as provided in the contract” (Dana v. Fiedler, 12 N. Y. 40 ; Sedgwick on Damages, 316 ; citing Converse v. Prettyman, 2 Minn. 229; Dey v. Dox, 9 Wend. 129; Davis v. Shield, 24 Id. 322; Chitty on Contracts (11th ed.), 621).
    III.—The price was fixed in francs. The defendants insisted that the jury should render a currency verdict. It was proper that they should take the actual equivalent in currency (Bank of Commonwealth v. Van Veck, 49 Barb. 508; Rodes v. Bronson, 34 N. Y. 649, 653, 656 ; Simpkins v. Low, 54 N. Y. 173, 183-4; The Vaugban and Telegraph, 14 Wall. (U. S.) 258, 268).
   By the Court.—Speir, J.

The plaintiff delivered to the defendants under the contract all the glass except four thousand nine hundred and twenty-four boxes, and those, which were delivered, arrived on March 10 and 21, May 12, and June 23, in 1873. These were paid for. and examined in a week or two after arrival. The plaintiff’s claim is for the difference between the contract price and the market price of the four thousand nine hundred and twenty-four undelivered boxes of glass. On April 15, 1873, the defendants wrote to the plaintiff to write by the steamer which was to sail the next day, to stop all shipments for them until further notice.

The defense is, that the shipments of the glass delivered by the plaintiff differed in quality from the glass called for by the contract; that the glass called for was known as “approved standard quality,” whereas the glass delivered was a quality below that grade, and, consequently, the defendants were not bound to receive it.

It is to be observed that although the defendants’ answer states that they notified the plaintiff that the glass already delivered was inferior, as claimed by. them, there is no averment that defendants had either refused to receive, or offered to return any part of the glass delivered, or that they were ignorant of its quality at the time of its-receipt.

On the trial, the defendants proved that the glass was examined as it was received, and its quality then discovered, that no objection was then made to receive it, and that no offer had ever been made to return any portion of it to the plaintiff, and that he had never been notified to take back any part. When the defendants wrote to the plaintiff to delay shipments, two of the four shipments had been received and examined, and the request to delay was not put upon the ground of the inferior quality of the glass.

It is not easy to resist the conclusion, from an examination of the evidence, and especially that of the defendant Boyd, that at this time, there being a falling market, that the defendants then had a sufficient supply of glass at the price agreed upon between them. The market continued to fall off, and in the summer of 1873 the defendants claim they notified the plaintiff of their objection to the quality of the glass, and the plaintiff replied it was impossible there should be any difference. Defendants’ 'witness concedes that the plaintiff had never been shown any of the glass.

From the foregoing facts it is plain, 1 think, that the learned judge correctly charged the jury, “that they had nothing to do with the question whether the glass corresponded with the grade called for by the contract between the parties, and that the only question for the jury to determine was the amount of damages.”

The point taken by the defendants’ counsel is, that this was not only an executory contract, but it. was a sale with express warranty as to quality, and the two cases relied upon to sustain his position are Day v. Pool (52 N. Y. 416), and Dounce v. Dow (57 Id. 16). I do not think a warranty can be predicated upon the contract proven in this case. The goods were to be of “approved standard qualities.” When the defendants received the glass (and it was all received before any objection was made to its quality), the defendants themselves, in fact, approved the quality by receiving, examining, and retaining it without an offer to return any part of it, and without notifying the plaintiff to take it back. They have assented to the quality of the glass, and can not now revive that question. The retention of the property by the purchaser is an admission on his part that the contract has been performed. Besides, “approved standard quality’’“is only another expression for a merchantable article. The distinction between this and the cases referred to are very plain. In Dounce v. Dow (57 N. Y. 16), the court say, the contract was not merely for the delivery of iron classified and known as “ XX pipe iron,” and the iron of that designation and name, but that it should be of a quality suitable and proper for use in said defendants’ manufacturing business.” Here was an express agreement or warranty that it should be of that designated quality. The defendants, immediately after ascertaining the quality of the iron when delivered, notified the plaintiff of the deficiency in the quality and character of the iron, and requested him to take away the balance which had not been melted and mixed with other iron after the test. The quality of the iron had to be submitted to a test in order to determine its tenacity and toughness, which was particularly valuable in the defendant’s manufacturing business. It was this tenacity, toughness^ and quality of the iron which the plaintiff had expressly warranted and agreed to deliver to the defendants. An attentive examination of the case of Day v. Pool (52 N. Y. 416) will discover, I think, an equally plain distinction. The* cases which bear directly on the question before us are: Reed v. Randall, 29 N. Y. 358; Sprague v. Blake, 20 Wend. 61 ; Hamilton v. Ganyard, 34 Barb. 204 ; Shields v. Pettee, 2 Sandf. S. C. R. 262.

I can not see that the court has committed any error in his charge as to the rule of damages. The contract was made here, and by its terms the glass was to be shipped here. Delivery was to be made by the delivery of the invoices and bills of lading, and that was done here. Payment was to be made in Hew York. The defendants’ witness, Dunham, proved that the usual course of business for a sale of glass was that adopted in this case. The glass is shipped at the risk of the vendee. The court properly left it to the jury to fix the time of the defendants’ refusal to receive the goods, and to determine the market price at the time of refusal. The price was fixed in francs. It was proper that they should take the actual equivalent in currency (The Vaughan and Telegraph, 14 Wall. (U. S.) 268 ; Simpkins v. Low, 54 N. Y. 179, 188.

The judgment should be affirmed with costs.

Sanford, J., concurred.  