
    BIRCH v. KAVANAUGH KNITTING CO.
    (Supreme Court, Appellate Division, Third Department.
    November 16, 1898.)
    1. Contract—Construction.
    Where the contract for the purchase of machinery is contained in the letters which passed between the parties thereto, its construction is for the court.
    2. Sale—Warranty.
    The fact that a contract for the purchase of machinery, accompanied with a warranty as to what the machinery would do, provided that the buyer might at the end of 30 days return the machinery, if it proved not equal to the warranty, does not bar an action for damages suffered by a breach of the warranty, inasmuch as the privilege to return the machinery is but a cumulative remedy, which may be waived.
    8. Same—Acceptance.
    Before the vendee purchased a machine, he was to have an opportunity to test it for 30 days. If, after such test, he was satisfied that the machine would operate as the seller had guarantied, the sale would be complete; but, if not so satisfied, the machine was to be returned to the seller on board cars where vendee resided, At the end of the 30 days, vendee, instead of notifying the seller that the machine was not satisfactory, and returning it on board cars, ordered two more machines similar to the one tested. Held, that there was an acceptance of the machine by vendee at the end of the 30 days.
    
      4. Same—Construction oe Contract.
    The sale so made was one purely on test, and not on a warranty.
    G. Same—Return oe Goods.
    Where a contract of sale of a machine with a warranty contained a specific provision that the machine should be returned, if it proved on a test of 30 days to be not as represented, vendee cannot affirm the contract to the extent of the sale and warranty, and ignore the portion which obligates the return of the machinery after the test, if unsatisfactory.
    Appeal from trial term, Saratoga county.
    Action by Albert Birch against the Kavanaugh Knitting Company. From a judgment in favor of plaintiff, defendant
    appeals-
    Affirmed.
    
      Argued before PARKER, P. J., and LARDON, HERRICK, PUT? RAM, and MERWIK, JJ.
    Edgar T. Brackett, for appellant.
    S. W. Russell, Jr. (T. F. Hamilton, of counsel), for respondent.
   PARKER, P. J.

The contract under which the defendant received the machines for the purchase price of which this action is brought is contained in the letters which passed between it and the plaintiff; and no question as to what that contract was, arose for the jury to determine. It was for the court to construe those letters, and determine from them what the rights and obligations of the respective parties are. If the contract so made was an absolute sale, accompanied with a warranty as to what the machines would do, then the defendant had the right to retain them, and to set off against the purchase price its damages arising from a breach of that warranty. And this would be so, even if the contract had provided that the defendant might return the machines, and have the purchase price refunded, if they proved not equal to the warranty. Such a provision would be but a cumulative remedy secured by the contract to the defendant. If the defendant failed to exercise that privilege within the time limited, it would operate as a waiver of the right to return, but would be no bar to its action for the damages suffered by the breach. 28 Am. & Eng. Enc. Law, p. 827. But it appears from the correspondence in this case that no contract of sale, with warranty, was ever consummated between the parties. It is plain that the defendant, notwithstanding the guaranty expressed by the plaintiff’s agent, was not willing to make the purchase until it had had a practical test of the working of the machine. It was not willing to accept the offer made in plaintiff’s letter of June 14th, for the reason that under it the blower and heater, which was to be furnished by a third party, must be purchased by the defendant absolutely, and even though the drying machine to be furnished by the plaintiff did not work satisfactorily. When, however, the plaintiff arranged so that both machines should be purchased upon the test provided for in that letter, the machine was received by the defendant, and the test made in its own establishment. By reference to plaintiff’s letter of June 14th, to defendant’s answer of June 15th, and its subsequent correspondence relative to seeing the machine at work, it is apparent that their contract was substantially to this effect: Before the defendant purchased the machine, it was to have the opportunity of testing it for 30 days. If, after such a test, it was satisfied that it would operate as plaintiff represented it would, then the purchase might be completed, and the purchase price of $300 would at once become due. If, however, the machine, upon s'uch test, did not perform all that it was guarantied to perform, then the purchase was not to be completed, but the machine must be returned to the plaintiff on board cars at Troy, R. T. During all the time of the test, and until defendant elected to make the purchase, the machine belonged to the plaintiff. The title was in him,—the possession only in defendant for the purpose of being tested. At the expiration of the 30 days the defendant, instead of notifying plaintiff that the machine was not satisfactory, and returning it on board cars at Troy, as it had contracted to do in the event that the test was not up to the recommendation, ordered two more machines, thé piirchásénf which was evidently made upon the result of the test. This amounted to an acceptance of the machine, and then for the first time the" purchase was complete. But surely a purchase then completed was not made relying upon the plaintiff’s warranty as to what the machine would do. Clearly, the plaintiff' had no intention of giving a warranty that should accompany a sale so made. He never undertook that, after the defendant had demonstrated the machine’s inability to perform the work guarantied, it might nevertheless retain the same, and hold him in damages because it would not work. The sale was to be made only in the event that the defendant, after trial, was satisfied with the machine. TJntil satisfied by actual test, no sale was to be made. When so satisfied by actual test, no warranty was either relied upon or contemplated by either party. The sale so made was one purely upon test, and. not upon a warranty. Although the plaintiff did, in exact terms, guaranty that the machine would do certain things which we must assume it would not'do, yet, under the final contract by which the sale was made, a practical test was substituted for such warranty; and each party evidently understood that defendant’s reliance was to be upon the test, and not upon the warranty. Under such circumstances, it cannot be said that there was any contract of warranty accompanying the sale, and hence no cause of action for a breach thereof has accrued to the defendant.

But, even if the contract could be construed as a sale with a warranty, it certainly contains the further specific provision that 'the machine should be returned if the property proved, upon a test of £0 days, to be not as represented. Here was something more than . a mere privilege to the defendant that it might return the property1. It was a positive agreement on its part that it would return it. ; Defendant now seeks to affirm that contract, to the extent of the saié and the warranty, but to utterly ignore that part of it which created the obligation on its part to return the property. This it cannot do. The general rule is stated in 28 Am. & Eng. Enc. Law, p. 830, as follows:

“The terms of the express contract of sale are to govern In all cases, and the vendee’s right of action for a breach of the warranty does not exist until he has discharged the conditions precedent imposed by such contract.”

In my judgment, the ruling of the trial court was correct, and the judgment there entered should be affirmed.

Judgment affirmed, with costs. All concur.  