
    (67 Hun, 551.)
    EATON v. WALDRON et al.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    1. Sale—Inspection by Purchaser—Caveat Emptor.
    Plaintiff, who was neither the manufacturer nor producer of certain lumber, sold the same to defendant, who examined it in the piles before the sale by removing and personally inspecting a portion, and the whole bulk was at the same time open to his examination, Held, in the absence of any fraud or concealment on the part of plaintiff, that the sale was made on inspection of the lumber in bulk, and not by sample, and the rule of caveat emptor op-. plied.
    2. Same—Rescission.
    Where defendant took possession of the lumber and removed it to his mill, and changed its- character, and did not return it, he was not in a position to rescind in toto, even if there was a breach of warranty, and the most that he could do in such case was to abate from plaintiff’s claim his damages sustained by such breach of warranty.
    Appeal from judgment on report of referee.
    Action by Walter J. Eaton against Ephraim D. Waldron and George E. Waldron. From a judgment in favor of plaintiff for the sum of $533.68, damages and costs, defendants appeal.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Lansing & Cantwell, (William P. Cantwell, Jr., of counsel,) for appellants.
    Wadhams & Lawyer, (George Lawyer, of counsel,) for respondent.
   MAYHAM, P. J.

The complaint in this action alleges that the defendants purchased of one Hill a quantity of lumber at the agreed price of $339.55, and at the time of the sale and delivery of the same Hill agreed to deduct from the price the sum of $5 for the transportation of the lumber. The complaint also alleges a transfer of the claim from Hill to the plaintiff before the commencement of this action. The answer puts in issue the plaintiff’s title to the claim, and, among other things, charges that, at the time of negotiating the sale of the lumber by Hill to the defendants, he falsely and fraudulently warranted and recommended that the timber was of a particular quality, and alleges that it was not of the quality recommended. The proof discloses that at the time of negotiating the sale of this lumber one of the defendants examined the lumber in the pile, and took off a number of pieces of the lumber, and there is a conflict in the evidence as to whether the lumber examined by the defendants was a fair sample of the average of the entire pile or quantity claimed by the plaintiff to have been sold to the defendants. The lumber was carried to the defendants’ mill, or the mill designated by them, and was there, by their direction, in part planed, when the defendants determined to rescind the contract, and caused the lumber to be piled, and gave notice to the vendor, Hill, that the same was subject to his order.

There was no evidence in the case that Hill committed any fraud upon the defendants, and the referee refused to find that he at the time of the sale recommended the lumber not examined to correspond with that examined by the defendants. The defendants, having taken possession of this lumber, and changed its character, not returning the same to the plaintiff or his assignor, were not, under the circumstances of this case, in a condition to rescind the contract in toto. The most that they could do, under the circumstances, if that was a breach of warranty as to the quality of the lumber, was to set up such breach, and abate from the plaintiff’s claim the amount of damage sustained by reason of the breach of warranty.

But we think the circumstances of this case establish that this was not a sale by sample. One of the defendants’ firm examined the lumber in the piles before the sale, removed and personally inspected a portion of the same, and the whole bulk of the lumber was open to his examinatian and inspection, if he had been disposed to make such examination; and in the absence of any proof of fraud or concealment on the part of the vendor, the purchaser must be deemed to have made the purchase upon his personal inspection of the commodity in bulk, and not by sample. To constitute a sale by sample there must be an agreement to sell by sample, or such an understanding that the sale is by sample as to excuse the purchaser from examining the bulle of the commodity. Beirne v. Dord, 5 N. Y. 95; Ames v. Jones, 77 N. Y. 614. Nor do we think that the agreement between the parties was an express warranty as to the quality of this lumber; and the rule seems well settled that a sale of personal property, in the absence of an express warranty or fraud, when the buyer has no opportunity to inspect the commodity, and the vendor is neither the manufacturer nor grower of the article he sells, the maxim caveat emptor applies. The rights and liabilities of vendor and vendee, when there is no express warranty ór fraud, and when the vendee has an opportunity to examine the article sold, and does examine a portion of -the same, are fully discussed in the United States supreme court by Davis, J., in Barnard v. Kellogg, 10 Wall. 383. In that case a broker, having the plaintiff's wool for sale, sent samples to the defendant, with a statement of the price, and the defendant sent an offer for the same, if the wool all around equaled the sample, and the plaintiff’s broker gave notice of the acceptance of the offer, provided the defendant examined the wool on a day proposed. On the appointed day the defendant examined a portion of the wool, and had a full and fair opportunity of examining the whole of it, although the same was in bales. Some time after, on opening the bales, they were found to be damaged and rotten internally. The court held that it was not a sale by sample; that there was no express warranty; and that the plaintiff, under the circumstances of that case, was not liable upon an implied warranty;, and that the defendant, having had a full'opportunity to examine the wool, and having done so in part, was presumed to have relied upon his examination and judgment of the quality of the commodity in bulk; and the learned judge relates the well-settled rule as follows:

“No principle of the common law has been better established or more often affirmed, both in this country and in England, than that in a sale of personal property, in the absence of express warranty, when the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither a manufacturer nor grower of the article he sells, the maxim caveat emptor applies. Such a rule, requiring the purchaser to take care of his own interests, has been found best adapted to the wants of trade in the business transactions of life. And he cannot relieve himself and charge the vendor, on the ground that an examination will occupy time, and is attended with labor and inconvenience. If it is practicable, no matter how inconvenient, the rule applies. * * * Of such universal application is the doctrine of caveat emptor in this country that the courts of all the states of the Union where the common law prevails, with one exception, sanctions it. ”

The same rule obtains in this state. In Manufacturing Co. v. Allen, 53 N. Y. 515, it was held that upon an executory contract for the sale of a chattel, fraud or latent defect not having been alleged, acceptance after an opportunity to examine is conclusive upon the question of the quality of the goods, whether the agreement as to quality is expressed or implied. In Society v. Lawrence, 4 Cow. 440, it was held that in ordinary sale, when the vendee has an opportunity to examine the commodity, the vendor is not answerable for latent defects, without fraud or an express warranty, or such an affirmation or representation as is tantamount to a warranty, and not the mere expression of an opinion.

The law upon this subject is clearly stated in 2 Kent, Comm. (3d Ed.) 484, 485, as follows:

“There is no breach of implied confidence that one party will not profit by his superior knowledge as to facts and circumstances open to the observation of both parties, or equally within the reach of their ordinary diligence; because neither party reposes in any such confidence, unless it is especially tendered or required. Bach one, in ordinary cases, judges for himself, and relies confidently, and perhaps presumptively, upon the sufficiency of his own knowledge, skill, and diligence. The common law affords to every one reasonable protection against fraud in dealing, but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information. It reconciles claims of convenience with the duties of good faith to every extent compatible with the interest of commerce. This it does by requiring the purchaser to apply his attention to those particulars which may be supposed within the reach of his observation and judgment, and the vendor to communicate those particulars and defects which cannot be supposed to be within the reach of such attention. If the purchaser is wanting in attention to these points, when attention would have sufficed to protect him from surprise or imposition, the maxim caveat emptor ought to apply. ”

Applying the rules as above laid down, both upon principle and authority, to the case at bar, we do not see how the judgment in this case can be reversed. The case shows that the vendor invited the attention of the defendants to the examination and inspection of this lumber, and the defendants made such examination and inspection, as far as desired by them, before the purchase. The referee finds that there was no express warranty, and, as the evidence upon that point is somewhat in conflict, we think, upon the whole evidence upon that subject, his report cannot be disturbed by this court. As the sale was not by sample, there was no warranty, either express or implied, that the bulk of the lumber was as good as the portions examined especially by the defendants; nor does the referee find or the proof establish that the bulk differed from the part so examined. We have examined the various exceptions taken by the learned counsel for the defendants to the findings and refusals to find by the referee, and the other exceptions taken by the defendants on the trial, and see no error for which the judgment should be reversed.

Judgment affirmed, with costs. All concur.  