
    The Coplay Iron Co. (Limited), Resp’t, v. Thomas J. Pipe et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Sale—Executory contract—Acceptance of goods under—When RIGHT TO OBJECT TO QUALITY LOST.
    The acceptance of goods, by the vendee, bought under an executory contract of sale, without any offer to return the same at any time, deprives him of any right to make complaint of its inferior quality.
    2. Same—Construction of contract.
    The plaintiff sold and agreed to deliver to the defendants 900 tons of No 1, extra foundry pig iron of the Coplay Iron Company (limited), make, and agreed to deliver and ship the iron on board the cars at its furnace as and when ordered by the defendants. The defendants paid the full price of the iron. Held, that it was an executory contract of sale; that the price' of property may be paid, and yet the contract of sale in every sense be ex-ecutory.
    8, Same—Warranty as to quality.
    
      Held, that there was no collateral warranty as to the quality of the iron; that the representation as to the kind and quality of iron was part of the contract of sale itself, descriptive simply of the article to be delivered in the future.
    This action was commenced to recover the price of 500 tons of pig-iron sold and delivered by the plaintiff to the defendants. In their answer, by way of counter-claim, the defendants allege that they are dealers in iron and are not engaged as manufacturers or consumers thereof; that on or about the 8th day of December, 1879, the plaintiff sold and agreed to deliver to them 900 tons of No. 1, extra foundry, pig-iron of the Coplay Iron Company (Limited), make, at the price of twenty-seven dollars per ton; that it agreed to deliver and ship the iron on board the cars at its furnace as •and when ordered by the defendants; that they paid it the full price of the iron; that No. 1 extra, was a grade of pig-iron of certain well known quality in the market; that they purchased the iron to sell again to their customers, which was well known to the plaintiff; that relying upon plaintiff’s promise and agreement, they sold to E. P. Allis & Co., one of their customers in Milwaukee, 500 tons of the iron at and for the agreed price of thirty-four dollars per ton, to be delivered at the furnace of the Coplay Iron Company (Limited), and for which E. P. Allis & Co. fully paid them; that they ordered the plaintiff to ship the iron, and thereupon it made a shipment of iron upon the contract, which it claimed and pretended was No. 1 extra iron, which, in fact, was not No. 1 extra iron, but a grade of iron of inferior quality and of less value than No. 1 extra iron, or the quality it agreed to deliver, and it delivered to them therefor, bill of lading in which the same was described as number one, extra iron; that they sold their iron to their customers as number one, extra iron; that they did not examine the iron, and had no opportunity to examine the same; that they relied upon the promise and agreement and bills of lading, and 500 tons of the iron were forwarded to their customers without examining the same; that on or about the 31st day of July, 1880, as soon as the iron arrived at Milwaukee, •and they had inspected the same, E. P. Allis & Co. notified these defendants that the 500 tons of iron sold and delivered by these defendants to them was not number one, extra iron, but was of a quality or grade greatly inferior thereto, and entirely unfit for use as number one, extra iron, and they refused to accept the iron and demanded of these defendants the return of the purchase price paid by them therefor, with interest, and the cost of transporting the same from the furnace to the Coplay Iron Company (limited) to Milwaukee, and storage expenses; that these defendants forthwith duly notified the plaintiff of the inferior quality of the iron, and the claim made by these defendants’ customers, and requested plaintiff to examine the iron, and notified it that they would hold it responsible for all damages they might sustain by reason of its failure to deliver the iron required by the contract; that the iron so delivered, or agreed to be delivered by the plaintiffs to these defendants, was not number one, extra iron, but iron of a quality greatly inferior thereto, and not of the standard or quality of number one, extra iron, and wholly unsuitable for use in these defendants’ customers’ business; that it was not number one, extra Coplay iron; that these defendants’ customers refused to accept, and have not accepted, the
    
      iron, and it remains subject to the plaintiff’s order, and these defendants have not accepted the same. That these defendants have sustained damages by reason of the inferior quality of the iron and the breach of plaintiff’s agreement as to the quality thereof, and its refusal to deliver the iron purchased of it, and of its refusal to return the moneys so received from, these defendants, and they demanded that the complaint be dismissed, and that the defendants have judgment for the amount of their damages and counterclaim.
    The case was brought to trial at a trial term of the court of common pleas of New York city, and a jury was empaneled to try the same. Counsel for the plaintiff then moved the court for judgment upon the grounds: “First, that there is no defense set up to the cause of action set-forth in the complaint; second, that the facts set up byway of counterclaim are not only not sufficient to constitute a cause of action, but show affirmatively that there is no liability whatever on the part of this plaintiff to the defendants.” The defendants then conceded that the plaintiff’s claim set forth in its complaint was admitted by the answer, and they then offered to prove the counterclaim set up in the answer. Plaintiff’s counsel then admitted, for the purpose of his motion, that all the allegations in the-answer were proved. The court then directed a verdict for the plaintiff, to which direction defendants’ counsel excepted. The judgment entered upon the verdict thus directed, having been affirmed at the general term, the defendants have appealed to this court.
    
      Wm. W. Niles, for app’lt; Chas. B. Alexander, for resp’t.
   Earl, J.

We must assume that the sale of iron alleged in the defendant’s counterclaim was an executory sale, as-that is the fair and just inference from the facts alleged. The plaintiff was a manufacturer of iron, and the contract of sale was made on the 8th day of December, 1879. It covered 900 tons of iron, and it was to be delivered in the future as and when the defendants ordered it to make delivery. There is no allegation that the plaintiff at the time of this sale had the identical 900 tons of iron on hand, or that that quantity was separated from other iron. It would be against all experience, and certainly against the usual course of business, to suppose that the manufacturer had the iron on hand, and that upon its purchase by the. defendants it was separated and set apart and stored for them. It is reasonable to suppose, and as all the facts were submitted to the court, neither party asking to have them submitted to the jury, the court had the right.to draw the inference that the iron was to be thereafter manufactured, weighed, designated and delivered; and thus this was an executory contract of sale. In such a case the fact of payment has very little significance. It is sometimes a controlling fact to show that the sale was not executory and was completely executed. It is always evidence upon that question, but in a case like this is not important. The price of property purchased may be paid, and yet the contract of sale in every sense be executory.

Treating this then as an executory contract of sale, the defendants are not in a position to complain of the quality of the iron, because they never offered to return it, and never gave the plaintiff notice or opportunity to take it back. They must, therefore, be conclusively presumed to have acquiesced in the quality of the iron. Hargous v. Stone, 5 N. Y., 13; Reed v. Randall, 29 id., 358; McCormick v. Sarson, 45 id., 265; Dutchess Co. v. Harding, 49 id., 323; Gaylord Mf’g Co. v. Allen, 53 id., 515.

Here there was no collateral warranty or agreement as to the quality of iron. The representation as to the kind and quality of iron was part of the contract of sale itself, descriptive simply of the article to be delivered in the future; and clearly within the cases cited an acceptance of the property by the defendants, without any offer to return the same at any time, deprives them of any right to make complaint of its inferior quality.

The judgment should be affirmed, with costs.

All concur except Andrews, J., not voting. 
      
       Affirming 13 Daly, 144.
     