
    Max Gentilli, Resp’t, v. Achille Starace, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 12, 1892.)
    
    1. Sale—Wabbaety—Bbeach.
    Plaintiff, through a broker, sold defendant 169 cases Prosperi’s Chianti wine, “ all to be in good merchantable order. Delivery on steamer’s dock. The said goods to be approved by buyer within three days after delivery. Terms: payment by notes, for one-half the amount each, at 60 and 90 days respectively.” The goods were delivered, and five days afterwards, the defendant gave the notes, the first of which was paid, and in an action on the second, the defense was breach of warranty, in that the wine was. some time after the sale found to be imperfect and unsound. Held, that there was no warranty in the contract of sale other than to allow the buyer-three days within which to-ascertain whether the wine was “in good merchantable order.”
    2. Same—Estoppel.
    Where the seller is not the manufacturer, and the article sold is in esse, and open to inspection and examination, and no fraud is' charged or exists, and the buyer claimed and was allowed his time to exercise his judgment, and to approve of the goods bought, the acceptance and retention of the goods concludes him, and there is no warranty or agreement by the seller which survives the transaction.
    Appeal from judgment of the New York superior court, general term, reversing judgment entered- in favor of defendants on report of referee, and ordering new trial.
    
      John JJ. Lewis, for app’lt; Wrn. J. Weldon, for resp’t.
    
      
       Affirming 39 St. Rep., 343.
    
   Gray, J.

The plaintiff, who was a commission merchant in New York city, sold to the defendant, who was engaged in the same business, certain wines, through a broker, whose note of the sale stated it to be of “ 169 cases Prosperi’s Chianti wine, just arrived per S. S. 1 Trinaeria,’ at the prices and terms hereinafter mentioned, to wit: (giving quantities and prices) * * * All to be in good merchantable order. Delivery on steamer’s dock. The said goods to be approved by buyer within three days after delivery. Terms: payment by notes, for one-half the amount, each, at 60 and 90 days respectively '* * *

The first note was paid, and the present action is to recover upon -the second note. This recovery is sought to be defeated by the defense of a failure of consideration; in that the wine, some time after the sale was completed, was discovered to be imperfect and unsound, and hence, as it is contended, an express warranty that the wine was intrinsically sound and free from latent defects was broken. This warranty, the appellant argues, was conveyed by these words in the broker’s note of sale: “ All to be in good merchantable order.”

We think his appeal must fail, for the reason that the contract of sale nowhere expresses nor imports any agreement on the seller’s part that the wine should be of any particular quality, or that any rights should survive to the buyer after his acceptance as against the seller which would authorize him to attack the sale for defects in the condition of the wine subsequently discovered. The wine was on the dock when sold, and the complaint as to its unsoundness was made some three months afterward. It was justified by a chemical analysis of the wine made by a chemist, who gave it as his opinion that the wine had been bottled while in a state of secondary fermentation. This condition, though possibly latent to the casual or ordinary taste at times, is, nevertheless, it was said, discoverable always by chemical tests.

For the court to hold that, upon this sale so effected, there was conveyed a warranty to the seller in the language used, that at any and all times subsequent to the acceptance of the wine it should, upon examination or test, be found a desirable article, free from latent defects or unsoundness, would, in my opinion, be an extreme and unwarranted application of the doctrine upon which the rights of purchasers are made to depend. It • is the general rule in such cases that the existence of a warranty is to be determined by the circumstances of the particular case. That is the rule where a warranty is sought to be implied. Where application is sought to be made of words of warranty in a contract like these, they should be "read in connection with the other language, and the warranty is to be intez-preted according to the particular circumstances of the transaction.

In the present case the plaintiff was not the manufacturer of the wine. It is not pretended that any fraud was' practiced by him. The wine was on the dock subject to inspection, and three ■days after delivery was specified in the memorandum of sale as the time the-buyer might take for approval. No knowledge was imputable to the seller, and tfye' buyer’s opportunities were quite as good as the seller’s to judge of the wine for quality and condition.

The buyer might have required any other form of express warranty as to the wine he was about to purchase than what he did ; but he was content with a stipulation from the seller that it should all be “ in good merchantable order ” and that he might have three days to approve of it. It might be said that a construction was placed úpon their contract by the acts of the paz-ties ; for within the three days after the receipt of the wine in defendant’s store he made some objections as to cases which examination showed to be wine stained, and a claim was thereupon allowed by the plaintiff. According to the evidence, and as in fact it was found by ,the referee, a chemical analysis could have discovered the alleged defects in the condition of the wine.

I think, under the circumstances of this case, where the seller was not the manufacturer, where the article sold was in esse and open to inspection and examination, and where no fraud is charged, nor existed, and the buyer claimed and was allowed his" time to •exercise his judgment and to approve of the subject of the transaction of sale, the acceptance and retention pf the goods-concluded him, and there was no warranty and no agreement by the seller which survived the transaction. The principle of this conclusion I think is deducible from the authorities; several of which I cite without further reference. Parkinson v. Lee, 2 East, 314; Sprague v. Blake, 20 Wend., 61; Reed v. Randall, 29 N. Y., 358; Dounce v. Dow, 64 id., 411.

The contract in this case called for a delivery of that description of wine known as “ Prosperi’s Chianti wine;” which should be “in good merchantable order,” and was to be “approved by buyer within three days.” That kind of wine was in fact delivered and the merchantable order of the goods was a fact which,though warranted, was to be ascertained by the buyer for himself within the delay allowed. It was open to the buyer, if he distrusted his judgment, or if for any reason he wished it, to require an express warranty to cover the quality or other points about the wine. He did not do so and, under the terms of the contract, of the parties, we should hold that as to the seller it was fully executed, and no warranty survived in favor of and available thereafter to the buyer.

For the reasons assigned, the order appealed .from should be affirmed and, under the stipulation in the notice of appeal, judgment absolute should be ordered in favor of the plaintiff and against the defendant, with costs.

All concur.  