
    John V. Carr, App'lt, v. Timothy Sullivan et al., Resp'ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Sale—Acceptance—Warranty.
    Where a vendee, without complaint or notice to the sellers, directed his agent to sell the goods purchased, and made no communication to the sellers on the subject until they sued him on another matter, when he set up breach of alleged warranty in the sale of the goods as a counterclaim, Held, that he had unqualifiedly and unconditionally accepted the goods and such acceptance precluded a recovery for breach of warranty.
    2. Trial—Direction or verdict—Request to go to jury.
    While it is true that a request for the direction of a verdict is not necessarily a waiver of the right to go to the jury, but when such request has been denied, he may afterwards insist upon his right to go to the jury if he makes the claim in time, it is too late after the direction for a verdict has been given.
    Appeal by the plaintiff from a judgment of the county court of Brie county, in favor of the defendants, for $280.38, the amount of a counterclaim and costs, entered on the verdict of a jury directed by the court; and from an order denying the plaintiff’s motion for a new trial on the minutes of the court
    
      Hartzell & Newton, for app’lt; A. C. Calkins, for resp’ts.
   Dwight, P. J.

The action was the defendants as indorsers, in their firm name, of a promissory note for $294.59 made July 17, 1891, by “L. F. Genet Lumber Co.,” payable in three months, to the order of the defendants, for lumber sold by them to the maker and indorsed by them for discount at a bank in Buffalo. The note, at its maturity, was dishonored by the maker and protested for non-payment 1'he defendants then took up the note and shortly afterwards delivered it to the plaintiff on payment by him of the amount due thereon. The note was said to be lost at the time of the tidal, so that it was not produced in evidence, but it seems the indorsement of the defendants was not erased at the time of its delivery to the plaintiff. By the plaintiff’s verified complaint it is alleged that it was indorsed by the defendants at the, time of its delivery to him, but by his testimony on the trial he admits this statement not to be true.

At this point arises the first issue between the parties. The theory of the plaintiff’s case is that this was a purchase by him of the note as a subsisting obligation against both maker and indorsers; that of the defendants is that the transaction was a payment of the note by the plaintiff for the makers; and the evidence on either side tends to support the theory of each, with a very decided preponderance in favor of the defendants.

The answer, besides the defense above stated, sets up a counterclaim for the amount of a promissory note of $288 made by the plaintiff to the defendants for lumber sold by them to him, dated November 21, 1891, less than a month after the alleged purchase by him of the note set up in this complain! The plaintiff, by his reply, admitted the making and delivery of the note set up by the answer, but claimed to recoup thereon damages for the breach of an alleged warranty, by defendants, of the quality of the lumber for which the note was, given.

This presented the only remaining issue on the pleadings, and, on the proof, there was clearly no question for the jury. The alleged warranty consisted in the order given by the plaintiff and accepted by the defendants for the future delivery in New York of a car load of elm lumber of the qualities known as “ firsts ” and “ secondsand the evidence of the plaintiff, himself, shows that when the lumber was delivered to his agent in New York, and was reported to him by the agent as not being of the qualities ordered, the plaintiff, nevertheless, without complaint or notice to the defendants, directed his agent to sell the lumber, which he did; and the plaintiff made no communication to the defendants on the subject until by his reply in this action. This was an unconditional and unqualified acceptance of the property, and precluded any recovery thereafter for its failure to conform to the terms of the executory contract under which it was delivered. Reed v. Randall, 29 N. Y., 358; Rust v. Eckler, 41 id., 488; McCormick v. Sarson, 45 id., 265.

When the evidence was closed the plaintiff’s counsel requested that the court direct a verdict for the plaintiff for the amount of the note declared upon in the complaint, which the court declined to do. Defendants’ counsel then requested 'the court to direct a verdict in their favor for the amount of the note set up in the answer, less a drawback for freight which was conceded by the defendants; and the court directed such a verdict to be taken. After that direction had been' given, counsel for the plaintiff asked to go to the jury on each of the issues above defined severally ; which request was denied, the plaintiff excepted, and a verdict for the defendants was taken as previously directed.

It is now a familiar rule that when counsel for both parties request the court to direct a verdict, all of the issues of fact, as well as of law, are to be regarded as submitted to the decision of the court, and no question need be submitted to the jury. Dillon v. Cockcroft, 90 N. Y., 649.

It is true that a request for the direction of a verdict is not necessarily a waiver of the right to go to the jury, but when such request of either party has been denied, he may afterwards insist upon his right to go to the jury, if he makes the claim in time. It is manifestly too late to do so after the direction of a verdict has been given. The court has then acted upon the submission to it of all the questions in the case, and it is too late to withdraw the consent to such submission. Howell v. Wright, 122 N. Y., 667; 34 St. Rep., 212.

There was no error in the disposition made by the court of questions of fact in this case. Upon the second of the issues presented we have already held there was no question for the jury. And upon the first we have already intimated our opinion that there was a clear preponderance of evidence in favor of the defendants.

We find no other exception in the case which requires discussion.

The judgment and order appealed from should be affirmed.

Lewis, Macomber and Haight, JJ., concur.  