
    Rosa Schnitzler, doing business as Schnitzler & Co., Respondent, v. Thomas Kelly, Appellant.
    (Supreme Court, Appellate Term,
    September, 1897.)
    Executory sale — Vendee, "finding defects, must rescind promptly.
    It is the duty of the vendee, under an executory contract for sale and manufacture, promptly to return or to offer to return goods which, upon his inspection, fail to comply with the sample, and where "he retains the goods about six weeks and in the meantime has delivered them, under a contract, to a third party by whom they are rejected, the vendee is liable for the price.
    Appeal by defendant from a judgment of the justice of the Fourth District Court, in favor of plaintiff, for $250, besides costs, in an action to recover under a contract for making 4,600 lanyards. The defense was 'denial óf performance, with counterclaims. fon. breach of contract and for goods sold. ■
    Wm. Douglas Moore, for appellant.
    Herman Hearst, Jr., for respondent.
   Daly, P. J.

The plaintiff sued for the" contract price of 4,600 white cotton lanyards, which she agreed to furnish according to a certain sample. The defense disclosed was that all of the lam yards delivered, except 300, were inferior to the sample; and the defendant claimed damages for failure to deliver 4,700 out of the lot of 5,000, alleged to have been ordered.

The deliveries of lanyards were made by the plaintiff on October 4, 200; January 11, 300; January 13, 500; January 15, 700; January 19, 500; January 21, 600;- January 25, 600; January 30y 600; and the claim was made for 600 more, which' were manu- - factored, but not delivered. The total demand of the plaintiff for the above deliveries was $275. The justice gave judgment for $250.;'

The first delivery of 200 lanyards was not in accordance with the contract, and this was conceded by the plaintiff, who-waived a claim therefor before the commencement of the action. The price of that lot was $11; and we may assume that so much of the plaintiff’s demand was disallowed by the justice. -Of the subse-. quent deliveries, those made from. January 11 to January 25, both inclusive, and amounting to 3,200 lanyards, were received and retained by the defendant until March 2, when they were returned to the plaintiff. In the interim, defendant had delivered them at the navy'yard, to the government, under a contract which he had with the latter. For these goods so retained, the plaintiff was undoubtedly entitled to recover, for the reasons given below.

The 600 lanyards delivered on January 30, were immediately rejected and refused by the defendant, and apparently with good réáson. The additional 600 lanyards, for which plaintiff claims, were never delivered or tendered to the defendant, and no recovery therefor can be had. They were undoubtedly of the same kind and quality as the 600 which were rejected by the defendant, and the evidence clearly establishes that they were not up to the sample. What that sample was, whether one furnished to the plaintiff by tho defendant, or one submitted to the defendant by the plaintiff, is a matter of dispute; but, conceding that it was the latter, the plaintiff’s evidence fails to show that the deliveries in question conformed to it. Her best witness, an expert, testified that for trade purposes, the specimens taken from the deliveries were iden- ■ tical with the sample; that they were the same in general construction, so far as the naked eye cordd determine, but conceded that, if a dealer ordered a thirty-thread weave from him, he would consider it filling his order to ship him a weave twenty-five to the inch.' Tho defendant’s expert testified, without contradiction, that there was a difference of four threads to the inch in the specimens exhibited to him, and that that would make a difference in strength in the feel of the goods, and as regards tlieir hardness and firmness.

The plaintiff is entitled to recover for the lanyards -delivered from January 11 to January. 25, because, even if they were, as defendant claims, not equal to the sample, he knew this fact by inspection as each lot was delivered, and, .notwithstanding such knowledge, retained them, and offered them to the government under his own contract. He was bound to exercise his election promptly, and to return or offer tó return the goods immediately after discovering their quality by inspection. If he failed to do so, he,is liable for the price. National Keg & Box Co. v. Baker, 21 Misc. Rep. 35.

The defendant attempted to avoid the effect of his retention of the goods by testimony that he was solicited by the plaintiff’s agent to offer them to the government in the hope that they might be accepted; but the testimony of the plaintiff’s agent positively contradicts this assertion, and the issue of fact thus presented must bo deemed to have been determined by the justice in the plaintiff’s favor. There is no such preponderance of proof on the part of the defendant as warrants us in disturbing the finding. On the, contrary, there is some corroboration of plaintiff’s witness in the correspondence of the parties. On January 26, defendant wrote to plaintiff: Complaints are made of variation in size and color of yarns which requires your immediate attention.” This -was written after all the deliveries in question had been made, and after the government had, on January 21, notified the defendant of the rejection of 1,200 lanyards. If those goods had been offered to the government at plaintiff’s request, we should expect a communication of a different tenor from the defendant, and a rejection of the goods; whereas, ■ plaintiff is merely notified that the matter requires her attention. There was no reference to the alleged request óf plaintiff, and no rejection of the goods even then. Although the government first notified the. defendant of rejection On the 21st of January, the goods were-not returned to the plaintiff until the 2d of March,' ensuing. Eor the' goods so retained, therefore, viz.: 3^200 lanyards at $6 per hundred, $192, che plaintiff was entitled to a judgment,, less an admitted counterclaim of $14.62 for goods sold, leaving due her, $177.38. The judgment in her favor for $2.50 was excessive, and should-he modified accordingly.

The defendant’s counterclaim of damages for plaintiff’s failure to deliver 4,700 lanyards in conformity, with the contract was properly disallowed for want of evidence of the cost of supplying the proper article. The defendant assume/! that the measure of his damage was the difference between the $6 per hundred which he was to pay the plaintiff, and the $9 per hundred 'which he was to get from the government. It was not shown, however, that - the contract with the government at that price was disclosed to the plaintiff at the time that the latter made the contract' which is the subject of this action, so that the parties could be assumed to have contracted with reference to the defends ant’s dealings with the government Or the profit he was to make therefrom. It cannot be doubted that, after plaintiff’s contract was niade, she knew that these goods were to- be delivered to the government; but there is no evidence that the terms of such contract were disclosed to her, and it is not at all probable that defendant would have made such disclosure.

• If the plaintiff consents, the judgment in her favor will be reduced to $177.38, with costs and extra costs as allowed by the justice, and, as so modified, will be affirmed-for .that amount. If such consent be" not given, the judgment will be reversed and a new trial ordered, with costs to the appellant to abide the ¿vent-.

McAdam and Bischoff, JJ., concur.

Judgment modified as directed in opinion, .if respondent consents,, without costs of this appeal to either party, otherwise judgment reversed and new trial ordered, with costs to appellant to abide event.  