By the Court, Sutherland, P. J.
By the written - contract, the hops were to be inspected and branded by John F. Scott, and delivered in the city of New York, on or before the 20th November, 1860, and paid for by draft on the defendants at thirty days, or other satisfactory payment made. The hops were in fact inspected and pronounced by John F. Scott to' be first sort, but were not branded as such by- him. This was alleged in the complaint, can hardly be said to have been denied by the answer, appears to- have been conceded on the trial, and was found by the referee. Whether the conversation between 0. W. Buel and John S. Brown, about *229telegraphing to Scott for permission to put his brand on the hops, took place on the 20th of November, the last day for the delivery of the hops by the written. contract, or subsequently, on the 21st or 22d; and whether such conversation was as stated by C. W. Buel and L. P. Perkins, the plaintiff’s witnesses, or as stated by the defendant Brown, and two or three others, were questions of fact, as to which the evidence was conflicting. The evidence of one of the defendants’ witnesses, Smith, tended strongly to support the evidence of Buel and Perkins. The referee found as a fact, that on the 20th of November, about 11 a. m. the plaintiff’s agent (C. W. Buel) on his attention being called to the provision- of the contract requiring the hops to be branded by Scott, offered to telegraph for permission to put the brand on, there being telegraphic communication between New York city, where the offer was made, and Cooperstown, where the inspector resided, and that the defendant John S. Brown, to prevent his doing so, stated, in substance, that they (the defendants) would not require it, or that it would make no difference, and thus prevented their being branded. This finding by the referee must be deemed conclusive between the parties, as to the questions of fact above stated.
Having found on these questions of fact against the defendants, I think the referee was clearly right in holding as matter of law, that the defendants were estopped from insisting upon the omission to brand, as a defense. It is to be presumed that if the defendant Brown had not waived the branding, Buel might and would have telegraphed as he proposed, and that he would probably have obtained Scott’s authority to brand. He must be supposed to know enough of telegraphic operations to authorize us to presume, if Brown had insisted upon the branding, that Buel might by telegraph have obtained Scott’s permission to brand, in time to havé branded the hops, and to have delivered them branded, on the 20th of November, according to the contract.
I think the evidence offered by the defendants, to show *230that the hops, when they arrived in New York, and on the 20th day of November, 1860, when offered to the defendants, had been injured by heating, and were of inferior quality to first sort, and worth less, was properly excluded by the referee. The offer xvas not to show that the hops had been injured by heating or otherwise, after they had been inspected by Scott and passed by him as first sort. It was not pretended that the bales had been opened and the hops examined after they arrived in New York. The inference from the exddence is, that when the conversation betxveen Buel and Brown as to the hops not being branded &c. took place in New York, the bales had not been opened,, or the hops examined there. The whole case shows that the only ground upon which the defendants declined receiving the hops and paying for them xvas, that they had not been branded, as required by the contract. It is plain that the referee and the counsel for the plaintiff understood and had a right to understand, the offer of the defendants to show the inferior quality of the hops, as substantially an offer to show that the hops, when inspected by Scott, were of a quality inferior to first sort. The xvitness Dunkle, by whom the defendants offered to show this, resided in Schoharie county, was a farmer, and it was not pretended that he had seen the hops after they xvere inspected by Scott.
[New York General Term,
November 2, 1863.
As to the quality or grade of the hops when inspected by Scott, the written contract made his inspection and determination conclusive upon the parties. I think the referee xxras right in holding the contract price to be the rule of damages.
The defendants actually received the hops into their store, and had them at the time of the trial, if they had not disposed of them.
Having examined all the material grounds Urged on the part of the defendants for a reversal of the judgment and a nexv trial, I am of the opinion that the judgment should he affirmed xvith costs.
Sutherland, Leonard and Barnard, Justices.]