63 Barb. 506 | N.Y. Sup. Ct. | 1872
The defendants are merchants in blew York, dealing in syrups. The plaintiffs are manufacturers of wine, at Brocton, in Chautauqua county. In September, 1870, the plaintiffs, by parol, made an executory contract to purchase of the defendants eighty barrels of rock candy syrup, to be used by the plaintiffs in the manufacture of wine. At the time of the order given by the plaintiffs to the defendants, several samples of syrups were exhibited by the defendants, one of which was selected by the plaintiffs, and the order given for syrup of that description. At the time of the agreement for the purchase, the agent of the plaintiffs stated to the agent of the defendants, that in some syrups he had seen, sugar would fall down, and some would crystallize to candy. To which the agent of the defendants replied: “ Our syrup will not crystallize, or sugar fall down; I warrant our syrup all right.” The sugar was not owned by the defendants, at the time of this contract, but it was understood that it was to be subsequently procured by them of the manufacturers in Boston. The syrup was forwarded to the plaintiffs, in different lots, and by them received and used. There is a syrup made from sugar, called in the trade, sugar syrup, which is of a quality and price inferior to the rock candy syrup; and syrup in which the sugar falls down and crystallizes is much less valuable for use in the business of the plaintiffs than that in which this does not occur. The syrup Was sent to, and received by the plaintiffs, in eight different lots of from six to twelve barrels each, and used by the plaintiffs upon arrival, and was paid for by the plaintiffs’ remittance about the same time, except the last lot, which was paid for the following spring, and after the plaintiffs had claimed that the syrup was not of the description and quality agreed to be sent, and was not sent at the time agreed on, and demanded a rebate on this account, which was refused. This action is brought upon the allegation of a sale of syrup by the defendants to the plaintiffs,
It is held in Reed v. Randall (29 N. Y. 358) that “in cases of executory contracts for the sale and delivery of personal property, the remedy of the vendee to recover damages on the ground that the article furnished does not correspond with the contract, does not survive the acceptance of the property by the vendee, after opportunity to ascertain the defect, unless notice is given to the vendor, or the vendee offers to return the property. The retention of the property by the vendee is an assent on his part that the contract has been performed. He is not bound to receive and pay for a thing which .he has not agreed to purchase ; but if the thing purchased is found, on examination, to be unsound, or not to answer the order given for it, he must immediately return it to the vendor, or give him notice to take it back, and thereby rescind the contract, or he will be presumed to have acquiesced in the quality.” The same doctrine is also laid down in Hargous v. Stone, (1 Seld. 73,) and this, according to both the cases referred to, is the rule where there is an implied warranty; such, for instance, as that the article shall be of a merchantable quality. The case of Reed v. Randall, was the case of the purchase of a certain crop.of tobacco, then growing. The defendant agreed to sell the crop of tobacco, and to deliver the same to the plaintiffs, well cured and boxed, and in good condition, at such place in Syracuse as the plaintiffs should thereafter designate, the early part of May then next. The plaintiffs paid a part of the purchase money down, a further sum thereafter, and the balance on the day of the delivery of the tobacco, which was de
In the prevailing opinion, delivered by Judge Wright, he says : “ This conclusion, I think, was right. It is not claimedto be otherwise, unless there was a warranty that the tobacco, when delivered, should be well cured and in good condition. But the stipulation, in respect to the quality and condition of the article when delivered, constituted no express warranty. The contract was executory, for the sale of a growing crop of tobacco to be delivered the spring following, well cured and in good condition. The article bargained for, and to be furnished in the future, was a merchantable crop of tobacco. This was what the vendor agreed to sell and the vendee to purchase. It was the
It is unnecessary to refer to the various eases cited from the English reports, and the previous cases in this country, since these two cases of Hargous v. Stone, and Reed v. Randall, are supposed to embody the law on this subject, as at present settled in this State and intended to be administered by the courts. The quotations have been made from the opinions in those cases, that it may be seen, at a glance, precisely what was intended to be decided in .those cases. How far the court intended to apply the doctrine of caveat emptor and where they intended to stop.
It is obvious that there are many cases where the right to reject an article delivered under an order or upon an executory contract, will afford but an incomplete remedy.
How then are the plaintiffs to protect themselves against the inconvenience and embarrassment of such a position ? Cannot the parties contract against such a consequence? Most assuredly they can. The contract is lawful. It violates no requirements of public policy. The parties are competent to make such a contz-act. How then is such a contract to be made ? We answer, upon the authority of Hargous v. Stone and Reed v. Randall, by the vendee, at the time of the agreement to purchase, taking an express warranty that the goods, whezi delivered, shall possess the particular qualities which it is important to him to secure. Can it be supposed, after a careful perusal of the opinions delivered in Hargous v. Stone, and Reed v. Randall, that the court meant to hold that a party could not by express contract relieve himself from the obligation to return the property, and still hold the vendor responsible for the deficiency in quality ? It seems to us not.
In this ease there was no implied warranty of merchantable quality broken. The syrup was merchantable, and was indeed of a quality often used even by the plaintiffs themselves.
Its delivery would have been in compliance with a contract to sell and purchase syrup, but it did not comply with the express warranty, if there were one, which was a contract collateral to the sale of the goods, and not merged in it.
It now becomes proper to advert to two other cases in the court of last resort, decided since the case of Reed v. Randall. The first is the ease of Foot v. Bentley, (44 N. Y. 166,) decided by the Commission of Appeals. It appeared, in that ease, that the plaintiffs gave* the defendant’s travel-ling agent an order for teas, according to a sample exhibited by the agent at the time. The agent said he did not know how many packages of that kind of tea the plaintiffs had at the time, but supposed they had from ten to seventeen packages in all, and the agent warranted the tea in the packages to be better than the sample. The plaintiff* agreed to purchase it at a certain price, and it was agreed
.The contract was verbal, and nothing was paid at the time, and no delivery or change of possession took place until the tea was finally shipped upon the order of the plaintiff.
At different times after the contract the plaintiff sent the defendant his notes for the purchase money. And finally, about the 20th of April, pursuant to the order of the plaintiff the tea was shipped to and received by him at Rome. The plaintiff kept the tea till June before making any attempt to discover whether it was like the sample, without returning or offering to return it, and discovering it to be of an inferior quality, brought the action upon the warranty. The point was taken by the defendant, that the plaintiff should have examined the tea, and if it did not correspond with the sample, should have returned it; and the case of Reed v. Randall was relied on. But the commission held the plaintiff entitled to recover, and upon this point Gray, C., says: It was also objected that because the plaintiff did not, at the earliest practicable time, after the tea was received in store, examine it, and, on account of its being of less value than the sample, offer to return it, he ought not to recover; and in support of that position the case of Reed v. Randall was cited. The facts in that case did not, as the court decided, constitute a warranty, and it was disposed of on that ground. In this case, the warranty is found as a fact. Ho obligation, therefore, existed requiring the plaintiff to return or offer to return the property warranted.” It will be noticed that although it might be claimed, perhaps, that the sale of the tea was an executed sale, yet Commissioner Gray does not hold it to be such, or suggest that question as one of any importance, but understands the
In the same case Commissioner Earl delivered an opinion, arriving at the same result. He, however, does not meet the .question, whether there is any difference, as to this question, between a sale executory and one executed. His opinion is to the effect that, as there was no compliance with the statute of frauds, the sale became valid and was consummated on the delivery of the tea, and says: “.This, then, must be treated as an executed sale with warranty, and the plaintiff was entitled to recover without any offer to return the tea for any breach of warranty.” How, in the case at bar, there was no compliance with the statute of frauds, and, according to the opinion of Commissioner Earl, the sale became valid and executed as to the various parcels of syrup when they were respectively •delivered, and the warranty then attached. Upon the ground taken by either commissioner, in Foot v. Bentley, the nonsuit in this case was erroneous, if there was an express warranty ás to the quality of the syrup.
In McCormick v. Sarson, (45 N. Y. 265,) decided by the Court of Appeals, the defendant agreed to purchase certain lumber in the plaintiff’s mill-yard, consisting of three kinds, respectively denominated prime, merchantable and refuse, at specified prices for each kind. The lumber was thereafter to be measured and delivered. The defendant received the lumber, and gave receipts for a certain quantity as prime, and a certain other quantity as merchantable. In an action by the vendor to recover the purchase price of the lumber, on the trial, the defendant offered to show that the lumber receipted for as prime and merchantable was not such, but. was in fact of an inferior ■ quality. The majority of the court held that the defendant could not contradict the receipts. Peckham, J., deliv
We see, therefore, that the Court of Appeals appears to understand the rule as laid down by that court in Hargous v. Stone, and Reed v. Randall, as not embracing cases where there is an express warranty. And the Commission of Appeals not only so understands these cases, but seems to have expressly held that under a contract like that in the case at bar, if there be a warranty, the plaintiff can recover notwithstanding he has given no notice, and neither-returned nor offered to return the goods delivered.
In Neaffie v. Hart, (4 Lans. 4,) decided in this department, there was no express warranty pretended.
This brings us to the question, whether there was any evidence tending to show, and if any what, express warranty in this case. The testimony of the plaintiff Byckman, who made the bargain, is : “I told him that in some syrups I had seen, sugar would fall down, and some would crystallize to candy. He says : “ Mr. Byckmau, our syrup will not crystallize, or sugar fall down ; I warrant our syrup all right.” Here was an express warranty ex vi termini of something. What was it that was warranted ? Taken as a reply to the observation of Byekman, and in connection with the evidence that the purchase was of rock candy syrup, that it was so billed to the plaintiffs, and that rock candy syrup will not crystallize, or the sugar fall down, we think the testimony, by reasonable interpretation, tended to show an express warranty that the syrup to be delivered under the contract 'should, be rock
The interpretation of this conversation, and what particular warranty was intended, was, we think, in this case, a question for the jury. The idea that both parties supposed they were acting under an express warranty on this subject, is strengthened by the correspondence. On the receipt of the second lot of syrup the plaintiffs wrote: “We opened one barrel and find that this syrup crystallizes, but it looks well, and shall soon open on it right smart. If it is all right, then we shall have no trouble, but looks like sugar syrup. If so, it is all well.” In reply to this letter the defendants say: “You need have no fears that we will not do the square thing in all our transactions with you.”
Here the defendants were notified that the plaintiffs had some doubts whether the sugar was such as had been bargained for, and had some suspicions it was not, but were inclined to risk using it. Instead of cautioning the plaintiffs against using the sugar if it was not of the quality ordered, or offering to take it back, the defendants reply to the plaintiffs’ suggestions in a way calculated to induce them to go on and use the syrup, and to lead them to repose upon the idea that they, the defendants, would make the matter right. If the defendants were not absolutely called upon to caution the plaintiffs against using the sugar, on receiving this notification, if they intended to insist that by using it the plaintiffs would waive all claim against the defendants, for any deficieucj^ of quality, certainly- fair dealing would not permit them to lull the plaintiffs into security by suggesting, in ever so vague a manner, that the defendants would make a fair deduction if the quality of the syrup was not up to the contract. We think there was no warranty as to the time of delivery, which survived the acceptance and use of the syrup;
The judgment must be reversed and a new trial ordered; costs to abide the event.'
Johnson, P. J., concurred.
Barker, J., dissented.
New trial granted.
Johnson, Talcott and. Barker, Justices.