29 N.Y.S. 639 | N.Y. Sup. Ct. | 1894
Hone of the evidence is here. The questions arise upon the exceptions to the conclusions of law of the referee, and those conclusions are dependent for support upon the facts as found by him. The referee found that the plaintiffs agreed to make and deliver to the defendants an extra large varnishing machine, to connect with a certain drier, at a certain price, and represented, agreed, and warranted that it should be of capacity sufficient to properly varnish 10,000 sheets of labels or advertisements per day, and be complete in all its parts; that the machine delivered to the defendants was not complete in all its parts, was not made in a workmanlike manner, and that it was not of a capacity sufficient to varnish 10,000 sheets of labels or advertisements per day; and, as one of his conclusions of law, the referee found and determined “that the defendants, by retaining possession of the machine, using the same, and deriving profit therefrom, "with knowledge of its imperfections and incapacity, as well as making repairs and alterations thereon, accepted the machine, and became liable to pay therefor.” To this conclusion the defendants excepted.
The contract for the sale and delivery of the machine was executory. In such case the remedy of the vendee, if the property does not correspond with that which, by the contract of sale, the vendor undertook