308 N.Y. 441 | NY | 1955
The complaint has been dismissed after a trial by the court sitting without a jury, in an action brought by a purchaser for breach of warranty of quality in the sale of linen cloth. Judgment has been entered in favor of the defendant-seller upon the ground that neither notice of defects in the goods nor any offer to rescind the sale was presented to the seller within a reasonable time after the purchaser knew or should have known of the breach of warranty. The defects in the cloth were discoverable upon inspection, and were held by the trial court to have been patent upon evidence that they were so. The opinion of the trial court states that it was held “ both in fact and in law ” that timely notice was not given to the seller. We need not decide whether the complaint should have been dismissed upon the facts or upon the law, inasmuch as the trial court found the facts in favor of the defendant, and the Appellate Division has affirmed. The judgment must be
In May, 1947, six months after delivery of this merchandise, a conversation occurred between representatives of the buyer, the seller (which is a jobber), and the manufacturer of this linen cloth. Plaintiff-buyer complained of the quality of the goods, and the manufacturer said to send it for examination to the Mutual Adjustment Bureau of the Cloth and Garment Trades, Inc. This bureau reported January 5, 1948 (fourteen months after delivery to plaintiff) that in certain respects the cloth was defective. Thereafter another conversation occurred, in which the manufacturer agreed to replace through seller whatever merchandise plaintiff claimed to be defective. Plaintiff replied that it no longer wanted any of this linen cloth, but wished to have gabardine substituted for the entire shipment. Seller offered to sell gabardine to plaintiff, and to credit upon the purchase price whatever linen cloth of the original shipment might be returned by plaintiff. Plaintiff refused to resolve the controversy on this basis, after examining the varieties of gabardine which seller had in stock, stating that the quality was not satisfactory. That was the extent of the conversations between these parties which the buyer contends constituted waiver of notice of defects or of rescission.
The buyer’s (plaintiff-appellant’s) contention is, as stated in its brief, that “ Where the seller acts on the notice received and undertakes to remedy the defects in the goods sold or receives and accepts the goods or a portion thereof back, he waives all right to assert that the notice or return was defective or not timely.” For that reason, it is argued that the judgment appealed from should be reversed upon the law.
At the beginning is the circumstance that, at the time of this alleged waiver, the purchaser of the goods had lost all rights to avail itself of breach of warranty due to the finding of fact that more than a reasonable time had elapsed before giving notice of defects or offering to return the goods. It is, of course, axiomatic that if a seller accepts the return of goods, even after the lapse of a reasonable period of time, it constitutes a rescis
The most that this record discloses is that the seller through the manufacturer offered to replace goods that were claimed to have been defective. That is a different offer on the part of the seller from acceptance of a rescission proffered by the buyer. In this instance, neither seller nor manufacturer expressed willingness to cancel the sale, either in whole or in part. The seller
If the offer to rescind had been made within a reasonable time, the buyer would have been entitled to insist upon its rights. The buyer cannot successfully contend, however, that the untimeliness of its demand for rescission was waived by the seller, by acceding to a rescission, whereas the seller did no such thing but insisted upon the contract’s being carried out through the substitution of satisfactory goods for those which had proved to be defective. If the buyer had been willing to take the replacements offered by the seller, the effect would have been that the contract would have been performed as thus modified but not rescinded. Of course, if the buyer had punctually given notice and demanded rescission, the seller could not have compelled the buyer to consent to a substitution of defective goods in the absence of a clause in the contract requiring it. Here the seller had been freed from any legal liability due to the buyer’s delay in acting. The seller was not obliged to replace defective merchandise, or to cancel the sale or to pay damages. If the seller offered to replace any of the goods, that was an act of grace. The mere circumstance that the seller was willing to overlook the tardiness of the notice of defects and demand for rescission on condition that the buyer accept substituted merchandise, falls short of signifying that the seller voiced an intention to cancel the contract by restoring the parties to their position before it was made.
Waiver is the voluntary relinquishment of a known right (Davison v. Klaess, 280 N. Y. 252, 261). The seller is deemed to have waived its rights only to the extent that relinquishment is made manifest by what it said or did. The utmost concession which the seller made was by the expression of a willingness to substitute good merchandise for so much of the delivery as had turned out to be bad. That much the seller was willing to concede, regardless of the circumstance that the buyer had lost its rights due to delay in giving notice. The buyer refused to accept the substitutions, and the seller was not willing to do more. The seller would not agree to accept the unconditional return of all of the goods or any of them, and would not take them back unless the buyer received substituted merchandise and paid for all of it at the contract price, or bought gabardine instead. Now the buyer, crying waiver, asserts that the legal effect is the same as though the seller had accepted unconditionally the buyer’s belated offer to return all of the merchandise
This appeal does not involve excusing delay in giving notice of defects or demanding rescission in situations where the buyer has been lulled into security during the passage of the critical time by words or conduct of the seller in attempting to repair defective machinery, or in giving other assurances that deficiencies would be made good in consequence whereof the buyer has remained silent during the time when it is claimed at the trial that he ought to have complained. Here the buyer relied upon no act or representation by the seller to the buyer’s disadvantage which might have extended the time for the buyer to act. The seller repaired none of the property after delivery, and received nothing back in return. The goods were tendered back upon no terms that were accepted by the seller, nor did the seller ever volunteer to retake or replace anything upon any terms agreeable to the buyer.
The judgment appealed from should be affirmed, with costs.
Conway, Ch. J., Desmond, Dye, Fuld, Fboessel and Bubke, JJ., concur.
Judgment affirmed.