45 N.Y. 265 | NY | 1871
This was an action for the price of different kinds of lumber, alleged to have been sold *267 and delivered. Denial by defendant. The contract proved required the delivery to the defendant of all the lumber in plaintiff's yard, consisting of three different qualities at different prices. The plaintiff had proved the delivery to, andacceptance by defendant's agent, of the lumber, as of the different qualities claimed, viz., so much prime, so much merchantable, and so much refuse. The defendant then offered to prove that "all the lumber for which the action was brought as prime and a large portion of that claimed as merchantable, was not prime or merchantable, but only refuse, and of a vastly inferior quality to prime or merchantable."
This was rejected by the court, and defendant excepted.
The precise ground of the decision does not appear. In the General Term, the court inferred that it was rejected upon the pleadings. That no notice had been given of any claimed defect in the lumber delivered and received as prime or merchantable.
If the plaintiff claimed there was any defect in the pleadings, he should have taken that objection at a time and place where they could have been amended. We ought not to listen to such an objection when first presented to a court of review; to do so might in many cases cause great injustice.
Was the evidence offered admissible on the merits? I think not. The evidence then before the court proved that the lumber had been delivered to and accepted by defendant's agent as of the qualities claimed. The contract had been executed. The receipt was evidence that the defendant had knowingly accepted this lumber and received it as of such a quality,
The testimony offered did not propose to contradict that. In fact, it was entirely in harmony with that evidence. It said virtually: I had an opportunity of examining this lumber; I did examine it, and accepted it as prime, but afterward I ascertained it was not prime; I changed my opinion and judgment; the fact was otherwise.
This will not do. If he accept it after examination or after an opportunity for examination, as fulfilling the contract, he *268
is bound by such action. This rule is well settled. (Reed v.Randall,
If the defendant could have had any relief, he should have given notice of the inferior qualities of the lumber as soon as discovered, and offered to return it unless plaintiff would consent that it should be regarded as refuse, and so applied upon the contract. (Sprague v. Blake, supra; Reed v. Randall,supra.) There is no evidence of any such notice or claim by the defendant.
Nor does it make any difference that the defendant was to take all the lumber of the plaintiff. The contract provided for the receipt of different qualities. When delivered and accepted as prime quality, that lumber was then upon the same basis in law as if the contract had provided only for the delivery of prime lumber. It was controlled by the same rules, and so of the other qualities. The judgment is affirmed.
FOLGER, RAPALLO and ANDREWS, JJ., concur.
CHURCH, Ch. J., ALLEN and GROVER, JJ., dissent.
Judgment affirmed.
