170 N.Y. 162 | NY | 1902
This was an action to recover the price of certain goods sold and delivered by the plaintiff to the defendants. At the trial the court directed a verdict for the plaintiff, and the defendants' exceptions were subsequently reviewed at the Appellate Division, where they were overruled *165 and judgment directed for the plaintiff on the verdict. From the judgment thus entered the case comes here upon appeal.
The defense to the action, as disclosed by the argument in this court, was a breach of warranty. It was claimed that the goods were sold by sample, and that, therefore, there was an express warranty that the goods to be delivered should correspond with the sample; that they did not so correspond, but were different and inferior, and hence the defendants sustained damages, which they attempted to assert in the form of a counterclaim to the plaintiff's right of recovery. The learned counsel for the defendants in his printed brief and oral argument has presented to the court a valuable and exhaustive discussion on the law of warranty as applicable to the sale of goods, and has reviewed the authorities on this subject from the earliest times in this state. If the questions discussed were really involved in this case the court would doubtless derive great benefit from the clear and exhaustive examination that he has given to the question. But it is very doubtful whether any question arising upon the law of warranty is involved upon this appeal; and it is fair to say that the learned counsel who argued the case evidently did not draw the answer or participate in the formation of the precise issues of fact which the case presents. It is somewhat difficult to determine the precise defense which the pleader had in mind when the answer to the complaint was framed, and it becomes necessary in any review of the case in this court to determine at first the precise issues or questions which the record presents.
The complaint alleges that on or about the tenth day of February, 1898, the plaintiff entered into an agreement with the defendants to manufacture for and sell to them three thousand bicycles upon specifications furnished, and shipment to consist of three to four hundred bicycles, to be made within three weeks of the acceptance of the order, and subsequent shipments to be made regularly by almost every steamer of the Vogemann line to Hamburg; a minimum quantity of five *166 hundred bicycles to be delivered in Europe by the end of March, 1898, and twelve hundred and fifty wheels to be shipped in the months of April and May, 1898, respectively, at the price of twenty dollars a wheel, delivered on the dock in New York city. That pursuant to such order the plaintiff has been, since the existence thereof, manufacturing and delivering to the defendants bicycles therein specified, and has delivered to them thereunder the total number of twelve hundred and thirty bicycles, amounting to the sum of twenty-four thousand six hundred dollars, which bicycles were duly accepted by the defendants. That the defendants have paid to the plaintiff on account of the bicycles delivered under said contract the sum of thirteen thousand dollars, leaving unpaid thereon the sum of eleven thousand six hundred dollars, all of which is now due and owing by the defendants to the plaintiff, and no part of which has been paid, although due demand has been made upon the defendants therefor.
And for a second cause of action the complaint alleged that on the ninth day of May, 1898, the plaintiff sold and delivered to the defendants certain goods, wares and merchandise, to wit, one hundred juvenile bicycles, at the agreed price of seventeen dollars each, amounting to the sum of seventeen hundred dollars, which is now due and owing by the defendants to the plaintiff, and no part of which has been paid, although due demand has been made upon the defendants therefor.
These allegations of the complaint were not met in the answer by either a general or specific denial. The defendants in their answer, it is true, give a different version of the transaction, and in the narrative they deny certain facts, among others, that they paid the plaintiff thirteen thousand dollars on account of the bicycles, or that there was due the sum alleged. They admitted, however, that the plaintiff delivered to them the total number of twelve hundred and thirty bicycles, but denied that they accepted the same. They also denied that the bicycles delivered were worth the sum alleged in the complaint, but were defective in many parts. The answer also contains various counterclaims, based upon the theory *167
that there was a warranty of the goods. But, as already stated, there was no denial, general or specific, of the allegations of the complaint referred to, except so far as such denial could be spelled out or inferred from an inconsistent version of the transaction given by the pleader in the answer. The allegations of a complaint are controverted or put in issue only by a general or specific denial. A material fact alleged is not controverted or put in issue by a statement inconsistent with the facts alleged, or from which a general denial may be implied or inferred. (Rodgers v. Clement,
Passing from the case as presented by the pleadings, to the actual disposition made at the trial and the exceptions taken, a similar difficulty is presented. At the close of the trial the plaintiff's counsel moved to dismiss the counterclaims, on the ground that they did not contain facts sufficient to constitute a counterclaim, and, secondly, that there was no allegation of an express warranty, and that it then appeared that the goods had been delivered on the dock according to the contract, where they remained a sufficient length of time subject to inspection; and that it appeared that after such opportunity the defendants took possession of the goods and shipped them to Hamburg. The court granted the motion *168
and dismissed the counterclaims, to which ruling the defendants' counsel excepted. The defendants' counsel then moved to dismiss the complaint on the ground that no contract had been proved. This motion was denied and an exception taken. The defendants' counsel also moved to dismiss the complaint, so far as the second cause of action was concerned, that there had been no contract proved in relation to those bicycles delivered, and on the ground that the plaintiff had not proved facts sufficient to constitute a cause of action in regard to these particular wheels. This motion was denied and an exception taken. The plaintiff's counsel then moved for the direction of a verdict in favor of the plaintiff for the amount claimed, and the court thereupon directed a verdict for the plaintiff for the sum claimed, with interest, to which direction the defendants' counsel excepted. The court then directed that the exceptions be heard in the first instance by the Appellate Division. It will be seen that the learned counsel for the defendants did not request to have any question of fact in the case submitted to the jury. His motion to dismiss the complaint was based upon questions of law, which the trial court decided adversely, and his exception to the dismissal of the counterclaims, in the absence of any request to go to the jury, could present no question if the contract was correctly stated in the plaintiff's complaint, since it is impossible to imply any warranty in a contract formulated in the terms there alleged. It is at best very doubtful whether these exceptions, under a recent decision of this court, present any question of law for review. (Trimble v. N.Y.C. H.R.R.R. Co.,
While the decision of this appeal could possibly rest upon the point suggested, it is never desirable to have important cases decided in this court upon mere errors or questions of practice, after a trial in which no specific objection to the form of the pleading was made, and so we have carefully examined the record with a view to ascertain the real merits of the controversy. We have read the somewhat extended correspondence that preceded and followed the making of the contract upon which this action is based and by means of which the minds of the parties met. It appears that the defendants purchased goods to ship to a firm of dealers in Germany, and so the goods were intended for the German market; but so far as the plaintiff is concerned the transaction was one with the defendants and he had no relations with the German firm. A buyer of goods may undoubtedly defend an action by the seller for the price, on the ground that the executory contract of sale has not been performed, in that the kind, quality or description of the goods delivered does not conform to the contract, or in other words, that the goods delivered were not the goods contracted for. But that is a defense, which in the absence of a warranty, does not survive the delivery and acceptance of the goods by the buyer. His obligation is to inspect the goods when delivered and if they do not correspond with the contract to so notify the seller. If he accepts the goods without objection he cannot when sued for the price be heard to allege that the contract was not performed. In this case the goods were to be delivered free on board the Hamburg steamer at the dock in New York. The plaintiff was responsible for their condition at that place as it was the place of delivery, but not for their condition at the end of the ocean voyage, or after arrival at the place of ultimate destination in the interior of Germany, where the defendants' correspondents had their place of business. When the wheels in question were delivered at the dock the defendants, with full *170 opportunity for inspection, took them into their possession and under their control and shipped them to Hamburg, and it was not until after the German firm failed that any question was raised or objection made that the goods did not correspond with the contract. Inasmuch as upon the pleadings and proofs the fact that the wheels had been delivered to and accepted by the defendants at the place of delivery was conclusively shown, there was nothing to submit to the jury on that question.
But a warranty as distinguished from mere non-performance will generally survive delivery and acceptance and may be invoked by the buyer as a general or partial defense in any action to recover the price of the goods. Apart from the point suggested, that a contract of sale without warranty was admitted by the pleadings, we think that none was established by the proofs, or rather that there was no proof tending to establish any such contract. That defense depended entirely upon the question whether the transaction, which resulted in the delivery of the goods, amounted to what in commercial parlance is known as a sale by sample. There is no claim here that the wheels had any latent defects, and, hence, the cases where a manufacturer is held bound by an implied warranty against such defects, have no application. (Carleton v. Lombard, Ayres Co.,
PARKER, Ch. J., GRAY, BARTLETT, HAIGHT, MARTIN and VANN, JJ., concur.
Judgment affirmed. *172