102 N.Y.S. 342 | N.Y. App. Div. | 1907
The defendants appeal from a judgment entered on the verdict of a jury in an action brought to .recover damages for breach of warranty. The facts are practically undisputed, and the only question requiring consideration is that raised by the defendants’ motion to dismiss the complaint, to wit: Does the warranty accompanying an executory sale of goods by sample where there are no express words of warranty survive acceptance by the' vendee if the defects complained of were discoverable upon inspection ?
While there may be no single case in this. State in which all of
The first exception to the maxim of the common law, caveat 'emptor, recognized in this State was the case of Bale by sample, and the earlier decisions were to the effect that on a sale by sample there was an implied warranty that the bulk was equal to or of the same quality as the sample. (Oneida Mfg. Society v. Lawrence, 4 Cow. 440 ; Andrews v. Kneeland, 6 id. 354; Gallagher v. Waring, 9 Wend. 20; Beebe v. Robert, 12 id. 413; Waring v. Mason, 18 id. 425 ; Sands v. Taylor, 5 Johns. 395 ; Moses v. Mead, 1 Den. 378.) The ruling of the first four eases cited is criticized in the
1 deduce from the foregoing that the following propositions are authoritatively settled in this State, viz.: That mere words of description in an executory contract of sale do not amount to a warranty, and that for a variance between the article delivered and the article described, the remedy is for breach of the contract of sale and does not survive acceptance of the, goods where the defects are patent; likewise that warranties which the law implies as exceptions to the rule caveat.emptor, do not survive acceptance where the defects are patent; but that in the case of express' warranties, whether the sale be executed or executory, retention of the goods after opportunity for inspection or even after knowledge of the 'defects does not bar an action for breach of warranty. This proposition being established, the ruling in Henry & Co. v. Talcott (supra) to the effect that a sale by sample amounts to an express warranty, even without express words of affirmation, is decisive of this case. The evidence presented a question of fact whether the parties intended a sale by sample; this question was presented to the jury by a charge in which the appellants must be deemed to have acquiesced because they made no requests and took no exceptions.
It follows that the judgment and order should be affirmed, with costs.
Hirsohberg,. P. J., Woodward, Jenks and Eioh, JJ., concurred.
Judgment and order affirmed, with costs.