106 N.Y.S. 6 | N.Y. App. Div. | 1907
Lead Opinion
In 1902 the plaintiff made a contract with the defendant by which the defendant’s corporation agreed to furnish to the plaintiff a cemetery monument consisting of a Latin cross resting upon a Calvary of three steps “ to be executed in best white Westerly granite as per designs and lúodels seen and approved.” By oral contract between the parties the defendant was to furnish a double headstone according to a certain design and model which was to be of the same quality of granite. The contract price of this work was $1,375, $1,025 for the cross and $350 for the headstone. By the terms of the contract one-half was to be paid when the work was ready for shipment and the balance when the work was set. On December 29, 1902, on being notified that the goods had been shipped, Mr. Tompkins paid one-half of the purchase price of the cross. On or about January 26, 1903, the work was set in the cemetery at Elmira and demand was made for the balance remaining unpaid upon the contracts. Upon January thirty-first the plaintiff wrote to the defendant that he would comply with the wishes of the defendant as soon as he could find time to inspect the work which would be within a day or two. Upon April 1, 1903, the plaintiff sent his check for the balance due under both contracts. Upon April twenty-ninth the plaintiff wrote to the defendant that he had had information that the granite used was not the best white Westerly granite as provided by the contract but was of an inferior quality
The complaint seems to have been- drawn in a twofold aspect, both for damages for breach of the contract and for a breach of warranty. While the cause of action' for the breach of warranty was perhaps more dominantly in themhid' of the pleader, névertheless there are numerous allegations in the complaint which state in explicit terms a cause of action for a breach of the contract.. In ■the 8th paragraph the plaintiff has alleged to have suffered special damages from the breach of said warranty and contract. The learned trial judge submitted tlié case to the. jury as though it were a case for a breach of the contract, although in .answer to a request to charge he inadvertently stated that he had charged as for a breach of warranty. Under the charge of the court, however, the jury found. that the contract was .not performed by the defendant in accordance with - its terms-; - that, the property was not accepted,- and was rejected within a reasonable time! after the plaintiff had had opportunity to examine the • same, and' has found the damage suffered • as the value of the monument and headstone contracted for, if the same has been delivered, less the present sale value of the .monument-and'headstone-furnished.
Upon a motion for á -new trial; the trial judged granted the. same and in the order specified’ that the. same was granted as matter of -law and "not in the exercise of discretion. - In his opinion accompanying such order he seems' to construe the complaint as a complaint upon a rescinded contract, and seems to be of the opinion that, plaintiff had only two remedies-r-an action upon a warranty or as upon a., rescinded contract. - He then states that in either, action tlie wrong measure of damages was allowed. He further specifies that errors were committed in receiving. certain letters sent by plaintiff to the defendant after the contract was made as sélf-serving declarations.
We cannot agree with the.-learned trial judge, that this is an,, action upon a rescinded contract in any event. While.there are
It is strongly urged, however, that there has been in this case an acceptance which precludes the plaintiff from claiming that the contract has not been fulfilled. This offer to return was not made until nearly three months after the monument was set. If tlie failure to perform the contract had been ascertainable by ordinary inspection this time might well be deemed to be beyond a reasonable time that the law allows for an inspection and rejection. The quality of granite, however, is something of which the plaintiff had no knowledge whatever. This fact was presumably known to the defendant. The difference between the best Westerly granite and the Troy white granite, of which the monument and headstone were actually made, could only be ascertained by an expert who- had dealt in such articles, and even by an expert it was difficult of ascertainment by inspection. One of the expert, witnesses upon the stand was. unable' to distinguish between samples of Troy white and Westerly granite. It would seem that the plaintiff might, without penalty, assume that the defendant had furnished the granite which he had contracted to furnish. Plaintiff’s failure within the three months to call in an-expert to say whether he had this specific granite contracted, -for should not, in our judgment, forfeit to him' the right to reject the same and demand the performance of the contract made. The difference in the quality of the granite would be in the nature of a concealed defect a failure to ascertain which- at first inspection does not preclude the party, after ascertaining the fact,, from rejecting the property as not in fulfillment of the contract made. Immediately upon ascertaining that the monument was not of the quality of granite contracted for the plaintiff notified the defendant that he rejected the same. The jury have found, that he did so within a reasonable time; and this finding of fact, considering the difficulty in ascertaining wherein the contract' was improperly performed, we cannot say is against the weight of evidence. In Pierson v. Crooks (115 N. Y. 539) the rule is stated in the head note as follows: “ The vendee has, however, a reasonable time for examination, and what' is a reasonable time is generally a question of fact to be determined
This statement of the principle of law governing the right of rejection will not be challenged by the defendant’s attorney. His contention, however, is first that the time before rejection was. beyond a reasonable time in which the plaintiff should have rejected the monument. Of this, however, we are of opinion that the jury was justified in deciding otherwise. The defendant further contends, however, that when the monument was delivered the plaintiff asked time to inspect the same and had two months’ time before the final payment was made. This the defendant contends constitutes an acceptance which should preclude him thereafter from rejecting the monument delivered. The rule is stated in Pierson v. Crooks (supra) as follows: “ The purchaser of goods under an executory contract where payment and acceptance are by the contract concurrent and dependent obligations -cannot, in the absence of fraud or deceit on the part of' the vendor, on delivery of the goods pay the purchase money and subsequently rescind the contract and reject the goods for defects ascertainable on examination.” To this contention it would seem that the plaintiff might make two answers, first, that payment and acceptance are not by this contract made concurrent obligations. The payment was to be made when the monument was set up. oBy reason of the nature of" the defect and the difficulty of its ascertainment it is clear that acceptance was not, as matter of law, required to be made during the two months in which payment was delayed. Plaintiff was in default under his
In the opinion of the learned trial judge upon the granting of the new trial, he also states as a ground thereof the reception- of certain letters of the plaintiff to the defendant after the making of the contract. Assuming, however, that these letters were incompetent evidence, if properly objected to they were not objected to as self-serving declarations, and, moreover, they are only declarations of facts which are substantially admitted upon the trial of this action. Ho question is made that this granite of which this monument and this headstone were made was Troy white. While it is claimed that some of these other granites sometimes went by the name of Westerly granite,, the evidence is very far from sustaining such a claim; and even if it weredrue, there is'no evidence that the Troy white granite is the best Westerly granije. The fact appears that the granite from Westerly, B. I., is harder and more costly than the .Troy white. The action stands, therefore, with .the contract almost confessedly unfulfilled. The monument and headstone have
If we are right in these views, it is unnecessary to consider, whether there was, in fact, a warranty in this case, and as to what would be the proper measure of damages in case of a breach of warranty. The question was so submitted to the jury that they have found all the facts necessary to sustain a verdict as in an action upon a breach of the contract. We think, therefore, that the order granting a new trial should be .reversed, with costs, and the motion, denied, with costs.
All concurred,' except Cochrane, J., dissenting in opinion.
Dissenting Opinion
(dissenting):
The written contract for the monument provided “ no payments in advance. One-half when the work is .ready for shipment. Balance when the work is set.” The contract for the headstone was oral, and nothing was said as to the time of payment. As - to both contracts, therefore, except as to the first payment on account of the monument, payment was to be made on completion of the work. It would seem that under such contracts there is implied a reasonable opportunity when practicable for the purchaser to assure himself before payment that the work corresponds to the - contract. While the plaintiff personally was unfamiliar with the different kinds of granite, and was unable to distinguish between Westerly granite and Troy granite, the difference, as appears from the record, is clearly apparent and discernible to one familiar with granites. The defect complained of was not a latent, concealed defect in the sense that it could not be ascertained save by subsequent, use or wear. In January, 1903, the material was received on plaintiff’s cemetery lot. January twenty-sixth defendant wrote to plaintiff that the work was completed, and asking for a remittance of the
Plaintiff took his time to make ah inspection and to satisfy himself that the work was satisfactory. Surely it cannot be said that he needed even a small portion of the' intervening time between the receipt of the granite and.his payment therefor. ■ It seems to have required but a few minutes of casual and superficial inspection by the granite dealers whom Tie called as witnesses to determine beyond the peradventnre of a doubt' the exact source and quality of the granite.' Defendant complied with the plaintiff’s expressed wish for an opportunity of inspection. ■ He had the opportunity and if he failed to avail himself thereof it was because- he was satisfied to forego the privilege or right and accept and pay for the work without. availing himself thereof. _
In Pierson v. Crooks (115 N. Y. 552) it isi said: “ The purchaser
The learned counsel for the plaintiff seeks to sustain the verdict on the theory of a breach of warranty clearly alleged in the complaint. On such theory an improper measure of damages was adopted as stated by the learned trial justice who for that reason properly granted a new trial..
Order reversed, with costs, and motion denied, with costs.
5 N. Y. 73.— [Rep.
Welsh v. Carter.— [Rep.
Swett v. Colgate, 20 Johns. 196.— [Rep,