author: Mullin, J. Denio, Ch. J.

text:
    Harvey M. Marcly and others, Executors, &c., v. John Shults and others. Executors, &c.
    It is competent to read an entry made by a witness, of any fact material to the issue, if made at or near the time when the fact occurred, and he can swear that it was made correctly.
    Or the witness may use an entry made by himself or by any other person, or a copy of an entry, if on reading it he can testify that'he then recollects the fact to which the entry relates.
    A witness testified that he had measured the flush boards on a dam in 1852 or 1853, and made a memorandum of the width on a piece of paper', and had a correct copy of it then in court. That he first made the memorandum on paper, then marked it on the shop or wash-house, and made the copy then in his -possession from the marks made on the building. The plaintiff’s counsel then told the witness to look at the paper, and state the width of the flush boards, ffhe witness had previously testified to the width of the flush boards, from the memorandum, without objection. Held, that it was incompetent for the witness to read tlie memorandum, it not being an original entry, and hence not evidence of its own contents ; nor was it used or offered to be used to refresh the witness’s recollection.
    In an action to recover damages occasioned by overflowing the plaintiff’s land with water by raising the height of a dam, the defendant claimed a right thus-to raise the water, by prescription. The judge was asked to charge'the jury that if the defendant had, during the twenty years previous, used flush boards on his dam only during low water, he could not raise the dam to the height of the flush boards, so as to keep the water up to the height of such boards during the whole year. Held, that-the plaintiff was entitled to the benefit of this instruction.

      Held, also, that it was not erroneous to charge that the plaintiff's right to maintain the action depended on the facts whether his land and promises had been overflowed, at any season of the year, by the defendant's increasing the height of the water in constructing or repairing the dam beyond the usual and ordinary height of the water for twenty years previously to such construction or repair.
    After a jury has found-that the plaintiff is not entitled to recover anything,, which is equivalent to a finding that the defendant was not guilty of the injury complained of, the case ought not to be sent back for a new trial, on account of. an incorrect ruling upon the question of damages.
    Peter Hynds, the plaintiff’s testator, death and for many-years prior thereto, at the time of his was the owner in fee of certain lands situate in the town of Sharon, in the county of Schoharie, lying on both sides of a small stream called West creek. In 1849 the defendant’s testator, Jedediah Miller, became owner of a grist mill on the easterly side of said stream, which was supplied with water from a dam across said creek, the eastern end of which abutted on his own lands and the westerly end on the lands of the plaintiff’s testator. . There had been a dam across said stream, at that place, since about the year 1800, and it had been repaired from time to time, and flush boards had been put upon it in order to keep up a supply of water for the" said grist mill and other mills supplied with water from said dam. It was alleged in the complaint, and evidence was given on the trial tending to prove, that between the autumns of 1850 and of 1853, Miller rebuilt the grist mill and repaired the dam, raising the top of it higher by permanent fixtures than the top of the temporary flush boards theretofore used; and that such flush boards had only been used during low water in the summer, and in high water were either swept away or removed by those operating the mill; that by reason of these permanent alterations and repairs the waters of said stream were raised so as to flow more of the lands of Hynds than had been flowed before such erections were made. The cellar of one of the dwelling houses had been flowed and other injuries done to the property of said testator, for which he claimed to recover damages.
    Miller, in his answer, alleged, and on the trial gave evidence tending to prove that the flush boards had been constantly Used on said dam for more than twenty years before-said dam was repaired in 1853, and that the dam after the repairs made in 1853 was no higher than the old dam and flush boards, and that the water of said stream was not raised any higher than it had been raised by the dam before it was repaired; and, consequently, that no more of the lands of the plaintiffs had been flowed since 1853 than before.

      The judge charged the jury that the defendants were entitled to maintain the dam in question at the same height it had been for twenty years and upwards preceding the time of the alleged injuries. If they believed from the evidence that the defendants- at the time the dam was repaired in 1853» or at any other time, had increased the height of the dam in a manner to raise the water and flow it back upon the land of the plaintiff to a greater height than it had been for twenty years preceding that time, then the defendants were liable for the damages sustained by the plaintiff in consequence thereof. On the other hand, if the jury believed from the evidence that the dam had not been raised so as to increase the usual and ordinary height of the water, then the plaintiff was not entitled to recover. That the defendants were not confined to. any specified material, or to any particular mode of construction, or keeping the dam in repair; and whether the water was detained by a structure more or less permanent, or by. the use of flush boards, could make no difference, or entitle the plaintiff to recover, so long as the water was not raised higher than it had been.
    The defendants’ counsel then requested the court to charge, that the defendants got no right to use the flush boards in any other manner than they had been used for twenty years prior to the commencement of the suit. If the flush boards were for this length of time used by the owner of the milk to retain the water- at seasons of low water, and not at other seasons, then the defendants had no right to increase the height of the permanent superstructure of the dam, and substitute that for a portion of the width of the flush boards, and the defendants are liable for any injury the plaintiff has sustained by means of such increase of height of the permanent superstructure. The court declined so to charge, but charged that, so far as the plaintiff’s right to maintain the action was concerned, it depended upon the facts whether his land and premises had been overflowed at any season of the year, by the defendants increasing the height of the water in constructing or repairing the dam, beyond the usual and ordinary height of the water for twenty years previously. That the plaintiff could not complain of the mode of repairing the dam, provided the effect had not been to increase the height of the water and thereby overflow some parts of .the plaintiff’s land or premises not before overflowed. To the refusal to charge as requested, and to the charge made, the plaintiff’s counsel excepted.
    The plaintiff’s counsel also requested the court to charge that the owners of the dam acquired no right, by the use of temporary flush boards, to retain the water during periods of the year when there was low water, to substitute for any portion of such flush boards a permanent superstructure. The court refused to charge differently from what he had already charged, and the plaintiff’s counsel excepted. The jury found a verdict for the defendant. •There was a motion for a new trial, made by the plaintiff on a case and exceptions, which was ordered to be heard, in the first instance, at the general term. And the motion was then heard and denied; and from that order an appeal was taken to this court.
    On the trial the plaintiff’s counsel excepted to sundry rulings of the court, in admitting and rejecting evidence, which are referred to in the following opinions.

      H. Smith, for the appellant.

      L. Tremain, for the respondent.
   Mullin, J.

The great question in this case was whether the waters of West creek were raised by means of the dam which supplies the defendants’ mill, to- a greater height since 1853, when it was repaired by the defendant, than for the twenty years preceding that time? If they were so raised, then more of the plaintiff’s land was flowed, and he was entitled to recover in the action. There was a conflict of evidence in regard to almost every material fact testified to by the plaintiff’s witnesses. A verdict in such a case must be held by this court to be conclusive on the questions thus litigated.

The judge who tried the cause, and the general' term that reviewed the proceedings on the trial, had the power to grant a new trial upon the facts. This court has no such authority. Fór all the purposes of this appeal, the questions of fact passed upon by the jury are not • open to discussion or review. We must assume, therefore, that the waters of the West creek were not raised by means of the dam any higher since 1853, than they had been for the twenty years next preceding that date. It only remains to inquire whether any error was committed by the learned judge who tried the cause, in his ruling and on the trial, or in his charge to the jury, to the prejudice of the rights of the plaintiff.

On the trial, Peter Hynds was examined as a witness on the part of the plaintiff, and testified, amongst other things, that he had measured the-flush boards on the dam in 1852 or 1853 and made a memorandum of the width, on a piece of paper, and had a correct copy of it then in court. He first made the memorandum on paper—then marked it on the shop or wash-house, and made the copy then in his possession from-the marks made on the shop or wash-house. The plaintiff’s counsel then told the witness to look at the paper and state the width of the flush boards. This was objected to by the defendants’ counsel, and the objection was sustained, and the plaintiff’s counsel excepted. Before the witness was called on to state the contents of that memorandum, he had testified to the width of the flush boards, from the memorandum, without objection. There was, therefore, no necessity or propriety in requiring him to repeat the statement, even if there was no question as to its competency. But it was incompetent for him to read the memorandum, for several reasons: 1st. It was not the original entry, and could not therefore be used as evidence of the fact—and it was' not intimated by the witness that he did not remember the fact without reference to the memorandum. 2d. The fact of malting the memorandum was wholly immaterial, unless it could be used for one.or the other of the purposes above specified.

It is competent to read an entry, made by a witness, of any fact material to the issue, if made at or near the time when the fact occurred, and he can swear that it was made correctly (Guy v Mead, 22 N. Y. 462); or he may use an entry made by himself or by any other person, or a copy of an entry, if, on reading it, he can testify that he then recollects the fact to which the entry relates. (1 Cowen & Hill’s Notes, 756 to 759.) The entry to which the attention of the witness was called on the trial, was not an original entry—hence, not evidence of its own contents—nor was it used, or offered to be used, to refresh the witness’s recollectian. The question was properly overruled.

Several questions were put to the witnesses, calling for their opinion as to the amount of damages sustained by the plaintiff, which questions were objected to, and the objections sustained by the court. These rulings are now insisted upon as erroneous, and relied upon to reverse the judgment.

If the verdict was rendered on the ground that the water was not raised by the dam, the question of damages was wholly immaterial. The jury never reached that question, and hence the ruling in regard to the damages was utterly unimportant. But the plaintiff’s counsel insists that the verdict may have been rendered because there was no evidence of damages in the case, and hence the exclusion of that evidence was prejudicial to him. The suggestion is not borne out by the facts. If the plaintiff’s witnesses were believed, there was abundant evidence to authorize a verdict of over $100. But if there had been no proof of special damage, the plaintiff would (his witnesses being believed) have been entitled to at least nominal damages. And had a verdict been found in favor of the plaintiff for any sum, it would then have been necessary to examine the rulings on the trial in relation to the damages, in order to ascertain whether material and competent evidence had not been rejected to the plaintiff's prejudice. But in view of the finding of the jury on the principal point in the case, an examination of these questions is wholly unnecessary.

We now come to the charge. The plaintiff's counsel does not complain of the instructions given to the jury' upon the principal questions in the cause, bqt it is the refusal to charge as requested that constitutes the main ground of complaint.

The first request was to charge that if the defendant had for the twenty years preceding 1853, used flush boards only during low water, they could not raise the dam to the height of the flush boards, so as to keep the water up to the height of such boards during the whole year.

The plaintiff was entitled to the benefit of this instruction. " The learned judge had instructed the jury that the defendants had the right to repair the dam in such manner and with such materials as. they pleased, provided the water was not raised higher than it had been during the preceding twenty years. But if, during a part of the year only, flush boards -were used, and ifl repairing the dam it was raised permanently to such a height that during the entire year the water was raised to the height of the flush boards in addition to its height when those boards were not used, such increased height was not authorized by the prescription, and was injurious to the plaintiff.

If the right acquired was to use flush boards a few months of the year only, their use, or the use of any equivalent for them, was not justified by the prescription, and parties injured were entitled to damages. The principle referred to is thus illustrated in Cowel v. Thayer (5 Metcalf, 257). When, according to the custom of the country, a mill has been kept up in the winter only, and the mill owner has uniformly been, accustomed to draw off the water sufficiently early in the spring to allow the growth of a crop of grass, and to continue it down until the hay is cut and got in, it must be regarded as establishing a right to a winter privilege only, and not a constant privilege, and then flowing the land through the year must be considered, a new. use, and not within the mill owner’s prescriptive right. (See also Angel on Water-courses, § 224.)

Although the learned judge refused to chargeas requested, he did charge “that the plaintiff’s right to maintain the action depended on the facts whether his land and premises had been overflowed at any season of the year by the defendant’s increasing the height of the water in constructing or repairing the mill dam beyond the usual and ordinary height of the water for twenty years previously to such construction or repair.” This was more favorable to the plaintiff than the instructions would have been if given as requested. The jury were told, in substancé, that if at any time in the year the water was raised by means of the dam as repaired to a greater height than the ordinary and usual height during the twenty years preceding the repairs, the plaintiff was entitled to recover. If under this charge the jury had fouqd that the water had been raided during the summer months higher than had been usual, whether caused by'the increased height of the dam, or by making it tighter, the plaintiff was entitled to recover. To such a charge the defendant might, with some show of propriety, except, but not the plaintiff. The judge, instead of distracting the attention of the jury by multiplying exceptions and qualifications to the general principles which he had previously laid down for their guidance, gave them a. plain, clear, concise rule by which to be guided in determining the question of liability; and that was, whether at any time of the year the water had been raised by means of the dam when repaired to a greater height than had been usual during the preceding twenty years. This rule could work no injury to the plaintiff, whatever its effect might be on the rights of the defendant.

The plaintiff’s counsel requested the court to charge, that the defendants acquired no right by the use of temporary flush boards.to retain the water during periods of the year when there was low water, to substitute for any portion of such flush boards a permanent superstructure. The court refused so to instruct the jury, and the plaintiff’s counsel excepted.

. I know of no reason why an owner of a dam may not raise the water of a stream by the use of permanent additions to his dam to the same height it was raised by temporary ones.. Those whose rights are affected cannot complain, unless the water is raised higher by the permanent structure than by the temporary one. The plaintiff’s counsel probably intended to call on the court to charge, that -the right acquired by the defendants to raise the wa$er during a part of the year by temporary erections on the dam, did not justify the defendants in permanently raising the dam to the sanie height, and thus raise the water higher during the entire year. Thus stated, the proposition is substantially a repetition of the preceding one; and the court was right in refusing to repeat it. ,

I think the case was properly disposed of at the circuit, and that the judgment should be affirmed. .

Denio, Ch. J.

This action was brought to recover damages for overflowing the plaintiff’s land by means of a mill-dam of the defendant, across the West creek, in Schoharie county. The defendant justified under a prescription evidenced by an alleged adverse user for more than twenty years. The verdict was for the defendant. The questions presented on - this appeal arise upon certain exceptions to rulings, upon objections to evidence, andto refusals to charge in the manner requested by the defendant. The original plaintiff was examined as a witness on his own behalf, and testified to the width of certain flush boards which the defendant, in 1852 or 1853, had fixed upon the top of the dam. He said these boards were from sixteen to nineteen inches wide, and he stated that he had, at some time, measured them with a square and put down the measurement on paper with a pencil, and at some other time marked the width on a shop or wash-house; and that, at a former trial of the cause, he had taken off these marks on to paper, which paper, it appeared, he had with him. His counsel asked him to look at the paper and state the width of the flush boards. This was objected to, and excluded by the judge, and the plaintiff’s counsel excepted. I understand the question to require the witness- to testify what statement of measurement was put down on the paper. In other words, it was an offer to read the memorandum as evidence. That, I think, was not competent. To entitle such a memorandum to be read, it müst be the original, made at the time to which the transaction relates. (Halsey v. Sinsebaugh, 15 N. Y. 485.) Here it had been twice transferred, either accurately or inaccurately. There is no pretense that it was evidence _per se. It was not, moreover, a question of allowing the witness to refresh his memory by the inspection of his copy of the memorandum. It was claimed by the plaintiff that the cellar of a dwelling-house owned' by him had been injured, or its use impaired, by the alleged raising of the dam. The plaintiff’s counsel offered to ask the plaintiff, while under examination as a witness, what the value of the use ' of the house was, per annum, before the raising of the dam. I think this was objectionable, as calling for the opinion of the witness. It is very true that evidence of the value of an article of property, where such value is in issue, is admissible. But here the value of the rent of the house was not important, except arguiáentatively. We may suppose, the question was to have been followed up by inquiring the value of the rent after raising the dam, and then taking the difference for the amount of the damages. It will not be pretended that a witness could be allowed to state his opinion of the amount of damages. He could describe the character of the overflowing, and its effect, and then it would be for the jury to estimate the damages. If the house had been kept for renting, and something in the nature of a market price of the use could have been proved, it might have been competent. What was actually offered was two opinions upon two different matters, forming together an opinion as to the amount of damages.- But there is another objection which bears equally upon both these exceptions. The jury have found that the plaintiff was not entitled to recover' anything, which is, equivalent to finding that the defendant was not guilty of the injury complained of. After such a finding, the case ought not to be sent back for a new trial on account -of an incorrect ruling upon the question of damages. The result has. demonstrated that such an inquiry was quite immaterial. Another question, as to damages, was excluded. It was an attempt to prove the amount of injury, in the opinion of the witness of whom the inquiry was made; . The onjy peculiarity of the inquiry was that the damage per year was what was asked to be stated. This was plainly incompetent.

The remaining exceptions were taken to refusals to charge as requested. There was a conceded valid prescription to keep up the dam to a certain height. The plaintiff's grievance was that the defendant had, within twenty years, made a permanent addition to the height, in the place of flush boards, which had been used for twenty years, but which would .occasionally be. carried off by floods. The evidence related to the character of that elevation at different times, and also to the relative height of the waters before and after the permanent addition was made. The judge charged, in effect, that if the jury believed from the evidence that the defendant, at the time the permanent addition was put on, or at any other time, had increased the height of the dam in a manner to raise the water and flow it back upon the land of the plaintiff to a greater height than it had been for twenty years preceding that time, the defendants were liable, but if the usual and ordinary height of the water had not been exceeded, the defendants were not liable. The plaintiff requested the jury to be charged that the defendant had no right-to use the flush boards in any other manner than they had been used for twenty years prior to the commencement of the suit. This instruction the judge refused to give, but instructed the jury that it depended upon the effects produced by the two methods of adding to the dam, and not to the mode in which it was done; that the plaintiff could not- complain of the mode of raising the dam, provided the effect had not been to increase the height of water, and thereby overflow some parts of the plaintiff’s land not before overflowed. There was an exception to the refusal and to the charge as given. A similar instruction was again asked for and refused, and the refusal excepted to. But it raises no different point from that just stated. I think that the rule laid down by the judge was the true one, and that the instructions asked for were properly withheld.. (Cowell v. Thayer, 5 Metc. 258.)

The judgment shoqld be affirmed.

All the judges concurring, judgment affirmed.


source: Caselaw Access Project

author: Wright, J. Hogeboom, J.,

license: Public Domain

text:
    Peter R. Reed and others v. Isaac Randall.
    In cases of executory contracts for the sale' and delivery of personal property, the remedy of the vendee, to recover damages on the ground that' ■the article furnished does not correspond'with the contract, does not survive the acceptance of the property by the vendee, after opportunity to aseei'táín the defect; unless notice has been given to the vendor, or the vended offers to return the property.
    The retention of the property, by the purchaser, is an admission on his part that the contract has been performed.
    A vendee is not bound to receive and pay for a thing that he has not agreed to purchase; hut if the article delivered is found, on examination, to he unsound, or not to answer the order given for it, he must immediately return it to the vendor, or give him notice to take it hack, or he will be presumed to have acquiesced in its quality.
    He cannot accept the delivery of the property, under the contract, retain it after having had an opportunity of ascertaining its quality, and recover damages, if it he not of the quality or description called for by the eon tract.
    In September, 1856, the plaintiffs agreed to purchase of the defendant his crop of tobacco, then growing, and to pay therefor at the rate of ten cents per pound, on the delivery thereof well cured and boxed and in good condition, and the defendant agreed to sell and make such delivery in May, 1857, at such place in Syracuse as the plaintiffs should thereafter designate. The plaintiffs subsequently specified a place, where the tobacco was delivered' by the defendant, and was received and accepted by the plaintiffs in execution of the contract, and retained without notifying the defendant of its defects, or returning, or offering to return it, or making any request to him to take it hack. More than a year and a half after such delivery, the plaintiffs brought their action to recover damages, on the ground that the tobacco was in a bad condition when delivered—not having been properly cured, and being wet, sweaty, and rotten. Held, that the action would not lie.

      Held, also, that the stipulation in the contract, in respect to the quality and condition of the tobacco when delivered, did not constitute an express • warranty; and a breach of the contract was not a breach of warranty, but a mere non-compliance with the contract that the defendant had agreed to fulfill, viz: to deliver merchantable tobacco..

      Appeal from a Judgment of the Supreme Court.

    The action was commenced on the 23d September, 1858. The plaintiffs alleged in their complaint that on the 10th September, 1856, at Cicero, in the county of Onondaga, in consideration that the plaintiffs did then and there agree to purchase of the defendant a certain crop of tobacco there growing, being owned and raised by the defendant, and to pay the defendant therefor at the rate of ten cents a pound on the delivery thereof, well cured and boxed, and in good condition, he (the defendant) did then and there agree to, and with the plaintiffs, to sell the said crop of tobacco to" the plaintiffs, and to deliver the same to the plaintiffs, well cured and boxed, and in good condition, at such place in the city of Syracuse as the plaintiffs should thereafter designate, the early part ' of May (then) next; that at the time of making the contract, the .plaintiffs paid to the defendant the sum of $50; and the further sum of $100 on 20th September, 1856; and the further sum of $491.10 on 20th April, 1857; that in April, 1857, the plaintiffs "notified the defendant to deliver the crop of tobacco at the storehouse of James L. Gr'eenman & Co., in Syracuse; and after-wards on the 20th April, 1857, the defendant there delivered the crop of tobacco, which then weighed 6,411 pounds; that although the plaintiffs fulfilled the agreement on their part, and paid to the defendant the sum of $641.10 (being at the rate of ten cents a pound for all of said crop of tobacco), yet the defendant did not perform the agreement on his part, and did not deliver the said crop of tobacco, well cured and libxed, and in good condition; but, on the contrary thereof, a large part of said tobacco was in a bad condition at the time of the delivery thereof, and had not been properly cured, but was wet and sweaty and rotten— which was unknown to the plaintiffs when they received the same—and said tobacco greatly shrunk, and was otherwise injured and in bad condition, by reason whereof the value was greatly deteriorated and the quantity diminished, and the plaintiffs were put to great expense and trouble in overhauling, separating, and repacking the same, and all to the great loss .and damage of the plaintiffs; wherefore the plaintiffs asked judgment against the defendant for $300.
    The cause came on for trial before Justice Allen, and a jury, at a circuit court, held in the county of Onondaga, on 8th November, 1858. The case was stated to the "court and jury by the counsel for the plaintiffs, substantially as was set forth in the plaintiffs’ complaint. The defendant’s counsel objected to the sufficiency of the complaint to maintain the action, for the reason that it did not appear that the plaintiffs, on discovering the condition of the tobacco, had offered to return it, or notified the defendant of its condition, and he moved for a non-suit on that account, and because the plaintiffs’ counsel did not state in the opening that the- plaintiffs had notified the defendant of the defects of the tobacco, or had offered to return it.
    The plaintiffs’ counsel insisted that it was not necessary to shoAV such notification, or to return or offer to return the tobacco, to entitle the plaintiffs to their action for the breach of contract as claimed in their, complaint; and thereupon also admitted that they had no evidence that they had returned or had offered to return to the defendant the tobacco, or had notified him of its condition, with a request to him to take it back after they discovered its condition. Whereupon tñe court granted a non-suit on the objection taken by the defendant’s counsel, to. which ruling and decision the plaintiffs’ counsel excepted. Judgment dismissing the complaint being entered, with costs against the plaintiffs, an appeal was brought therefrom to the general term of the supreme court, where the same Ayas affirmed. The plaintiffs then appealed to this court.
   Wright, J.

The action was for the breach of a contract to sell and' deliver a crop of tobacco growing on the land of the defendant. ■ In September, 1856, the parties contracted for the sale of the crop. The plaintiffs agreed to pay ten cents per pound on the delivery thereof, well cured and boxed and in good condition, and the defendant agreed to sell and make such delivery, in the early part of May, 1857, at such place in the city of Syracuse as the plaintiffs should thereafter designate. The contract, therefore, was executory. In the early part of April, 1857, the plaintiffs notified the defendant to deliver the tobacco at the storehouse of Greenman & Co., in Syracuse. On the 20th April, 1857, the defendant delivered the same at the place designated, and it was received and accepted by the plaintiffs. The breach alleged relates to the quality and condition of the tobacco at the time it was delivered,- and the contract of sale. executed. It is averred to have been in bad condition, not having been properly cured, and being wet, sweaty and rotten. The tobacco was accepted in execution of the contract, and retained without notifying the defendant of its defects, after discovering them, or returning, or offering to return it, or making any request to take it back. The plaintiffs converted the property, and some seventeen* months after delivery and acceptance bring their action to recover damages resulting from its being improperly cured and being in bad condition when delivered. The question is, whether the action .is maintainable. The learned judge, at the trial, thought it was not, and non-.suited the plaintiffs; and the supreme court, on appeal, concurred with him in opinion.

This conclusion, I think, was right. It is not claimed to be otherwise, unless there was a warranty that the tobacco, when delivered, should be well cured and in good condition. But the stipulation in respect to the quality and condition of the article, when delivered, constituted no express warranty. The contract was executory, for the sale of a growing crop of tobacco, to be delivered the spring following, well cured and in good condition. The article bargained for, and to be furnished in the future, was a merchantable crop of tobacco. This was what the vendor agreed to sell and the vendee to purchase. It was the sale of a particular thing by its proper description» merely; and the descriptive words used for defining the thing agreed to be sold were of the substance of the con. "tract, not collateral to the main object of it. The breach alleged was that the tobacco was not, when delivered, well cured and in good .condition, but on the contrary was in bad condition and was wet, sweaty and rotten; that is, it was an inferior, unmerchantable commodity, In an executory contract for the sale of personal property, the law implies that the article, when furnished, shall be of merchantable. quality. (Hargous v. Stone 1 Selden, 73, and cases cited.) And if "the tobacco, when delivered, was not well cured and in good condition, but was wet, sweaty and rotten, it was not merchantable. (Hamilton v. Ganyard, 34 Barbour, 204.) In legal effect, therefore, the agreement as to which the breach was "alleged was' the same as the law would imply, in the absence of words of express contract. It would be established upon proof of a contract to sell and deliver" the tobacco at a future time, and without proof of express words between the parties, and if express" words were used between the parties, yet superadding to the terms of a contract, words expressing an obligation which the law implies, does not change the nature or extent of the obligation or the remedy upon it. (Sprague v. Blake, 20 Wend. 64.)

A warranty, then, "cannot be predicated upon the contract alleged in the complaint; and the rules of law by which the rights of the parties in respect to warranties are regulated, are inapplicable. A breach of the contract was not a breach of warranty, but a mere nomcompliance with the contract that the defendant had agreed to fulfill.

In cases of executory contracts for the sale and delivery of personal property, the remedy of the vendee to recover damages, on the ground that the article furnished does not correspond with the contract, does not survive the acceptance of the property by the vendee after opportunity to ascertain the defect, unless notice has been given to the vendor, or the vendee offers to return the property. The retention of the property by the vendee is an assent, on his part, that the contract has been performed. The delivery of property corresponding with the contract is a condition precedent to the vesting of the title in the. vendee. ' The parties understand that the vendee is not bound to accepty the property tendered, except upon this condition. This the vendee is to determine upon the receipt of the property There is no intention that a defective article should be accepted, and that the vendee should rely upon the covenant for his indemnity. The latter is not bound to, receive and pay for a thing that he has not agreed to purchase; but if the thing purchased is found on examination to be unsound, or not to answer the order given for it, he must immediately 1‘eturn it to the vendor, or give him notice to take it back, and thereby rescind the contract, or he will be presumed to have acquiesced, in its quality. He cannot accept the delivery' of the property under the contract, ‘retain it after an opportunity of ascertaining its quality, and recover damages, if it be not of the quality or description called for by such contract. It is understood of every contract for the future sale and delivery of an article of merchandize, even without express terms, that it shall be of merchantable quality; and I am not aware that it has ever been doubted, that upon the delivery of property pursuant to such a contract, the vendee, by retaining the property without notice to the vendor, waives all remedy upon the contract for any breach of an obligation implied by law.

The principle that when the contract of sale is executory, the remedy of the purchaser to recover damages on the ground that the article furnished does not correspond with the contract, will not survive an acceptance and retention of the property, after opportunity to ascertain the defect, without notifying the vendor, is well supported by authority. In Fisher v. Samuda (1 Camp. R. 190), the declaration stated that in consideration that the plaintiff had undertaken to buy of the .defendants a certain quantity of beer, uo be shipped to Gibraltar, they undertook to furnish and deliver to him good and sufficient beer for that purpose. The breach alleged was.that the beer furnished and delivered was bad, and unfit to be shipped to Gibraltar, &c. The proof was that the beer was delivered in May to be shipped to'Gibraltar the following autumn, and in July it was discovered to be of bad quality, and unfit for the purpose intended. The earliest notice given to the defendants was in December. Lord Ellenborougii held that, “ under these circumstances (retaining the beer so long without notice), the plaintiff must be presumed to have assented to its being of good quality, and to have acquiesced in the due performance of the contract on the part of the defendants.” In Grimaldi v. White (4 Esp. R. 95), the defendant contracted with the plaintiff for pictures at certain prices, pursuant to specimens exhibited. The pictures had been sent to the defendants, who, at the time of delivery, had objected to the execution as being inferior to the specimens exhibited; but he did not return them. In assumpsit to recover the contract price of the paintings, the defence intended to be relied on was the inferiority of the execution, and, of course, of value; and the defendant was proceeding to call witnesses to ascertain what was the real value, but, on objection, the evidence was excluded. Lawrence, J., said: “ The defendant relies on the circumstances that they (the pictures) are of an execution very inferior to the specimens exhibited, and which the plaintiff undertook to paint conformable thereto. When an artist exhibits specimens of his art and skill as a painter, and affixes a certain price to them, if a person is induced to order a picture from an approbation of such specimens, and the execution of it, when delivered, is inferior to the specimen exhibited, he has a right to refuse to receive it, or return it, as not being ■ conformable to that performance which the painter undertook to execute; but if he means to avail himself of that objection, he must return the picture—he must rescind the contract totally. Having received it under a specific contract, he must either abide by it or rescind it in toto, by returning the thing sold; but he cannot keep the article received under such a specific contract, and for a certain price, and pay for it at a less price than that charged by the contract.” In Milnor v. Tucker (1 Car. & Payne, 15), a person contracted to supply a chandelier sufficient to light a cer- • tain room. The purchaser kept the chandelier six months, and then returned it. He was held liable to pay for it, although it was not according to the contract. In Sprague v. Blake (20 Wend. 61), the action was assumpsit for wheat sold and delivered. The proof was that the defendant had agreed to purchase the whole of a crop of wheat belonging to the plaintiff, estimated to amount to between three hun'dred and four hundred bushels, to be delivered at a place on Seneca lake, for which the defendant agreed to pay one ■dollar per bushel. By the terms of the agreement- the wheat was to be merchantable. Subsequently a part of "the wheat was delivered at the place specified, and receive^ by the defendant; and an arrangement was then made between the parties that the residue of the crop should be delivered at the storehouse of one Morgan, in Penn Yan. In pursuance of this arrangement, the plaintiff delivered at Morgan’s storehouse about twenty-eight bushels of the wheat, and for the delivery óf this parcel the -action was brought, the defendant refusing to pay for the same. It ■ was proved that Morgan was the agent -.of the defendant in receiving wheat, and that the wheat in question, together with other wheat, was taken away from his storehouse by the defendant’s boatmen. The defendant attempted to set up the inferior quality of the wheat, and offered to prove its real value, with the view of recouping damages for a breach of the contract, but the, evidence was rejected. The court charged the jury that if they were satisfied the wheat was received by the defendant or his agent, they would find for the full contract price. The plaintiff had a verdict for the whole contract price, and on error to the supreme court the judgment was affirmed. The supreme court cite approvingly the case of Fisher v. Samuda (supra), and lay down the doctrine that although by the terms of a contract an article agreed to be delivered is to be of a merchantable quality, still if an inferior article be delivered and accepted, the purchaser, when called upon for payment, is not entitled to a reduction from the contract price on the ground of the inferior quality of the article. He must refuse to accept it, or if its inferiority be subsequently discovered he must return it or require the purchaser to take it back In Hargous v. Stone (1 Selden, 73), it was held that if the contract was an executory one, to furnish' goods of a par ticular description, the purchaser was bound to examine them when received and opened, and to have returned them if the quality was not such as was promised. . Hoi having done so, he waived all objections on account of ' defects of quality. In Shields v. Pettee (2 Sand. S. C. R. 262), it was held that on a sale of goods, if the buyer, on-receiving a part of the quantity sold, finds they are not of the kind or quality which his contract entitles him to, he is not at liberty to retain such part, and claim damages for the non-delivery of the entire quantity. Nor can he require the delivery of the residue, retaining a claim, for .damages. He must either receive the article as it is, or he must return the portion delivered, and then enforce 'his claim for damages. He can recover no .damages if he refuse to return the part delivered. (See also Howard v. Hoey, 23 Wend. 350; Hopkins v. Appleby, 1 Stark. 477; 2 Kent’s Com. 480; Parsons on Contracts, 475.)

The case of Hopkins v. Appleby (1 Starkie, 477), was this: The defendants, soapmakers in Bath, ordered of the plaintiffs in London .eight sarrands of Spanish barilla and four sarrands of salt barilla, which the plaintiffs warranted to be of the best quality. The order was given in October, and the barilla reached its destination in December. The defendants proceeded to use it, when it was discovered that'the Spanish barilla was of inferior quality. They con-. tinued, however, to use it without complaint, and made no remonstrance until it had been wholly consumed. ’ In assumpsit to recover the price, the defence was interposed that the quality was not as contracted for, and that the defendants had paid into court as much as the barilla was worth. The plaintiffs had a verdict. Lord Ellbnborottgh said: “When an objection is made to an article of sale, common justice and honesty require that it should be returned at the earliest period, and before the commodity has been so changed as to render it impossible to ascertain, by proper tests, whether it is of the quality contracted for. * * * It was incumbent on the defendants to give the seller an opportunity of establishing his case by the opinion of intelligent men on the subject, and not throw a veil of obscurity over it, and debar the party from the fair means of ascertaining the quality. *■ * * The party who extinguishes the light, and precludes the other party from ascertaining the truth, ought to bear the loss.” These considerations apply with great force in the present case. The tobacco was delivered to the plaintiffs and accepted by them in April, 1857, and the first notice to the vendor of any defect was when the suit was commenced, in September, 1858. The plaintiffs deprived the defendant of all opportunity to ascertain or establish the actual condition of the tobacco at the time of delivery. Tobacco is an article ordinarily the subject of immediate sale and consumption, and no opportunity was given to the vendor to test the claim of the plaintiffs by examination. The defendant had a right to suppose, from the silence of the plaintiffs, that they assented to the quality of the tobacco, and that it' corresponded with the contract. The judgment of the supreme court should be affirmed.

Hogeboom, J.,

(dissenting). If this is to be regarded as an executed contract of sale, without sample or warranty, then the acceptance of the goods purchased—without objection to their quality or condition at the time of their delivery, or within such reasonable time afterwards as was sufficient to examine the same and ascertain their condition—would be regarded, I think, according to the weight of authority, as an assent on the part of the purchaser to the merchantable character of the goods, and a waiver of defects therein.

In such cases the title passes, and the purchaser is presumed to be satisfied with the goods because he makes no objection to them aftér opportunity for examination.

If, in the case of an executed contract, there be an express warranty or undertaking accompanying the sale and delivery of the goods, that they are of a certain quality or condition, this agreement is obligatory upon the parties,., and is not merged in the act of delivery and acceptance, because it is simultaneous with it and independent of it; and the very object of it is to preclude the necessity of an instant examination, and to preserve to the purchaser his right to insist upon the performance of the agreement, and to compensation for its non-performance. (Muller v. Eno, 14 N. Y. 597; Waring v. Mason, 18 Wend. 425.)

The parties agree that this is not an executed contract. Although a portion of the price was paid at the time, and the crop was then growing and susceptible of sale, yet there were additional things to be done on both sides before the title would become perfect or the delivery complete. The residue of the purchase money was to be paid on the part of the vendee; and the "tobacco was to.be harvested, properly cured and boxed, and delivered, on the part of the vendor. These were acts to be done on the part of the vendor, absolutely within his power to perform—acts to be done in the.future—of the performance or non-performance of-jshich he would have perfect knowledge, but of which the purchaser would be wholly or comparatively ignorant, even at the time of delivery, and in regard to which it was both natural and reasonable that he should desire to protect himself by the express cove nant of the vendor.

The important question is, was there a warranty or express undertaking, on the part of the vendor, that these acts should be performed by him, and that the tobacco should be of a certain quality, and in a certain condition, at the future period of delivery; and was this contract broken or. its execution waived. . The averments in the complaint are, in effect, that there was such express warranty and undertaking, and such was the offer of proof. We cannot, therefore, assume that the evidence would have come short of it.

It is said, indeed, that the express warranty thus made is no more in effect than a warranty that the article was merchantable, and that the merchantable quality of the article is implied in every executory contract for the sale of personal property. If this were conceded, it would not obliterate the distinction between the effect of an express warranty and that of a mere legal presumption as to the condition or description of the article. The legal presumption being that the parties intended a sale of an article of a merchantable character, the purchaser would not be bound to accept any other; but if he chose, deliberately, "to accept an inferior article as a substantial compliance with the contract, or as satisfactory to him, such acceptance would be binding upon him, and would be regarded in law as a waiver of strict performance. Not so, however, with an express warranty. This is an express undertaking that the article sold possesses certain qualities or characteristics, ap.d this undertaking must be made good. It is something more than a mere description of the article—it is a guaranty of what shall be its future condition at the time of delivery. It is something indepei^ent of, and not indispensable to, the mere act of sale and delivery, and is not merged in the latter. It is an express undertaking that the property sold shall have certain qualities and conditions; and the design of the parties, and the object of the agreement, is ,that the purchaser may by action enforce a compliance with such ah-agreement or obtain damages for its violation. It may be that for perfectly patent defects, obvious to the senses—as in the case of warranty on the sale of a horse—the warranty would not cover them, upon the ground that where there is opportunity for examination, especially prior to the completion of the contract of sale, manifest and conspicuous defects would not be regarded as within the protection of the agreement, upon the ground that they cannot be presumed to have been intended by the parties to have been embraced within its spirit and operation. I think, also, the case is stronger for the plaintiff in that it is an agreement by the defendant that he will himself perform certain acts in regard to the property, making it more' valuable, on which the plaintiff has a right to rely, and for the performance of which he may well be supposed to have reposed implicit confidence in the promise of the defendant.

It is said, also, that when goods of a certain quality are ordered, and when offered for delivery they are not of such quality, they must then be rejected or the purchaser will be remediless. This, as a general proposition, is correct, where there has been an opportunity for examination; but it is upon the ground that it is rather the execution of an order than the making of an independent contract with mutual stipulations and obligations; that the articles when thus tendered are tendered as a compliance with the order, and as being of the quality ordered, and an acceptance of them without qualification or objection is a presumed asseni on the part of the purchaser that they are of the quality ordered or declared; that if they were otherwise, the party having an opportunity for inspection would not have accepted them, and-by his silence or non-objection implied •his concurrence with the implied representation of his agent or the vendor that they were of the quality ordered. In such cases, the order for and the tender of the goods, taken together, amount to a description of them merely—of the truth of which each party must satisfy himself at the time of delivery and acceptance, and not to a positive and express engagement, on the part of the seller, that they do and shall possess the required qualities.

The rights and remedies heretofore alluded to, as incident to and connected with an express warranty, apply equally, so far as I can discover, according to the course of adjudication or the reason of the thing to executed and executory contracts. They arise out of the fact that the warranty is a distinct and independent thing from the mere contract of sale—is not a necessary accompaniment of the latter, nor essential to its validity or existence, and was designed by the parties to confer distinct and independent' rights. It is not, therefore, to be confounded with the contract of sale, nor with the act of delivery; nor is it, nor was it intended to be, merged in either. Its very object was to survive the act of delivery and to be independent of it, and to confer rights which might be subsequently enforced or established. Its essence consisted, not in a mere description of qualities existing in or attached to the article sold, the presence of which was a condition precedent to the obligation to accept, which condition was waived by an unqualified act of acceptance, but in the personal responsibility of the vendor for the truth of his undertakings, which was designed to be equivalent in force and duration to other engagements of a like, description—to outlive the mere act of acceptance,or passing of the title,' and.the breaph of which would not only furnish just occasion for a refusal to accept, but a cause of action for a breach of contract if the purchaser chose to receive the article sold, and rely on the personal engagement of the vendor.

There was, therefore, no necessity for a refusal to accept the tobacco when delivered or tendered, for two reasons; first, because it was probably impossible immediately to determine its condition, and second, because thé parties had contracted for an independent remedy, notwithstanding the act of acceptance. Mere receipt or acceptance of articles purchased, though not answering the conditions of the contract, never destroys the obligations of an- express warranty. All contracts of sale with warranty contain two express and independent stipulations: 1st. An agreement for the transfer of the title and ownership from the vendor to the vendee. 2d. An agreement that the article sold has certain qualities and conditions. These engagements are distinct and independent, and are not to be confounded. The one may be satisfied by the absolute delivery to the purchaser of the article sold. The other may, notwithstanding such delivery, be wholly unperformed. I am not aware of a single adjudicated case where the contract of warranty is held to have been merged in the act of delivery or acceptance. In some instances the act of acceptance may possibly be evidence for the consideration of the jury on the question of performance, of the warranty, or rathei of the interpretation of the contract. Thus, an acceptance of a horse warranted sound, who has certain defects, may, perhaps, if the defects are- slight, be evidence that the parties did not regard them as amounting to unsoundness, or, if plainly visible .and palpable, as not being intended' to be warranted against, upon the ground that the parties, could not have designed them to" be covered by the warranty. Beyond, this, I can not conceive" that the act of acceptance can have any effect upon the contract of warranty,

Nor was the purchaser bound to return the goods or notify the vendor of the defects, for: 1st. The vendor is presumed to know them because he had the opportunity for examination before delivery, and in the case at bar must inevitably have known, them. -2d. It is doubtful whether there is any right to return the goods, in any case, except where the right is specially reserved in the contract, except in the casq of fraud which nullifies the contract itself. (Voorhees v. Earl, 2 Hill, 288; Cary v. Gruman, 4 Hill, 625; Muller v. Eno, 4 Kernan, 601.) 3d. The very object of the warranty is to confer a right of action for its breach, and not to compel the parties to perform an act, to wit: the return of the goods, or a notification of defects, not stipulated in the contract. (See Beirne v. Dord, 1 Selden, 99.)

I think these propositions are substantially maintained in the case of Muller v. Eno (14 N. Y. 597), decided in this court, and do not require farther illustration.

These considerations seem to me conclusive as to the plaintiff’s right to recover,

1. There was a contract for a present sale of the tobacco then growing and owned by the defendant, at a specified price, apart of which was. paid at the time, It maybe that the title did. not then pass, for there were three acts to be done on the part of the defendant, but the defendant could not lawfully sell to another. The tobacco ■ having thus become equitably the plaintiff's property, he had a right to receive it and rely on the covenant of warranty, if it did not answer the representations made of its quality and condition, or if the defendant did not perform upon it the labor which he had contracted to do.

2. There was an express warranty of its future qualities and condition. Work was to be done upon it by the defendant. It was to be properly harvested and properly cured and properly boxed. It was not to be wet, sweaty, or rotten; it was not to be deteriorated nor to shrink in quantity. All this was under the control of the defendant, and wás dependent upon his future acts. He was obliged to perform the operation in a workman-like manner. He did not ' do so, and for this an action lay against him.

3. Notwithstanding the contract was executory and the title did not pass, an action lay against the defendant. The contract of warranty was independent of and not an essential constituent element of the contract <?f sale. They were separate and independent, and both could stand. The contract of sale was performed by a delivery of the property. The payment of the price was a performance on the part of the purchaser. But the ■ contract of warranty remained open, and its performance or violation depended upon the condition and qualities of the property. The enforcement of this contract need not be made instanter. It was at the option of the party aggrieved to enforce it when he thought, proper, within the period covered by the statute of limitations. It was the design of the parties to allow this part of the contract to survive the act of delivery of the article sold, and to authorise an action for the breach of the cove-. nant, notwithstanding the delivery of the property.

- In any reasonable view which can be taken of this con-, tract as alleged, I think the plaintiffs had a good cause of action, and that the judgment should be reversed and a new trial granted, with costs to abide the event.

Mullen, J., concurred with Hogeboom, J. All the other judges being for affirmance, judgment affirmed.


author: Johnson, J. Selden, J.

text:
    Adaline Walker, Administratrix, &c., of Samuel Walker, deceased, v. John A. Millard.
    In April, 1856, the defendant and W. entered into an agreement in writing by which the latter agreed to furnish materials, and do all the work, except mason work, to repair two houses belonging to the defendant, &c., for which the defendant agreed to pay $600 when the job was completed. W. proceeded with his work, and in June, 1856, before it was completed, the defendant paid him, on account of it, $100. On the 3d of July, when the job was nearly completed, the defendant gave "W". a note at three months for $400, on account of said work.

      Held, that the payment of the $100, and the giving of the note for $400, by the defendant, for work done under the contract to a greater atiiotmt, and the acceptance thereof by W. operated in law as a change or modification, of the contract, in respect to the payment, to the extent of the amount of the note; and that in the absence of any fraud, or mistake of facts, the defendant was precluded from setting up the contract to defeat a recovery upon it.
    Accordingly held that the failure by W. to perform the contract, fully and completely, was no defense to an action on the note.
    But that it was a good defense to an action upon the contract, to recover the balance remaining Unpaid.

      Held, also, that in an action by W. upon the note, the defendant was not entitled to have the amount of an alleged claim for damages arising from the non-performance of the contract by W. allowed as a set-off, or counter-claim.
    And that the defendant, having interposed the plaintiff's breach of the con.tract, in avoidance of his own obligation to pay, and procured a ruling to that effect, in his favor, he was not in a situation to enforce the contract against the other party, in any particular; especially in the same action.
    A party cannot both repudiate a contract and enforce it in the same action.
    The action was brought upon a promissory note, given by the defendant to the intestate for $400, dated July 3, 1856, payable three months after date; and also to recover a balance of $100, alleged to be due on a contract for .work done, in repairing certain buildings for the defendant. On the 18 th pf April, 1856, the defendant and Walker, the intestate, entered into an agreement in writing by which the latter agreed to furnish materials and do all the work, except mason work, to repair two- houses belonging to the defendant in the city of Troy, which had been injured by fire, and make them as good, in all respects, as they were before the fire, for which the defendant agreed to pay $600 when the job was completed. The intestate proceeded, with his work, and on'the 11th of June, 1856, and before it was completed, the defendant paid him on account of it. $100. On the 3d of July, when the job was nearly completed, the defendant gave to the intestate the note in question, on account of said work. The plaintiff in the complaint alleged that the contract had been fully performed by the intestate. This was denied in the answer. As a further answer, the defendant set up a counter-claim for moneys paid and laid out to complete said work, and also for loss of rents by reason of delay in completing the work. The action was referred* The referee before whom it was tried, found as matter of. fact, that the note was given to apply on account of said contract, and the work then done under the same; that when said note was given, the work, required by said contract to be done had not been fully performed, and. that said note was executed and received without its being deemed an acceptance of the work" then done under said contract, or an admission that said contract had been fully performed. He further found that when said note was given, more than five-sixths of the work required by said contract had been performed. He also found that some of the work done by the intestate was not as it was required to be done by said contract, but that it was done in good faith in the manner in which it was done, and without any wilful departure from the terms of the contract, and was, pro tanto, a substantial compliance with such •contract. He further found that the intestate, under the contract, should have made one or two pairs of blinds which he had not made, and had therein failed to complete said contract; and" that the defendant had not waived a strict and complete performance of the contract, except by making payment of the'$100, and giving the note in questian, and except as to some slight changes in the work done. Upon these facts the referee held, as matter of law, that the giving and receiving of the note in question operated as a modification of the contract to the extent of the amount thereof, in respect to the terms of payment; and was, in effect, an agreement to ,pay according to the terms of the note, instead of the terms of the contract. He also held, as matter of law, that the intestate not having performed all the work required to be done under the contract, the plaintiff was not entitled to recover the balance alleged to be due thereon, nor to maintain the action upon the contract. In regard to the defendant’s counter-claim, there was evidence tending to prove that the damage to the defendant on account of the work which was required to be done under the contract, but was not done, and of other work imperfectly done, would, together, amount to between $40 and $75.
    The defendant insisted that, inasmuch as the contract had not been fully performed by the plaintiff’s intestate, there could be no recovery either upon'the contract or upon the note. . It was further claimed, in his behalf, that if the action was maintainable, either upon the note or the contract, the counter-claim should be allowed against either claim, upon which the action was held to lie. But the referee refused to find the amount of damages actually sustained by the defendant on account of the non-performance of the contract, holding that such damages could not be allowed against the note; and that, inasmuch as the amount of such-damage was less than the amount which would have been due upon the contract had it been fully performed after deducting the note and the $100 paid, it was only available to defeat the action on the contract, and could not be allowed to the defendant in the action. To these rulings the defendant, by his counsel, duly excepted. The referee gave judgment in'favor of the plaintiff for the principal and interest due on the note. The defendant appealed to the supreme court, where the judgment was affirmed, and then brought his appeal to this court. -

      J. A. Millard, for the appellant.

      J. H. Reynolds, for the respondent.
   Johnson, J.

The mailing and delivery of the note by the defendant, for work done under the contract to a greater amount than the face of such note, and its acceptance by Walker, the other party to the contract, operated in law as a change or modification of such contract, in respect to the payment, to the extent of the amount of the note. There being no fraud, or mistake of facts, the party giving the note is precluded from setting up the contract to defeat a recovery upon it. This was held in Thorpe v. White (13 Johns. 53), a case quite analogous to this. ■ (See also 1 Parsons on Notes and Bills, 197, 200.) This must be so, upon principle. The note certainly was founded upon a good consideration. There is no pretence of any fraud or mistake of facts. It was not given in pursuance of the contract, but upon a new agreement, which was a waiver of the terms of payment prescribed in the contract. A subsequent breach of the contract by the payee could not affect the note, which was given for work already performed. Such, a breach could, by no possibility, be construed into a failure of the consideration of the note. The referee was entirely right, therefore, in holding, that the failure by the payee of the note' to perform the contract fully and completely, was no defence to the action on the note. It was, however, a good defence to the action upon the contract, to recover the balance remaining unpaid, and so the referee held. It is objected on the part of the defendant that the referee has not found, as a fact, that the contract was modified by the giving and acceptance of the note. That was unnecessary. The law infers the modification from the mere fact that a note was made and taken containing an absólute promise to pay different from the terms of the contract. A party may unquestionably waive a right founded on the entirety of a contract, and substitute a different promise, in whole or in part, which will be completely obligatory if accepted by the other party.

The question then arises whether the defendant was entitled tq have the amount of his alleged claim for damages determined by the referee, and allowed as a counter-claim upon or against the note. Most clearly not. The amount which would have been due the plaintiff on the contract, had the work been fully and completely performed, was $100. The referee has found, as matter of fact, that the plaintiff had substantially performed the contract on his part, with the exception of one or two pairs of window blinds, which he was bound by his contract to make, but had not made. He also finds that some of the work which had been done by the plaintiff was.not in all respects as it was required, to be done by the contract, but ■ that it was done in good faith, in the manner it was done, and without any wilful departure from the terms of the contract, and was pro tanto a substantial compliance with the contract. The result of this finding is that the plaintiff had substantially completed his contract, except in the failure to make the blinds, which had not been made, nor the making in any respect waived by the defendant. In this respect the plaintiff had not attempted to perform. There was no complete performance substantially. The. action upon the contract therefore necessarily failed. (Smith v. Brady, 17 N. Y. R. 173.) The action on the contract having failed, the defendant’s counter-claim, growing out of the contract, and being in amount considerably less, necessarily failed also. In strictness the defendant had then sustained no damage at the hands of the ¿plaintiff. Having received, and being in the enjoyment of, the fruits of the plaintiff’s labor and skill, for which he is not required to make any compensation whatever, and the injury by reason of the defects being much less in amount than the value of the labor, it is clear that the defendant is not damnified. He is, on the contrary, considerably benefited. This question is to be considered precisely as though the action had been brought upon the contract alone. The position of the defendant then is this: He refuses to pay, or perform on his part, but insists upon enforcing the contract against the plaintiff. He alleges that the plaintiff has broken the contract, or failed to perform it, and cannot, therefore, compel him to pay, and yet insists that he can compel the plaintiff to pay for defects in the work, for which the latter gets no compensation. This, I apprehend, he can scarcely be allowed to do. He cannot both repudiate the contract, and enforce it, in the same action. Had the defendant' brought his action to recover damages for the non-perform-once of the contract on the part of the plaintiff, it would have been necessary for him to allege performance or an dffer to perform on his own part, or he would not have stated a cause of action. Certainly he is in no better situation in regard to his counter-claim as defendant. Having interposed the plaintiff’s breach, in avoidance of his own obligation to pay, and procured a ruling to that effect in his favor, he is in no situation to enforce the contract against the other party, in any particular, especially in the same action. ■

The judgment is clearly right upon both grounds, and must be affirmed.

Selden, J.

The payment of the one hundred dollars in June, and the giving of the note for four hundred dollars, by the defendant, modified the contract, as to the time and manner of payment, so as to give to it the same effect as if it had originally provided that one hundred dollars should be paid in June, four hundred dollars on the third of July, in a note at three months (provided work to the amount of five hundred dollars should at that time have been done), and the balance when the work should be completed. At the time when the note was given, work had been done to the amount of more than five hundred dollars,- thus furnishing a full consideration for the note, and that consideration has been in no way impaired. The referee correctly held, therefore, that the failure of Walker to perform the residue of the work constituted no defence to the note. (Thorpe v. White, 13 Johns. 53.)

The claim to set off against the note the damages resulting from the partial failure to complete the repairs, was properly denied. The default in that respect constituted a bar to a recovery for that work, - or any part of it, upon the contract, because complete performance was a condition precedent to any further payment on that account; but as the damages arising from the default were less than the balance remaining unpaid on the contract, after deducting the one hundred dollars paid and the amount of the note, the damages were not available as a set-off against the note, given for work actually performed. The question presented by this claim of set-off, is the same which would have arisen if the defendant had paid the note, or-suffered judgment to pass against him upon it, and had then brought an action against Walker to recover the damages in question. It is entirely • clear that, upon the state of facts established in this case, he could not recover in such an action. The claim of damages under such circumstances is based upon the position that the contract, notwithstanding the default of one party in its performance, remains in force against such party. This position cannot be disputed; but if the contract remains in force against one party, it remains also in force against the other party. The default of Walker gave to the defendant a right, at his election, to treat the contract, so far as it had not been performed on both sides, as void or abandoned; and so long as he should choose to stand upon that ground, no recovery could be had against him for any part of the one hundred dollars remaining unpaid, whatever portion of the work, "less than the whole, was done; but if he should.proceed, by action, to recover the damages in question, which would be the equivalent of full performance on the part of Walker, such recovery would require full performance ón his part. He could not demand full performance without rendering full performance in return. In this view of the rights of the parties, the evidence upon which the defendant relied to establish his claim to an amount of damages not exceeding seventy-five dollars, disclosed the existence of a counterclaim against him of one hundred dollars', over and above the amount of the four hundred dollar note, which was sought to be recovered in this action. The referee, therefore, properly refused to allow the damages as a set-off against the note. The judgment of the supreme court should be affirmed.

All the other judges being in favor of affirmance (though IIogeboom and Ingraham, JJ., had some doubt whether . the set-off ought not to have been allowed), Judgment affirmed.


author: Johnson, J.

text:
    Mary Newson, Administratrix, &c., v. The New York Central Railroad Company.
    The law will not hold it imprudent in a person to act upon the presumption that another, in his conduct, will act in accordance with the rights and duties of both, even though such other has once conducted himself in a contrary manner. '
    N. was unloading the defendant’s cars at the place on a side track where, by agreement with the owners of the freight, they had been left for unloading, and at the very point designated by the defendant’s agent, using his team for that purpose, as all the parties contemplated when the arrangement was made. While N. was thus engaged, a locomotive approached, on the main track, and his horses becoming frightened, he received an injury resulting in his death.

      Held, that it was a part of the agreement between the owners of the freight and the railroad company that the person going for the freight should not be molested, or endangered in his person or property, by any act or proceeding on the part of the company.
    That they owed N. a plain duty not to expose him to danger while there, employed in that manner, and that it did not lie with them to say he was guilty of negligence in going therfe, under the agreement, even though he was warned that it was a dangerous place.
    And, it appearing that the defendant was under no overpowering necessity of using the track in question, on that occasion, there being several other tracks which might have been used; Held, that a slight inconvenience attending the use of the other tracks was not sufliicient to affect the otherwise plain implication of the agreement that the defendant would do nothing to place the person going for the freight in jeopardy.
    And that the act of the defendant, in running its locomotive engine over that track, at the time and under the circumstances, was a clear act of negligence and breach of duty on its part towards N., for which a recovery might be had by N.’s personal representatives.
    This action was brought by the administratrix of John Newson, who, it is alleged, was tilled by the negligence of the defendant, to recover damages for such negligence. It appeared on the trial that the firm of Adams, Hastings & McYean, of Rochester, employed the railroad company to transport from Charlotte to Rochester á quantity of gravel in dpen or platform cars, and to be taken from the cars after its arrival in Rochester by Adams, Hastings & MoYean. The railroad company was desirous of leaving the cars at such point on the line of the railroad as would be most convenient for the. owners of the gravel to unload it; and for that purpose the agent of the company offered to "place the cars containing the gravel at three different points on their road—-one on the side track near Lyell street, one on the'side track at Jay street, and the last on the side track next south of the platform, on the north side of the railroad, near the passenger depot, and between State and Mill streets. Mr. Hastings made objections to the other places, but chose the latter place, and the agent of the -company consented to send the cars having the gravel on board on the track next to the platform, and leave them there until the gravel could be removed by Adams, Hastings & McVean. This platform wás constructed several years ago for the' purpose of receiving and discharging such articles of freight as it was' not practicable to receive into and pass through the freight house. It is twelve feet wide, and extends from Mill to State street. The railroad company, at the time of its construction, opened and graded a road or carriage-way on the north side of the platform 151 feet wide; and usually¡ when cars were left on the side track or branch next south of the platform for discharging freight, the articles are removed from the cars on to the platform, or passed over it on to carts or wagons standing on the north side; but sometimes teams have been driven up to the south side of the cars, and stood in the space between the cars and the track next south, which is some 15 feet. This track next south of the branch track is used mainly for passing locomotives to and from the engine house to and from points east of the passenger depot, running on the track outside of and north of the depot. The gravel might easily have been taken from the cars in the usual way of discharging freight at that pointy across the platform, the wagon standing on the north side; but it was more convenient to take it from the cars by placing the wagon on the south side of the cars, in the space above mentioned. Adams, Hastings & McVean requested Newson, who was a teamster, and followed the business of teaming with his own team, to transport the gravel from the railroad to their paper-mill, which was about two ■ miles distant. No direction was given to him as to the mode of removing the gravel from the cars to the wagon, except to say to him to take a shovel and go for the gravel, telling him in general terms where it was, but without instructing him whether to place his wagon on the south or on the, north side, of this platform. It appeared that Newson took one load of gravel from the cars early in the morning, and then drove his team into the space between the branch track and the track next south, and placed his wagon directly south of the cars; that while • he was 'thus loading, a locomotive passed along the track next south of his team, backing down from the engine-house on Brown street, and passing north of the depot to the east side of the river; that while passing Newson’s. team his horses were frightened and restive, but Newson then held them by .their heads and was able to control them. The flagman of the railroad company, standing near, after the engine had passed, warned Newson of the danger of the place—that he must take his .team away; that it was no place for him there. But notwithstanding this occurrence and this warning, Newson in a short time returned to the same place for another load of gravel, and while standing there with his team, the horses not being fastened in any way, another locomotive came from the engine-house, passing along the same track as the first, and backing down in the same way, at the usual speed of three or four miles an hour, for the purpose of passing along on the north side of the depot tq take a train of freight cars from the east side of the river to Buffalo. When the locomotive approached the spot where Newson was standing, and until it got probably within fifty or sixty feet from him, he stood on the gravel cars shoveling gravel into his wagon, his horses’ heads facing the approaching engine, when the horses becoming restive, he jumped down from the cars and caught the bridles of the horses near their heads, and endeavored to keep their heads toward the gravel cars; but they kept backing up and swaying out, and just as the tender attached to the locomotive was passing the horses, they suddenly plunged toward the south, and the pole of the wagon 'caught between the spokes of the hind driving-wheel of the locomotive, the fore legs of the near horse, or one of them, was caught by the wheels and broken. Newson was, at this moment^ near the rear of his horses, on the south side of his wagon, and fell or was thrown over the hub of the forward wagon wheel, two of his ribs broken, the bone broken per•forating the lungs, from which injury, in the course of a few days, he died. It did not appear how he came to be in the position he was when he was hurt, nor whether he was thrown' against the hub of the wagon wheel by the plunging of his horses or by the horses falling against him by the force of the collision with the locomotive. None of the witnesses saw him after he • left the horses’ heads until the locomotive had passed. It is probable that when he saw the collision inevitable, he sprung to get out of the way of the locomotive, and by some mis-step fell on or was thrown against the wagon wheel. He had a scar "on his leg near the thigh, which indicated that his horse had trod upon his leg after he was thrown down. The engineer, the moment he discovered the horses turning toward the engine, reversed its motion, and did all that could be done to stop the locomotive; but it could not be stopped till it had passed the wagon. At the close of the plaintiff’s evidence, the defendant’s counsel moved for a non-suit, which was denied, and the motion was again renewed at the close of the whole case and again denied. It was insisted upon the motions for non-suit, on the part of the defendant by its counsel:
    1st. That the burden of proof was upon the plaintiff to show that Newson was without fault, and that the plaintiff’s proof had not shown this; and
    2d. That from the proof in the case, it was clear that Newson was guilty of negligence:
    (1.) In placing Ms team on the south side of the gravel cars, and so near the passing locomotive and trains, especially as lie knew that Ms horses were liable to be frightened from that cause, and after having been notified and directed by the flagman of the company to keep away from that place.
    (2.) In not fastemng his horses, or otherwise securing them against the consequences of any fright.
    (3.) He had shown, by his efforts in the morning, that he had the power to manage and control and prevent a collision under precisely the same circumstances, and his failing to do so, in this instance, was evidence of negligence.
    (4.) That the proof did not show any negligence on the part of the defendants.
    The judge charged the jury, among other tMngs:
    (1.) That if it was agreed between the defendants and the owners of the gravel that the gravel should be unloaded and taken away from that place (the south side of the cars), and that was the place designated by the defendants (the south side of the cars) for the teams to go and get their loads, the deceased was rightfully and properly there, and the defendants owed him a duty not to put Mm in peril; and that if the place was dangerous, it was wrongful and negligent on the part’ of the defendants to pass their engines over the track wMle he was loading. This part of the charge was excepted to by defendants’ counsel.
    (2.) That it was right. and proper that the deceased should use all reasonable exertions to save his property, and if rightfully there (on the south side) it was a duty he owed the defendants and Mmself to protect Ms property from injury (of course by jumping down and seizing the horses by the head, &c.); and that if he did not unreasonably expose himself, the effort would form no obstacle to his recovery. This part of the charge was also excepted to by the defendants’ counsel.
    The judge was requested to charge the jury that if they should find that New,son’s, horses were frightened in the morning,, and that he was notified by the flagman that the place was a dangerous one, his placing his horses there a second time, without fastening or seeming them in some way, was negligence on his part which contributed to produce the injury. The judge declined so to charge the jury, but permitted them to take that circumstance into consideration when they came to the question of fault on the part of. Newson. This refusal was duly excepted to by defendants’counsel.
    The jury found a verdict in favor of the plaintiff, and from the judgment thereon the defendants appealed.

      S. T. Fairchild, for the appellants.

      Benedict and Martindale, for the respondent.
   Johnson, J.

All the material questions of fact were fully and fairly submitted to the jury upon the trial; and the judgment having been affirmed in the supreme court, the verdict is conclusive here, upon all such questions of fact. The judgment must therefore be affirmed, unless there was some error upon the trial, in matter of law. It is claimed on behalf of the defendants that, as matter of law, Newson, the deceased, was guilty of negligence in going after the second load, in view of the undisputed evidence that the defendants were using the track with their locomotives immediately adjoining the place where the deceased was loading his wagon the first time, and that his horses then became frightened: and that the plaintiff should have been non-suited, or a verdict ordered in the defendants’ favor. ‘

The jury have found, as matter of fact, upon the evidence, that the deceased was not guilty of negligence on his part in going after the second load, notwithstanding the evidence as to what took plaice when he was taking the first load. In view of all the facts and circumstances of this case, the question of negligence in going after the second load, when the injury happened, was most clearly a question of fact for the jury. Although there is evidence to show that the horses were frightened by the locomotive, when it caiñe along so near to them, as the deceased was taking on his first load, it also appears that the deceased held them readily. It does not appear that they moved at all from the place where they were standing, or became in any degree restive, so as not readily to submit to control. The locomotive passed, and the deceased finished putting on his load, and went away safely without any serious trouble or difficulty. The jury might well say from this evidence that the team was a suitable one to take to such a place, and that there was nothing attending the taking of the first load to lead a person ,of'ordinary prudence to apprehend any danger in going after the second load; especially in view of the legal rights and duties of the respective parties, as laid down by the judge in his charge. The place was the one designated by the defendants’ agent for the team to go for that purpose, and even if the defendants had, in one instance, in violation of their duty, run their locomotive so near as to frighten the team, the deceased was not bound to presume they would do it a second time. He might well suppose they would not voluntarily endanger his safety a second time, in violation of his rights, and. their duty, while acting under their directions. It would be going quite too far in favor of these corporations using these mighty forces, so irresistible and so dangerous to those happening to come in their way, to hold, as matter of law, that a person receiving an injury had been negligent, and so remediless, unless he had acted upon the assumption that they would in any case act in total disregard of his rights, and their own plain duty towards him and others.

The law will never hold it imprudent in any one to act upon the presumption that another in his conduct" will act in accordance with the rights and duties of both, even though such other has once conducted himself in a contrary manner. Here the deceased was unloading the defendants’ cars at the place where they had been left for unloading, and at tKe very point designated by their agent, using his team as all the parties contemplated when the arrangement was made. It was part of the contract that the deceased, or some other person, should go there with his team, and take away the freight which the defendants had transported in their cars and left there to be taken •away in that manner. It is too plain for argument that it was part of the agreement, that the person thus going there for that purpose should not be molested or endangered in his person or property, by any .act of proceeding on the part of the defendants. They owed him a plain and clear duty not to expose him to danger while there, employed in that manner, and it does not lie with them to say he was guilty of negligence in going there under the agreement, even though the subordinate flagman, who knew nothing of the arrangement, warned him that .it was a dangerous place. a

The defendants were under no overpowering necessity of using the track in question on that occasion. Conceding it to have been the usual and most convenient track for the purpose for which it was then being traversed,.it was not the only one that might have been used. There were several others which might have been used; so .that the omission to use the one in question for the time being, did not involve a suspension of the defendants’ business. The most that can be claimed on that subject is that by being compelled to use another track, at that time, they might have been put to some slight inconvenience. That is not sufficient to affect the otherwise plain implication of the agreement, that they would do' nothing to place the person going there in jeopardy. The act of the defendants, therefore, in running their locomotive engine over that track, at the time and under the circumstances, was a clear act of negligence and breach of duty on their part towards the deceased, and the judgment should be affirmed.

All the judges concurred, except Davies, J., who read an opinion for reversal, and Ingraham and Selden, JJ., who did not vote* Judgment affirmed*