Rich v. Minolfi

appears, is a well-known description of bean, differing widely in quality. In the course of the correspondence the defendant wrote “the quality it is understood must be that corresponding to the general average of the year,” to which, so far as appears, the plaintiff’s assignor took no exception. There is no evidence what the average quality of the year was. Defendant in fact shipped only 177j4 quintals, which were paid for upon shipment through a banker in Genoa. The beans arrived in several-shipments, each of which was examined by plaintiff’s assignor upon the dock as it arrived, and then shipped to customers to whom they had been sold, “to arrive.” The beans were of very bad quality; the customers to whom they were shipped refused to receive them; unsuccessful efforts were made to sell them at auction; and they were finally dumped as refuse. The plaintiff has recovered, as for a breach of warranty, the price paid for the beans, plus freight and duty.

There is no doubt that the beans delivered were almost, if not quite, unmarketable, but the difficulty with the plaintiff’s case is that their defects were visible upon mere inspection, and were in fact observed by plaintiff’s assignor when the examination was made upon the dock. Then was the opportunity for the purchaser to have rejected them; and, if he had acted promptly, he probably would have had a good cause of action to recover the purchase price and the expense to which he had been put. He did not do this, however, but accepted the beans and undertook to deliver them, as if merchantable, upon contracts already made. The case, as made by the proofs, does not differ in principle from Waeber v. Talbot, 43 App. Div. 180 , 59 N. Y. Supp. 396 , affirmed 167 N. Y. 48 , 60 N. E. 288 , 82 Am. St. Rep. 712 , in which the contract was to deliver “Talbot Extra Eine Peas, Sieve 23-24.” In that case the court pointed out that the sale of an article by a particular description is rather a part of the contract than an express warranty. In such cases, at least where both buyer and seller are ex.pert and able to judge of the character and quality of the shipment by inspection, the right of the vendee to recover damages upon the ground that the article furnished falls below the requirements of the contract does not survive the acceptance after reasonable opportunity to inspect the goods and ascertain the defects, if any. The motion to dismiss should therefore have been granted.

The judgment and order appealed from must be reversed and the complaint dismissed, with costs to appellant in this court and in the court below. All concur.