Brown v. Foster

• Decision Date: 28 February 1888
• Parties: BROWN v. FOSTER et al.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 387

15 N.E. 608

BROWN

v.FOSTER et al.

Court of Appeals of New York.

February 28, 1888.

Appeal from general term, court of common pleas, city and county of New York.

Andrew Brown sued Charles Foster and another to recover damages for failure to furnish certain machinery. Judgment for defendants, from which plaintiff appeals.

John L. Logan, Lucius N. Bangs, and Joseph H. Choate, for appellant.

George C. Lay, for respondents.

DANFORTH, J.

This action is for damages in not delivering to the plaintiff, at Olive Hill, Kentucky, an engine, boiler, and saw-mill, with the necessary appliances theretofore contracted to be supplied, set up, and put n running order by the defendants. The defendants answered, alleging a due performance of the contract on their part, an acceptance of the machines by the plaintiff, after inspection, trial, and examination, and sought to recover by way of counter-claims- First, the price of the boiler, engine, etc.; and, second, the price of other goods, wares, etc., sold by them to the plaintiff.

The questions upon this appeal are raised upon the plaintiff's case. Upon the facts found by the referee the plaintiff's action was clearly maintainable, unless the performance tendered by the defendants was in fact accepted in lieu of that actually stipulated for. The referee finds that the articles described in the complaint were in professed compliance with the contract delivered to the plaintiff in June, 1883, but that ‘they did not as a whole work properly, and did not meet the requirements of the contract.’ From that time there was fault-finding on the part of the plaintiff, and complaint at one time that the mill ‘is wrongly constructed from one end to the other,’ and at another time that it ‘is such a grand failure that it will never answer our purpose.’ But on the 25th of June, after in substance rejecting the mill as unsatisfactory, the plaintiff writes to the defendants, ‘Will you permit me to use your mill for cutting 200-300 thousand feet of small oak and maple and beech logs, or shall 1 hire a portable mill, at your expense, to do this work?’ and the defendants at once replied, ‘Use the mill; will have everything in order soon.’ Complaints, however, continued, and on the 21st of July, 1883, the plaintiff said, ‘I cannot accept the mill, nor can I wait longer for your to supply one; ’ adding, ‘For the present will avail myself of your telegraphic permission to use your mill for sawing scantling,’ etc.; to which defendants' manager replied, under date of July 25th, ‘Use mill until I get to Olive Hill.’ He went there about September 1st, made some alteration in parts of the machinery, and returned home. The plaintiff continued to use the mill from that time until the latter part of November, 1883. The referee finds as a fact ‘that on or about the 1st day of September the plaintiff accepted ‘the articles in question;’ and in his conclusions of law declares ‘that the use of the engine, boiler, and saw-mill by the plaintiff after the 1st day of September, 1883, was in law an acceptance of the same, and that thereby the plaintiff became liable for the contract price therefor.’

It is obvious that prior to the 1st of September, or the visit of the defendants' manager to the plaintiff's works, there had been such a positive and unqualified rejection of the machinery as not conforming to the contract as would have required the defendants to retake it or incur liability for the risk and expense of storage, had that been insisted upon. The articles were up to that time their property. The use of the machinery was by their consent, and not in the exercise of any right acquired by the plaintiff as owner. That consent, however, expired with the visit of the manager to the plaintiff's works, and his alteration of the machinery, and that time may be regarded as the period of attempted performance on the defendant's part. The plaintiff then became subject to the general rule that one who seeks to reject an article as not in accordance with the contract must do nothing, after he discovers its true condition, inconsistent with the vendor's ownership of the property. He would, in such a case as the present, be entitled to a reasonable time for examination, long enough to put the machinery in motion and see it operate, and might for that purpose do with it whatever was necessary; and if, after such examination, without dealing with it in any other way, or for any other purpose, he rejected it, acceptance could not be implied. The evidence in this case, however, permits an inference that the plaintiff exercised a dominion over the machinery inconsistent with ownership in the defendants, and consistent only with title as well as possession in himself. He used the machinery in the prosecution of his business, and, although complaining, did not intermit its use. Knowing its defects, he continued to run it. His intent in so doing may be gathered from his acts as well as from his words, and it cannot be said as matter of law ...