Dounce v. . Dow

Church, Ch. J. The article ordered was “ XX pipe iron,” and the same was forwarded and billed as such. This was a warranty of the character of the article within the decision in Hawkins v. Pemberton (51 N. Y., 198), which modified, to some extent, the earlier decisions of Seixas v. Woods (2 Caines, 48) and Swett v. Colgate (20 J. R., 196). The words “ pipe iron ” referred to the furnace where manufactured, and “ XX ” to the brand indicating the quality. The plaintiff was not a manufacturer, but a dealer in “pig metals,” and was not presumed to know the precise quality of every lot of pigs bought and sold by him, bearing that brand, and hence cannot be held to have warranted that the pigs in question were of any certain quality. (Hoe v. Sanborn, 21 N. Y, 552.) There was no fraud. Both parties supposed, doubtless, that the iron was first quality for the purpose for which it was intended. But it is not enough that the plaintiff knew such purpose. (34 N. Y., 118.) The defendant should have exacted a specific warranty, and then both parties would have acted uhder *416 standingly. If the defendants had ordered XX pipe iron, which was tough and soft, and fit for manufacturing agricultural implements, and the plaintiff had agreed to deliver iron of that quality, a warranty would have been established which, probably, within the case of Day v. Pool (52 N. Y., 416), would have survived the acceptance of the article. Here both parties acted in good faith. The defendants ordered simply XX pipe iron, supposing that such iron was always tough and soft. The plaintiff forwarded the iron under the same impression. The iron proved to be brittle and hard, and the question is, which party is to bear the loss ? The plaintiff (in the absence of fraud) was only bound by his contract, which was to deliver XX pipe iron, and we are now assuming that such iron was delivered. If so, he was relieved from liability. The only other liability which can be claimed that he incurred was of an implied warranty that the iron was merchantable, and this could not be affirmed unless the contract was executory. (2 Kent’s Com. [11th ed.], note o, p. 634.) Without inquiring whether such a warranty would be implied under the circumstances of this case, or • if it would, what in this case the term “ merchantable ” would import, it is sufficient .to say that the defendants, by using a large portion of the iron after an opportunity to examine and ascertain whether it was merchantable, must be deemed to have accepted it, and to have waived the alleged implied warranty within the general rule which, to this extent, is not impaired by Day v. Pool (supra). The only serious question in the case is, whether the court erred in directing a verdict. There was, as we have seen, an express warranty that the iron was XX pipe iron, and there was some evidence, although slight, that it was not. It is claimed that this point was waived. The counsel for the defendants asked to go to the jury upon several questions, but did not include among them the question whether this warranty was broken. It must, I think, be assumed that when a party requests that certain specified questions be submitted to the jury, for which there is no valid ground, that he *417 intends to waive the submission of other questions. (43 X. Y., 85, and eases cited.) Regarding this point as waived, the requests made to submit to the jury were properly declined. The ruling in rejecting the letter of the 28th March, 1868, to the defendants’ predecessors, with this point out of the case, was not erroneous. That letter was not a warranty that the iron in question was tough and soft, but might have been admissible as a declaration of the party, if the iron had not been XX pipe iron. The same brand of iron is not always of the same quality, and the statement, the year before, by the plaintiff that he was receiving iron of that brand, which was tough and soft, would not inure as a warranty that all the iron which he might thereafter sell of that brand was of that quality. We think that the judgment must be affirmed. All concur; Andbews, J., concurring in result. Judgment affirmed.