Heath Dry Gas Co. v. Hurd

Sewell, J. : The defendants do not claim that the defense demurred to is sufficient, but raise the objection that the complaint itself does not state facts sufficient to constitute a cause of action. It is well settled that such an objection, if well taken, is not only a complete answer to the demurrer, but should result in the dismissal of the complaint. (People v. Booth, 32 N. Y. 397.) . The only question, therefore, to be considered upon this appeal is whether a cause of action is stated in the complaint. The allegations of the complaint, summarized, are, that'the plaintiff and the defendants entered into a contract, whereby the defendants agreed to construct carbureters for the plaintiff in such lots as should be ordered ; that the carbureters were to be constructed in a careful, workmanlike and skillful manner; that the plaintiff ordered 225 carbureters to-be constructed by the defendants; that the defendants constructed and delivered 151; that the plaintiff relying upon said contract and believing that the carbureters were constructed in a careful, workmanlike and skillful manner, and not' otherwise, received the same and proceeded to and did use the carbureters in its business, and did sell a large number to its patrons and customers ; that they were improperly, carelessly, unskillfully and negligently constructed and made useless and valueless to the plaintiff, and have failed in all respects to do'the work intended to be done by them as provided in said' agreement; that the plaintiff was unable to see the defects in the construction by reason of the nature of the construction, the defective and insufficient parts being hidden from view or inspection ; that plaintiff did not learn of said defects until it had sold a great many and they had been returned as defective ; that the plaintiff lias been put to great expense in having the •improper construction of the carbureters remedied and repaired so that they could be used for the purpose contemplated by the agreement and intended for them, and so that they would do the work intended to be done by them as provided, in said agreement, and that the plaintiff has suffered damage in the sum of $10,000. Giving these allegations a liberal construction, I think that an express warranty was alleged. A cause of action is deemed to be .stated in a complaint whenever the requisite allegations can be fairly gathered from all the averments, though the facts are imperfectly, [70] informally or argumentatively averred, and the pleading deficient in technical lafiguage. (Zabriskie v. Smith, 13 N. Y. 330; Sanders v. Soutter, 126 id. 193.) Ho particular phraseology is required to constitute a warranty. It is a general rule that whatever a seller represents at the time of a sale is a warranty. (Hawkins v. Pemberton, 51 N. Y. 198.) Here was a positive affirmation that the carbureters should be constructed in a careful, workmanlike and skillful manner. Aside from this it may be fairly implied from other allegations of the complaint that it was also agreed that the carbureters should answer the purposes and do the work intended to be doné by them. I am quite clear that the representations as to the construction of the carbureters constituted a warranty, but assuming, as we may for thé argument, that there was no express warranty, the complaint contains a sufficient cause of action for the recovery of damages for the breach of an implied warranty. Hnder the averment that the agreement was with the manufacturer, every fact essential to a warranty, is impliedly alleged and provable. This statement imports a contract or warranty that the carbureters' shall be free from latent defects growing out of the process of ■ manufacture, that they shall be merchantable and fit for the purposes intended. I can see no reason why the obligation of the defendants did not, under the circumstances in this case, survive the plaintiff’s acceptance and use of the property. Where the defects are latent and not apparent on inspection, there is no occasion for refusing to accept the property, and it cannot be presumed from an acceptance that the vendee intended to accept an inferior article as a substantial compliance with the contract or as satisfactory to him. Assuming that the general ruléis, when. articles are manufactured and sold under an executory contract like the one in question,, that as soon as defects are ascertained the vendee - must offer to return the property, or be held to have waived the breach of warranty, the fact that the plaintiff did not learn- of the defects until it had used the carbureters and sold a large number1 makes this case an exception to the rule. Hnder such circumstances there is a good reason andan excuse for retaining the property, and the failure to return cannot be construed into a waiver of the breach of contract. (Carleton v. Lom [71] bard, Ayres & Co., 149 N. Y. 137; Bierman v. City Mills Co., 151 id. 482.) We are, therefore, of the opinion that the trial court correctly held that the facts stated in the complaint were sufficient to constitute a cause of action, and the judgment must be affirmed, with costs. All concurred; Smith, P. J., in result, except Cochrane, J., who dissented in opinion.