DANFORTH, J.

There is no pretense that the plaintiffs were guilty of any fraud. The learned counsel for the defendants disclaimed it upon the trial and stated that the claim was "for a breach of warranty." The law of the case as stated without objection by the trial judge will not allow the sale to be treated as one by sample, and the first point made by the appellants is "that there was no evidence of a warranty." Of course if that is so a verdict should have been entered for the plaintiffs. The appeal papers do not show that the case was settled by the trial judge, nor that they are copies of the record, nor is there any index. These things are required by the statute, the rules or practice of the court and should be performed to insure certainty and facilitate reference to the proceedings. ( Dow v. Darragh, 92 N.Y. 537.) Assuming the record to be correct, however, it seems quite apparent that there was evidence upon which the jury could fairly come to the conclusion that an express warranty was the inducement to the purchase. In the transaction B. represented the defendants, and E., one of the plaintiffs, acted in person. He first called at defendants' store with samples of English cloakings, and learning from B. that he was engaged, left them for examination; he came again, exhibited samples which were "sound, perfect, even goods," and with those B. was satisfied; he says the weight, width and style of the goods were talked over, and the price and terms of sale. Asked, "was any thing said with reference to the quality of the goods corresponding with the samples," he replied, "They were to be of similar fabric and similar quality;" and his attention being again called to the conversation between E. and himself at the time the order was given, he says, "The width was stated, the weight was stated, the general characteristics of the goods all through were stated to be equal in every respect to the sample," indeed "better in the piece than the sample." There is evidence from the plaintiffs in contradiction and of variance between the present testimony of B. and that given by him on a former trial and other circumstances which might indicate uncertain memory or vacillation on his part. But these circumstances were for the jury to consider in determining his credibility. Their answer to the specific question put to them as well as the general verdict shows that they relied upon it. The testimony referred to was, however, brought out under the plaintiffs' exception to its admissibility. It appeared that at the time of the bargain the plaintiffs gave to the defendants a writing which, so far as is material, is in these words:

"NEW YORK, March 5 th, 1880. "Order from Messrs. A.T. Stewart Co. "To Brigg, Entz Co. "10 pieces fancy cloakings, 1,311, @ $3.20." (Followed by other similar items but of different numbers.) "10 " " " 1,246, @ $3.25." Also followed by similar items, making in all "120 pcs." "Delivery 1-2 in June, 1-2 in July. "BRIGG, ENTZ CO."

It was conceded that the goods referred to therein as "$3.25," were the goods in question, and the plaintiffs having put the paper in evidence, "objected to any oral testimony tending to set up a warranty with regard to the sale of these goods, on the ground that it contains the contract between the parties in relation to them." We think the instrument cannot be so construed. It acknowledges an order for certain articles, a period of delivery and a price. It is an admission of these things by the party signing it, and not at all the contract of both — a mere memorandum to show what had been ordered, that one party might know what they were to supply, and the other what they were to receive, and so avoid a double order. It contains no promise nor undertaking. It does not sell the goods nor does it assume to do so. It was not intended to be a contract. "It went to Europe," E. says, "to the manufacturer," a copy was entered in the plaintiffs' book and a copy given to the defendants. It afforded information by which each of these parties might be guided, and can at the utmost be considered as the recital of things which had been agreed upon, not as an agreement in itself. ( Union Trust Co. v. Whiton, 97 N.Y. 172.) But even an agreement may be valid although only a part is in writing, and while as to that part the writing is conclusive, parol evidence may be used to show the rest. ( Chapin v. Dobson, 78 N.Y. 74.) We think, therefore, no error was committed by the trial court in receiving the parol testimony, and under it and the verdict of the jury, an express warranty as to the quality of the goods agreed to be furnished, must be deemed established.

It was proved that the goods were delivered in August and September, and paid for in October and November. The defendants, therefore, had ample opportunity to examine them, and had they done so it is conceded that the defects now complained of would have been discovered. These circumstances are also relied upon by the plaintiffs as an answer to the defendants' counter-claim. But where a sale is made in good faith, with a warranty of quality as part of the contract, it is sometimes said to be not even voidable (Pollock's Princ. of Cont. 422; Voorhees v. Earl, 2 Hill, 288, where the English cases and others are examined), and at other times that the vendee is not bound to rescind the contract, but may, if he elects, use the article and rely upon the warranty. The first part of this proposition was thought by PECKHAM, J. ( Day v. Pool, 52 N.Y. 416), to be regarded as settled in this State, but it is not material here. The defendants stand, if at all, on the last alternative, and are supported by Muller v. Eno ( 14 N.Y. 597), a case very much like the present. The goods there in question had indeed been manufactured, but at the time of sale were in the bonded warehouse unopened and were thence delivered to the purchaser in the original packages. I do not see that this circumstance at all affects the principle on which the rights of the parties depend. In the case cited the sale was by sample, with warranty that the goods corresponded with it. In the case before us specimens of cloths were exhibited to the purchaser with a warranty that those to be furnished should be of like quality. In both the articles shown were sound goods. It is difficult to see why in one case as in the other the party promising should not perform his engagement, or failing to do so, render just compensation to him who relied upon the promise. Nor can it be material whether the liability for breach of warranty is enforced by a direct action for damages, or by way of counter-claim, or when sued for the price as in Muller v. Eno (supra), by way of recoupment. In that case it is said the claim is not barred by the continued possession of the goods, by circumstances of delay in giving notice to the vendor, nor even by omitting altogether to give such notice and using or selling the property. Although the articles when ordered had no existence, the contract between the parties was an executory agreement for sale of goods and not for work or labor in producing them, so was that in Muller v. Eno (supra). In each case there was an express warranty. The rule there applied seems decisive of the question before us.

In Day v. Pool (63 Barb. 506; affirmed in this court, 52 N.Y. 416), the circumstances were in a more literal sense like those before us. The action was for an alleged breach of warranty in an executory contract for the sale and delivery of rock-candy syrup. The defendants were dealers in syrups in the city of New York, and the plaintiffs were wine makers in Chautauqua county. It appears that at the time of sale the syrup was not manufactured, but was subsequently to be procured by the defendants of the manufacturers in Boston. A sample was exhibited and an order given for syrup of that description.

There was also on the part of the yendors an express warranty as to quality. The syrup was delivered in different lots. The evidence warranted a finding, and it was not controverted by the plaintiffs, that the quality of the syrup could be detected on examination before using, and that it was in fact discovered and known to them at the time they used it, but although found not to correspond either in kind or quality with that agreed to be sent, it was not returned but used and paid for. At the trial the plaintiffs were nonsuited upon the ground that the agreement being executory, and the syrup delivered and received under it with knowledge of its quality, and converted by the plaintiffs to their own use, without notice to the defendants that they would not receive the same upon the contract, or any offer to return it, they could not recover. The nonsuit was set aside and a new trial granted by the Supreme Court, Fourth Department, after a careful examination of earlier decisions. Upon appeal by the defendant to this court the order was affirmed, and the plaintiffs had judgment absolute upon the ground as stated by PECKHAM, J., that the same rights and remedies should attach to a warranty in an executory as in a present sale, and that where there is an express warranty, the purchaser in neither case is bound to return the property upon discovering the breach, even if he have the right to do so. It is true that in both courts very able judges dissented, but the precedent has been since followed in Dounce v. Dow ( 57 N.Y. 16) and Gurney v. At. G. West. R.R. Co. (58 id. 358), where the judges who dissented in Day v. Pool concurred, giving judgment upon the doctrine of that case, and again in Dounce v. Dow ( supra), where after a new trial it came to this court ( 64 N.Y. 411), and was recognized by the then chief judge, who had dissented in Day v. Pool, as establishing that by an executory agreement for sale and delivery of an article of a particular quality, a warranty is established which will survive the acceptance of the article.

In Parks v. Morris Axe and Tool Co. ( 54 N.Y. 586), after referring to Muller v. Eno and Day v. Pool, the court held in a case properly calling for such decision, that a warranty might accompany an executory contract and be enforced as such. Indeed, the principles of law applicable to either case should now be deemed well settled. If the sale is of existing and specific goods, with or without warranty of quality, the title at once passes to the purchaser, and where there is an express warranty, it is, if untrue, at once broken, and the vendor becomes liable in damages, but the purchaser cannot for that reason either refuse to accept the goods, or return them. If the contract is executory, and the goods yet to be manufactured, no title can pass until delivery or some equivalent act to which both parties assent, and when offered, the vendee may reject the goods as not answering the bargain, but if the sale was with warranty, he may receive the goods and then the same consequences attach as in the fomer case, and among others, the right to compensation if the warranty is broken.

It would seem, therefore, that the learned trial judge committed no error in denying the plaintiffs' motion for a verdict in their favor, or in submitting the case to the jury as one in which, if an express warranty was proven, the defendants might have damages. No fault was found by the appellants with the manner of that submission, or the instruction to the jury in respect to the question, nor any claim made either upon the motion for a nonsuit, or at the close of the case, or at any other time, that the defects constituting a breach were so "open and plainly apparent as to deprive the defendants of the benefit of the warranty." Only one exception to the charge was taken by the learned counsel for the plaintiffs, and that related to a different matter. The warranty was made in March. The evidence disclosed that after the arrival of the goods in New York, one of the plaintiffs carried to the defendants samples which he represented came with them. The defendants found them satisfactory and like the original samples. After this the goods were delivered. The trial judge directed the jury to inquire whether the defendants were thereby induced to refrain from examining the goods before acceptance. In a certain view of the case, the circumstance was one to be considered. The original samples were of sound goods and of suitable quality. The second samples were of the same kind and were delivered for the information of the defendants. The goods were then in the plaintiffs' possession and the assurance was to be implied from the plaintiffs' act that the articles were in fact as it had been represented they should be. It might at least be considered in determining whether the defendants had been guilty of unreasonable delay or neglect in examination. ( Dutchess Co. v. Harding, 49 N.Y. 324.)

It was not suggested that there was no evidence upon which the jury might answer the question, nor that it was not within the issue. It is, however, unnecessary to discuss the exception, because the jury found specifically that there was an express warranty of quality, and no fault was found with, nor exception taken to the instructions that in such a case the defendants were neither bound to return the goods, nor give notice of their defective character, but might use or sell the same and yet recover. Therefore, whether or not the acceptance of the goods was induced by this act of the plaintiffs, was immaterial.

The appellants make a further objection that the verdict was irregular and improper. In form it is unusual. It is quite likely it expresses some of the reasoning by which the jury reached their conclusion. The defendants asked to be allowed $7,269.53, or besides canceling the plaintiffs' demand, $5,299.53, with interest. The jury by their verdict say they allow the defendants $6,404.53, or deducting the plaintiff's claim, $4,286.50. It is less than the evidence would have warranted. They show, also, how they arrived at this sum, and indicate an expectation or opinion, or, as the appellants construe the verdict, "recommended" that the damaged goods "be returned." The objection is to this clause. It should have been urged at the time the verdict came in and before it was recorded. The jury might then have been sent back to reconsider and correct it as they saw fit, either in form or substance. ( Warner v. N.Y.C.R.R. Co., 52 N.Y. 437.) The plaintiffs, however, were silent. But they had another opportunity. Judgment was entered. It recited in due form the trial of the issues and a general verdict for the defendants for the sum above stated, viz.: $4,286.53, and judgment accordingly. If the "recommendation" of the jury was of any significance or meaning, it was for the advantage of the plaintiffs, and could have been insisted upon by them. They were entitled to have the judgment conform to the verdict. So, also, it could be waived. With notice of the judgment in the form stated, they made no complaint of variance between it and the verdict, nor did they move to make it conform to the verdict. They should have done so. ( Williams v. Thorn, 81 N.Y. 382; De Lavallette v. Wendt, 75 id. 579.) The clause, however, was properly treated by the court as surplusage, and in the judgment they corrected the verdict by dropping the superfluous parts, yet literally followed the finding which gave the sum stated "for the defendants." Thus both the verdict and the judgment pronounced distinctly upon the issue joined, and upon the whole issue; nothing else was material. The preamble amounted to nothing and could not vitiate the rest. It was the proper subject of amendment, and the court could not hesitate, as an ancient judge expressed it, "to work the verdict into form and make it serve" (Hob. 54), not indeed, by adding or subtracting matter of fact, but perfecting it in point of form.

In Taylor v. Willes (3 Croke, 219), an action of assumpsit, the jury found for the plaintiff and "assessed for damages thirty-three pounds, six shillings, eight pence, to be paid in dyeing, if by law it may be." The judgment given was that he should recover the sum stated for damages assessed by the jury. Upon error brought, the court held the assessment of damages good, "but that which is found after, void," and therefore the judgment was affirmed.

This is but an instance of the general rule that if juries find matter not submitted to them and not pertinent to the issue joined, it may be regarded as surplusage. ( Richmond v. Tallmadge, 16 Johns. 312.) Within this rule we think the court below properly dealt with the question.

The exceptions to evidence have been examined. They seem unimportant and have been sufficiently considered by the General Term. We agree, therefore, in the conclusion reached by that court, and think the judgment and order appealed from should be affirmed.

All concur except RUGER, Ch. J., not voting.

Judgment affirmed.