Opinion
February, 1905.
Jacob Stiefel, for appellant.
Epstein Brothers, for respondent.
The plaintiff in this action is a corporation conducting a lumber business, with its principal office in Canal street, in this city. In March of last year, in accordance with an order given by a duly accredited representative of the defendant, the plaintiff sent to defendant 500 boards, same being received by defendant in lots and by three separate deliveries. A dispute arose as to character and quality of the material delivered, and the defendant, upon demand of plaintiff, refused to pay, and hence this suit. From the record it is revealed that there had been previous transactions of a like character between these parties, and this particular contract is clearly and unequivocally set forth as follows: "I want about 500 boards, I want clear stock and I don't want them with knots in so that the rosin don't come off because they are to hold goods on. I said the other boards (referring to a previous order) were all right the only thing they was not strong enough and he should make them 2/8 of an inch thicker." When questioned about this being the order, by defendant's counsel, Engler, the man who gave the order, answered as follows: "Q. Now is this all the order you gave him? Ans. That is the order, yes." Subsequently he added, in response to further questioning, "I told him clear stock without knots so that the rosin don't get into the goods because the goods is hot when it goes on the boards." I find nothing in this contract which calls for a single piece board, nor which prohibits a board that has been glued together to meet the required dimensions being delivered. The record shows clearly, and it is admitted without any dispute, that 500 boards were delivered, that they were free from knots, and the unrefuted evidence in the case is that "clear stock" means lumber without knots and nothing more. The defendant should have inspected these boards when they were delivered, and if they were not as ordered he should have promptly rejected them, or, in the alternative, stored them upon notice at plaintiff's expense. Reed v. Remdall, 29 N.Y. 263. Such an inspection was made and instead of rejecting same some of the material was actually used. Subsequently notice of rejection could not avail defendants. They cannot disaffirm the contract as to part of the goods and retain the benefit of the other part. National Keg Box Co. v. Baker, 21 Misc. 35; 46 N.Y.S. 885. There is no merit in the claim that the alleged defect of the boards being glued was latent and could only be ascertained after usage. Mr. Oettinger's testimony disposes of that effectually when he swore, "I came in and saw the boards standing ready for use; I saw the color ended very abruptly and my knowledge of things tell me; I saw the boards were glued." Exactly the reason the plaintiff advanced why any layman could tell from appearance the character of the boards delivered by him. On the question of the court's ruling on the proffered testimony of telephone communications, I believe they were correct, the plaintiff failing to establish a proper basis for its admission, but for the reasons set forth I deem this judgment erroneous, and the same should be reversed and a new trial ordered, with costs to appellant to abide the event.
SCOTT and GIEGERICH, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.