App. Div.] FOURTH DEPARTMENT, JULY TERM, 1898. vided, among other things, that the plaintiff's firm would furnish and erect, during the month of May following, a monument of the description and dimensions therein specified, which was to be constructed of dark Quincy granite "free from unnatural spots and rust." The contract price of the monument was $415, of which sum $100 was payable upon delivery, and the balance on the first day of October thereafter. It was further expressly agreed that the monument should "remain the property of L. Wegenaar & Son with the right to remove and hold the same until fully paid for," and that if the monument was not as described in the contract the defendant would not be required to pay for it " until satisfactory as per agreement." The execution of the contract is admitted by the defendant, but he contends that the plaintiff's firm did not fulfill the same according to its terms, in that the monument furnished was not free from unnatural spots and rust. The issues joined herein were tried by and before a referee, who found that the " monument was not free from unnatural spots and rust, but on the contrary was affected with rust, which appeared in spots on the surface of the monument." The evidence upon this branch of the case, while somewhat conflicting, was, in our opinion, amply sufficient to support the above finding of fact, but of course this of itself did not justify the conclusion reached by the learned referee that the plaintiff was not entitled to recover the balance claimed to be due upon the contract. The contract sued upon was clearly executory in its character, and the language employed therein was descriptive of the article and work to be furnished, which obligated the vendor to furnish a monument which should in all essential particulars correspond with such description. (Pierson v. Crooks, 115 N. Y. 539.) But before the vendee could take advantage of any failure upon the part of the vendor to perform in this respect, it became important for him to show that he had fulfilled a reciprocal obligation which rested upon him; for it is a well-settled rule that if, after discovery of, or a reasonable opportunity to discover, any patent defect in an article delivered under an executory contract of sale, the vendee neither returns nor offers to return the same, but omits to give the vendor notice or opportunity to take it back, the contract becomes FOURTH DEPARTMENT, JULY TERM, 1898. [Vol. 33. executed and the vendee, in the absence of a collateral contract of warranty, is conclusively presumed to have accepted the article, and cannot thereafter be heard to complain of its inferior quality. (Pierson v. Crooks, supra; Coplay Iron Co. v. Pope, 108 N. Y. 232; Reed v. Randall, 29 id. 358; Dowdle v. Bayer, 9 App. Div. 308.) The vital question, therefore, to be considered in this case is whether or not the evidence contained in the record brings the defendant within the operation of the rule above stated, and in order to determine this question intelligently it will be necessary to refer briefly to some of the salient facts of the case. While the contract in question called for the erection of the monument in the month of May, 1893, it was not in fact finished and placed in position until the very last days of the following August, at which time the defendant testifies that he noticed discolorations which he thought indicated the presence of rust, and that he so informed the plaintiff, John L. Wegenaar, who was present supervising the work, but was assured by him that the discolorations to which his attention had been directed were only surface marks or stains caused by the iron bands used in shipping; that the same would disappear in time by the action of the elements and that they could, if necessary, be readily removed by the application of water and oxalic acid. The defendant further states that relying upon these assurances he paid $108 upon the contract, but stated to the plaintiff at the time of paying this sum that if the monument did not come out all right it would go hard with him ; that he thereafter followed the plaintiff's instructions and attempted to remove the rust spots by scrubbing the same with water containing oxalic acid; that this treatment apparently had the desired effect when the monument was wet, but that as soon as the water dried off, the spots reappeared and seemed to be somewhat larger. Notwithstanding all this, however, the defendant thereafter and on the thirteenth day of September, made another payment of fifty dollars upon the contract, and this it is now contended furnishes indubitable proof of acceptance and acquiescence. It is not to be denied that the defendant at the time of making this last payment did have some knowledge of the defect of which he now complains, and with this knowledge such payment would App. Div.] FOURTH DEPARTMENT, JULY TERM, 1898. ordinarily be regarded as equivalent to a formal acceptance (Pierson v. Crooks, supra); but the defendant insists that he was induced to make the payment by the plaintiff's urgent solicitations and in reliance upon the assurance which he had received that the spots would disappear after one or two heavy rains. It appears, and the learned referee has so found, that up to this time there had been no rain of any account, but that shortly thereafter a heavy rain set in which lasted several days; that following this storm the spots, instead of disappearing, increased in size and intensity, and other spots manifested themselves. Thereupon, and on the third day of October, the defendant notified the plaintiff in writing of this fact, and informed him that the balance of the contract price would be ready as soon as he produced a satisfactory monument as per agreement. This was, we think, equivalent to a refusal to accept, and that it was so regarded by the plaintiff is apparent from the fact that he thereafter sent a man to make another attempt to remove the spots which was not sufficiently successful to warrant the person sent in demanding of the defendant a further payment. But was a rejection at this time and in these circumstances sufficient to relieve the defendant from a fulfillment of his contract? The authorities above referred to, as well as many others which might be cited, all hold that the vendee is entitled to full opportunity of inspection before determining whether to accept or reject the article purchased, but in order to avail himself of this right it must be exercised within a reasonable period after the opportunity to inspect presents itself, and if in the meantime the vendee does something inconsistent with the exercise of that right he forfeits it. (Benj. Sales [Bennett's ed.], $ 703.) Thus an unequivocal acceptance may be regarded as a waiver (Sprague v. Blake, 20 Wend. 61; Stone v. Browning, 68 N. Y. 598), and, undoubtedly, payment of the contract price or a part thereof, with knowledge of a defect in the quality of the article purchased, would have the same effect, but, at the same time, conditions may exist which will excuse a party from exercising the right of rejection promptly and even relieve him from the consequences of acts which would, under other circumstances, be regarded as equivalent to acceptance, as, for example, where acceptance is FOURTH DEPARTMENT, JULY TERM, 1898. [Vol. 33. induced by artifice or fraud of the vendor. (The Dutchess Co. v. Harding, 49 N. Y. 321.) It is true that there is no claim that the vendor in this case was guilty of actual fraud; but the learned referee has found upon evidence which is quite convincing that he did induce the defendant to defer action by representations which turned out to be false in fact; and even if such representations were made in good faith the defendant was lulled into inaction by them, and this circumstance, we think, brings the case within the operation of the familiar rule that a party is relieved from the consequences of a failure to perform any obligation where such non-performance is caused or induced by the acts of the other party. (Stewart v. Keteltas, 36 N. Y. 388; Leslie v. The Knickerbocker Life Ins. Co., 63 id. 27; Winch v. Mutual Benefit Ice Co., 86 id. 618.) The plaintiff, it seems, was a dealer in and manufacturer of tombstones. Presumably he had had considerable experience in constructing them out of Quincy granite, and knew something of the peculiarities of that species of stone, while, upon the other hand, the defendant had little or no knowledge upon the subject. When, therefore, the plaintiff assured the defendant that the spots he discovered were not rust, and that they would disappear with proper treatment or as soon as subjected to the influence of a heavy rain, the defendant had a right to believe him, and if, in reliance upon this assurance, he did not act as promptly as he otherwise would have done, and if in the belief that the rain would have the effect claimed for it, he made a payment or did some other act which in different circumstances would be regarded as a waiver of his right to reject, we think that, within the principle of the cases cited, the plaintiff is estopped from invoking the same rigid rule as would be applied if the defendant had been uninfluenced in his actions by the plaintiff's declarations, and, if so, then the learned referee was correct in his conclusion that the defendant had the right to rescind the contract and to recover back the moneys paid by him to the plaintiff. (Taylor v. Saxe, 134 N. Y. 67.) The judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs. FOURTH DEPARTMENT, JULY TERM, 1898. App. Div.] JENNIE SCHERMERHORN and ELLA SCHERMERHORN, as Administra- Negligence -a horse, frightened by a locomotive whistle, dashing upon railroad tracks A train of cars approaching a highway crossing at a high rate of speed, gave no warning of its approach until it had reached a point about 500 feet distant from the crossing. At this point, and while a horse, ordinarily gentle and easily controlled, was drawing a buggy along the highway at a point 100 feet distant from the crossing and not more than half that distance from the railroad track, at a place in the road too narrow to enable him to turn, the locomotive whistle was sounded and the horse, becoming frightened, became uncontrollable and dashed upon the track, where a collision resulted, and a young woman riding in the buggy at the invitation of the driver was killed. Held, that the decedent was not guilty, as a matter of law, of contributory negligence. APPEAL by the plaintiffs, Jennie Schermerhorn and another, as administratrices, etc., of Minna Schermerhorn, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 18th day of December, 1897, upon the dismissal of the complaint by direction of the court after a trial at the Herkimer Trial Term before the court and a jury, and also from an order bearing date the 15th day of December, 1897, and entered in said clerk's office denying the plaintiffs' motion for a new trial made upon the minutes. The plaintiffs bring this action to recover damages for the alleged negligent killing of their intestate by the defendant's train of cars at the German street crossing in the village of Herkimer. At the point where the accident occurred the track of the Mohawk and Malone division of the defendant's railroad crosses German street at nearly right angles. About 1,700 feet north of the crossing is a high ridge of land known as the "hog's back," and from this point to within about 500 feet of the crossing the railroad and highway are substantially parallel to each other and about 130 feet apart. APP. DIV.- VOL. XXXIII. 3 |