#### Heath Dry Gas Company, Respondent, *v.*Benjamin Hurd and Louis Lee Haggin, Appellants.

Third Department,

January 8, 1908.

Pleading — contract— sales — complaint setting forth express warranty — implied warranty by manufacturer — latent defects — when warranty survives acceptance — offer to return — liberal construction —objection to sufficiency Of complaint.

An allegation that the defendant contracted to manufadture and deliver carbureti ers which were to be constructed in a careful,, workmanlike and skillful manner, and to answer the purposes and do the work for which they were intended, and that plaintiff, relying on said -contract and believing that they were so constructed, accepted them and used them, states an express warranty of quality.

In any event the complaint states a cause of action for the breach of an implied warranty, for, under an-averment that a contract is with a manufacturer, every fact essential to a warranty isi impliedly alleged and provable.

The defendant’s obligation survived the acceptance of the carbureters, since the defects were latent and not apparent on inspection. ,

The fact that the vendee had used and sold a large number of. the carbureters ■ before discovering the defect made it unnecessary, for him to offer to return them, and- he will not be deemed to have waived the breach of warranty.

A cause of action is stated whenever the requisite allegations can be fairly gathered from all the averments, although the facts are imperfectly or argumentatively averred.

An objection that the complaint does not state facts sufficient to constitute a cause of action, if well taken, is not only a complete answer to a demurrer to a separate defense but should result in the dismissal of the complaint.

Cochrane, J., dissented, with opinion.

Appeal by the defendants, Benjamin Hurd and another, from an interlocutory judgment of. the Supreme'Court in favor'of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 26th day of March, 1907, upon the decision of the court, rendered after a tidal at the Saratoga Special Term, sustaining the plaintiff’s demurrer to the first separate defense set forth in the defendants’ amended answer.

*Adelbei't J. Smith*and *Harold Tapping*for the appellants.

*Edgar T. Bradkett*and *Hiram O.*Todd, for the respondent.

*69Sewell, 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, *70informally 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. *Pem*berton, 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.

Cochrane, J. (dissenting):

I dissent. The contract of sale alleged in the complaint is executory. The express warranty, if any, alleged to have been broken is only such as the law implies. In *Reed*v. *Randall*(29 N. Y. 358, 362) it was said : “In legal effect, therefore, the agreement as to which the breach was alleged was the same as the law would imply in the absence of words of express contract. It would be established upon proof of a contract to sell and deliver the tobacco at a future time, and without proof of express words between the parties, and if express words were used between the parties, yet super-adding to the terms of a contract words expressing an obligation which the law implies, does not change the nature or extent of the obligation or the remedy upon it.” That case has been frequently cited and discussed, but I am not aware that the principle involved in the foregoing quotation has ever been questioned. The precise point was there involved and decided. The complaint was quite as comprehensive and suggestive of inferences of an express warranty as is this complaint, but it was dismissed on the opening of "the case because it was not stated that plaintiff had offered to return the property. In *Day*v. *Pool*(52 N. Y. 416) Judge Peckham, considering *Reed*v. *Randall,*said it was not a case of warranty. He also said that case “ would have been decided the other way had there been an express warranty as to the quality of the tobacco. The court held there was no warranty, and that was the ground of the judgment.”

Although the defects in the property involved herein were not discoverable when the- property was received by plaintiff, the complaint shows that such defects were subsequently discovered, and *72the plaintiff then exercised dominion over the property without offering to. return it. ■ It also appears from the complaint that such property could have’ been returned after the defects were disco v-’ ered. To say that where the defects do not appear upon inspection it cannot be presumed from an acceptance that the vendee intended' to accept an inferior article as a compliance with the contract is merely the assertion of a truism. If the property can be returned after the defects are discovered, there is no reason ip principle or on authority why such return should not be made, although the property had been previously accepted in ignorarme of defects not then discoverable. And that the vendee must, under such circumstances, return or offer to return the property, notwithstanding its prior acceptance, was expressly held in the case of *Crane Company*v. *Collins*(103 App. Div. 480), which case clearly distinguishes Carleton v. *Lombard, Ayres & Co.*(149 N. Y. 137) and *Bierman*v. *City Mills Co.*(151 id. 482), cited in the prevailing opinion herein. The court said: *“*It can make no difference when the defect of quality is discovered. If the defect: is latent and can only be discovered by a use of the articles, which use in itself is a conversion of the goods sold, or such a use of the- goods that it is impossible to return them, then of course the obligation to return does not exist, for a1 return of’ the articles sold is rendered impossible by relying upon,-the representations of the vendor; and this was the, case of *Bierman*v. *City Mills Co. (supra)*and *Carleton*v. *Lombard, Ayres & Co.*(supra); but’ where, after the defect is discovered, the vendee has an opportunity to return the goods, a retention of the goods precludes the vendee from alleging that the articles were not of the description and quality provided .for in the contract.” That case was cited by this’ court approvingly and with unusual emphasis in *Tompkins*v. *Lamb*(121 App. Div. 371).

The complaint in this case shows that such of the articles as were sold by plaintiff were returned to it,- and it cannot reasonably be claimed that it was not in its power to return the articles to defendants substantially unchanged after discovering the defects. The rule requiring the vendee of property with an implied warranty in an executory contract to offer to return it is for the benefit of the vendor, that he may protect himself and take such steps as he deems. advisable to minimize the damages. The vendee may not assume *73to decide for the vendor that the latter would not elect to take back the property because of some slight modifications, or because a few of many articles could not be returned. If it is within tire power of the vendee to substantially return the property without prejudice to himself because of its changed condition or use, he should offer to do so before seeking to impose on the vendor a different liability or a different measure of damages.

If, then, there is no express or collateral warranty alleged in the complaint other than such as the law implies, such complaint is insufficient in the absence óf an allegation of an offer to return the property. *(Coplay Iron Company*v. Pope, 108 N. Y. 232; *Reed*v. Randall, *supra.)*

Interlocutory judgment affirmed,, with .costs, with leave to defendants on payment, within twenty days, of such costs and of the costs in the court below to serve an amended answer.