#### Harry Rich, Respondent, *v.*Salvatore Minolfi, Appellant.

First Department,.

July 10, 1913.

Sales — breach of warranty — failure of purchaser to reject goods upon discovery of defects.

Where, in an action by the assignee of an importer to recover damages for a breach of warranty, it appears that the assignor had made a contract for the purchase and shipment of a certain quantity of black-eyed beans, the quality of which was to correspond to the general average of the year, and that when such beans arrived the assignor examined them and, although finding that they were of very bad quality, shipped them to customers who refused to receive them, the complaint should be dismissed.

Where both buyer and seller are able to judge of the character and quality of goods by inspection, the right of the buyer to recover damages for breach of contract does not survive acceptance, after a reasonable opportunity for inspection.

*784Appeal by the defendant, Salvatore Minolfi, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of March, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1913, denying defendant’s motion for a new trial.

*Frank Wasserman,*for the appellant-.

*Jacob J. Lesser,*for the respondent.

Scott, J.:

The action is for damages for a breach of warranty. Plaintiff’s assignor is an importer in the city of New York of Italian food products. Defendant is an exporter in Naples, Italy.

In July, 1910, a contract was made by cable and correspondence for the purchase and shipment of 300 quintals of black-eyed beans, which, as it appears, is a well-known description of bean, differing widely in quality. In the course of the correspondence the defendant wrote, “ the quality [it] is understood, must be that corresponding to the general average of the year,” to which, so far as appears, the plaintiff’s assignor took no exception. There is no evidence what the average quality of the year was. Defendant in fact shipped only 177% quintals, which were paid for upon shipment through a banker in Naples. The beans arrived in several shipments, each of which was examined by plaintiff’s assignor upon the dock as it arrived, and then shipped to customers to whom they had been sold, “to arrive.” The beans were of very bad quality; the customers to whom they were shipped refused to receive them; unsuccessful efforts were made to sell them at auction, and they were finally dumped as refuse. The plaintiff has recovered, as for a breach of warranty, the price paid for the beans plus freight and duty.

There is no doubt that the beans delivered were almost, if not quite, unmarketable, but the difficulty with the plaintiff’s case is that their defects were visible upon mere inspection, and were in fact observed by plaintiff’s assignor when the examination was made upon the dock. Then was the opportunity for the purchaser to have rejected them, and if he acted *785promptly he probably would have had a good cause of action to recover the purchase price and the expense to which he had been put. He did not do this, however, hut accepted the beans and undertook to deliver them, as if merchantable, upon contracts already made. The case, as made by the proofs, does not differ in principle from *Waeber*v. *Talbot*(43 App. Div. 180; affd., 167 N. Y. 48) in which the contract was to deliver “ Talbot Extra Fine Peas, Sieve 23-24.” In that case the court pointed out that the sale of an article by a particular description is rather a part of the contract, than an express warranty. In such cases, at least where both buyer and seller are expert and able to judge of the character and quality of the shipment by inspection, the right of the vendee to recover damages upon the ground that the article furnished falls below the requirements of the contract, does not survive the acceptance after reasonable opportunity to inspect the goods and ascertain the defects, if any. The motion to dismiss should, therefore, have been granted.

The judgment and order appealed from must be reversed and the complaint dismissed, with costs to appellant in this court and in the court below.

Ingraham, P. J., Latjghlin, Dowling and Hotchkiss, JJ., concurred.

Judgment and order reversed and complaint dismissed, with costs in this court and in the court below. Order to be settled on notice.