#### George F. Vietor *et*al., Respondents, *against*Louis S. Stroock, Appellant.

(Decided June 20th, 1889.)

Defendant examined certain goods at plaintiffs’ store, which he was informed were to be sold “ as are,” that is, as they stood, regardless of imperfections or quality. The cases were open, and defendant made all the examination of the goods he wished, and, having expressed himself as satisfied, agreed with plaintiffs on a price for the entire lot of the goods; and they were subsequently delivered to him. *Held,*that the quality and quantity of the goods having been determined by what t’ook place before the delivery, there was a sufficient acceptance by defendant to satisfy the statute of frauds.

In an action for the price of goods sold and delivered, which were billed to the purchaser as “ Chinchillas,” and were so called during the negotiations for the sale, defendant offered evidence that they were not “ Chinchillas,” but an inferior article. *Held,*that as the sale was not by sample, but on examination of the goods themselves by the purchaser, and there was no fraud or deceit, the evidence was not admissible.

Appeal from a judgment of the General Term of the City *330Court of New York, affirming a judgment of that court entered on the verdict of a jury and an order denying a motion for a new trial.

The facts are stated in the opinion.

*Noah Davis,*for appellant.

*Blumenstiel & Hirsch,*for respondents.

Bookstaver, J.

The complaint alleges that, on the 4th of March, 1880, the plaintiffs sold and delivered to the defendants goods, wares, and merchandise, consisting of'ten cases of Chinchillas, at an agreed price, .which defendants had failed and neglected to pay. The answer originally interposed by the defendants raised two issues, a sale by sample and a breach of warranty. Two trials were had under these issues in the court below, both resulting in a verdict for defendants, and both judgments entered on the verdict were reversed on appeal to the General Term of that court. Defendants were then allowed to amend their original answer by withdrawing the defenses of breach of warranty and sale by sample, and interposing a general denial. This materially changed the issues: by the first answer the sale and delivery were admitted, and by the second both were denied. Under the issues so framed the last trial was had, and to maintain their action it was necessary for the plaintiffs to establish the sale alleged in the complaint, the agreed price, the delivery, and, as the amount was more than $50 and there was no memorandum of the sale in writing, an acceptance of the goods by the defendants in order to take the case out of the statute of frauds. On the trial defendants did not contest the price nor the delivery of ten cases of goods; but they did very strenuously contest the sale claimed by the plaintiffs and also the acceptance of the goods delivered. Plaintiffs’ testimony tended to show that, at their request, one of the defendants came to their store and partially examined a certain specific lot of goods, called “ Chinchillas,” contained in ten cases; that *331there were no other goods of this kind in their store then; that the same defendant subsequently called again in company with one of his salesmen, and was then requested to examine all or as many of the goods as he desired, as they were to be sold “ as are,” that is, in bulk as they then stood, regardless of imperfections or quality, all of the cases then being open ; that after such examination this defendant then expressed himself as satisfied, and that he had examined all the goods he wanted to; that the price of seventy cents per yard was then agreed upon in plaintiffs’ store; that both the defendant who examined the goods and his salesman said they would take them at that price ; and that they were then repacked in the cases and subsequently delivered to the defendants. The latter say they remained in their possession unopened some ten days. When examined, they say, the goods were not of the quality they expected, and they offered to return them, and plaintiffs declined to receive them.

On these facts a motion was made to dismiss the complaint, both when plaintiffs rested and at the close of the case, on the ground that there was no memorandum of the sale made in writing, and, as it was for more than $50, to take it out of the statute of frauds, plaintiffs were bound to prove not only a sale of the goods but a delivery and acceptance.

If the testimony of plaintiffs’ witnesses as to the foregoing facts was to be relied on, both the sale and delivery of the specific ten cases of goods were sufficiently proved to allow the case to go to the jury on those questions, and the only difficulty in regarding the transaction as a completed sale arises on the question of acceptance. Had what defendants said and done in regard to acceptance followed instead of preceded the delivery, then certainly enough was proved to allow the question to go to the jury also. But it is well settled that an acceptance of specific goods, separated from the others, need not be after delivery only, but may be simultaneous with it or precede it *(McKnight*v. *Dunlap,*5 N. Y. 537; *Cross*v. *O'Donnell,*44 N. Y. 661; *Grey*v. *Cary,*17 Am. Rep. 583 ; Benjamin Sales §§ 178, 180, and authorities cited). It is otherwise when a part only of a larger lot is *332agreed, to be taken and this smaller lot is to be separated or selected from the whole, as where twenty firkins of butter are to be taken from a lot of thirty, or. thirty sheep from a flock of one hundred *(Hermance*v. Taylor, 14 Hun 129). In such cases no title passes to any particular lot until separation aud delivery, and then there remains a right to object to the quality and quantity actually delivered, but obviously no such right remained in this case after delivery, because the quantity and quality had already been determined, and on delivery the title was complete in defendants, if plaintiffs’ version of .the transaction is correct. We think the motion to dismiss the complaint on this ground was properly .denied.

Appellants also contend that the goods were billed as “ Chinchillas,” and were so called during the negotiations for them, and that therefore they had the right to show that they were not “ Chinchillas,” and the court erred in excluding evidence on this point, and they also contend that the complaint should have been .dismissed, because the evidence showed they were not “ Chinchillas.”. Had the sale been by description or sample, such evidence would have been admissible; but the evidence of the defendant and his salesman who made the examination of the goods shows such was not the case; the goods, and not samples of them, were examined, and the jury would not have- been warranted in finding that the sale was by sample, as has been twice' determined by the court below on the same evidence..

In no other aspect of the case was such testimony admissible. Except the questions before examined, the only other question in the case was whether the goods delivered were the identical goods purchased, and of this we think there can be no doubt from the evidence. What they were called, therefore, is immaterial. Both parties were on an equality, both were of long standing and skill in their business. It is not claimed any fraud or deceit was used by the plaintiffs. Both parties knew when bargaining for the goods that they were not and could not have been genuine chinchilla, for that was selling for from $3 to $5 per yard in the market at the time; It must therefore be assumed the defendants knew they were *333purchasing an inferior article, which for convenience or some other cause was called “Chinchilla." If one, knowing the difference between a horse and a mule, and the nature of each, should bargain with another for a mule, calling it a horse, and the identical animal should be delivered to him, he could not avoid payment on the ground it was not a horse, nor could he on the trial of such an action offer testimony of experts to show it was not a horse. The only question there as here, would be, was the identical thing purchased and delivered?

We “therefore think the judgment should be affirmed, with costs.

Allen, J., concurred.

Judgment affirmed, with costs.

On defendants’ application, at the November General Term, 1889, for leave to appeal to the Court of Appeals from the judgment entered on the above decision, the follow-lowing opinion was rendered, December 2d, 1889.

J. F. Daly, J.

There seems to be no question to submit to the Court of Appeals in this case. The decision in *Cross*v. *O’Donnell*(44 N. Y. 661), does not conflict with that in *Schindler*v. *Houston*(1 N. Y. 261), as to what constitutes “acceptance” of goods under the statute of frauds where the price is over $50 and there is no payment nor memorandum in writing. In the latter case there was no acceptance and delivery as required by the statute. In the case before us there was no question as to the delivery, and the facts evidencing acceptance bring it within the decision in *Cross*v. *O'Donnell,*first above cited.

The contention as to the rule that the recovery in an action must be according to the pleadings as well as the proofs, with respect to the averment of a sale of “Chinchillas,” is disposed of in the opinion delivered on the hearing of the *334appeal. The point insisted upon is made with respect to a matter of words rather than of substance.

The motion should be denied, with $10 costs.

Larremore, Ch. J., and Van Hoesen, J., concurred.

Motion denied, with costs.