#### Cooke *et al. v.*Underhill Manuf’g Co.

*(Supreme Court, General Term, First Department.*

June 6, 1890.)

Bale—Warranty—Acceptance.

In an action for the price of an engine sold defendant, which plaintiSs had guarantied to give satisfaction, it appeared that the engine was started in April, 1887, but it was conceded that defendant had not accepted it up to November 30,1887, when defendant asked plaintiffs to remove it, but continued to use it. On February 10,1888, plaintiffs wrote defendant to know “what decision you have come to about the engine. ” On February 21st defendant replied, “We have no reason to change our views expressed in our letter of November 30, 1887,” and said that the engine was at plaintiffs’ risk, and requested them to remove it. Plaintiffs replied by writing that they did not wish to remove the engine, and argued to show that they should not be held responsible, and said: “If we admit, which we do not, that we must take the engine out under your instructions, what is to become of the foundation?” Defendant immediately wrote that the engine was not satisfactory, and on February 28th that it' was subject to plaintiffs’ order. *Held,*that, there was no acceptance of the engine by user, and it was error to submit that question to the jury.

Appeal from circuit court, New York county.

Action by James W. Cooke and Lydia Cooke against the Underhill Manufacturing Company. Judgment on verdict for plaintiffs, defendant’s motion for a new trial denied, and it appeals.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

*James Dunne,*for appellant. - *Charles D. Baker,*for respondents.

*447Van Brunt, P. J.

This action was brought to recover for an engine proposed to be furnished, delivered, and set up by the plaintiffs for the defendant. Under the contract, the plaintiffs were to build the foundation; the defendant to do the excavating, filling, or piling that might be necessary to secure a firm subfoundation. The plaintiffs guarantied this engine to be built in the very best manner, and to be as durable and economical as any automatic engine. In short, to use their own language,.“we guaranty to give satisfaction, or to take it out at our expense.” The engine was put in and started in April, 1887. Certain complaints having been made as to the engine, tests were made, and on the 28th of November, 1887, the defendant wrote that the engine was not giving satisfaction, and the plaintiffs were asked to remove it. On the 30th of November the plaintiffs were again asked to remove it, and, without considering in detail the evidence produced upon the trial, it is sufficient to say that, up to this time, it was conceded that the engine had not been accepted. Other evidence was introduced showing that subsequent to that time the engine was used by the defendant, and the question submitted to the jury was whether this user was of such a character as constituted an acceptance of the engine. The learned court was asked to charge the jury that, if they found that the defendant never intended to and did not in fact accept the engine, then their verdict should be for the defendant. This the court refused to charge except as it had charged, leaving the question as to whether there was an implied acceptance still for the jury to determine. We think, upon the conceded facts of the case, that there was no such question which could be submitted to the jury. On the 28th of February, 1888, the engine was absolutely rejected by the defendant, and, if it had a right at that time to reject, then there never had been an acceptance. We think that an examination of the correspondence shows that not only had there never been an acceptance up to that time, but that the plaintiffs so understood it. On the 10th of February, 1888, the plaintiffs wrote: “We are quite anxious to know what decision you have come to about the engine. ” If it had already accepted the engine, what decision could the defendant come to in respect to the engine which would be of any interest to the plaintiff? It is clear that at the time of writing that letter the plaintiffs did not understand that the defendant had accepted this engine. On the 21st of February, 1888, the defendant wrote, “We have no reason to change our views expressed in our letter of Nov. 30, 1887, ” up to which time it is admitted there had been no acceptance. “As you are aware, the engine is remaining at Franklin at your risk. The sooner you can remove it, the more agreeable it will be to us.” What is the answer of the plaintiffs? On the 25th of February, 1888, they write acknowledging the receipt of this letter of the 21st. “Before taking any decided action, we want to make a statement of the case as it appears to us, and will endeavor to be as brief as possible. We have no hesitation in saying, what you no doubt have inferred, that we do not want the engine to come out, and this for various reasons;” stating them. “There are two reasons why the engine does not satisfy you, and for neither of these should we be held responsible. ” And then follows an argument to show that they should not be held responsible for those reasons. And the plaintiffs claim that it is not fair, in view of all the facts, that they should be held to a technical interpretation of the promise that the engine should be entirely satisfactory to the defendant. And the letter closes, “expressing the hope that a consideration of the ease as above stated may lead you to look upon the matter in a light more favorable to us. If, however, you are fixed in your determination, there is one point which should be understood. If we admit, which we do not, that we must take the engine out under your instructions, what is'to become of the foundation?”

There is not a single pretense in this correspondence that the plaintiffs understood that the defendant had' accepted this engine, Or that it had not a *448right still to reject it, if it did not comply with the contract. The phrase, “if we admit, which we do not, that we must take the engine out under your instructions, what is to become of the foundation?” was a dissent from nothing except that the engine could be taken out if the defendant desired, whether it complied with the contract or not. There was no pretense that it could not be taken out if it did not comply with the contract. And there was no pretense that the defendants had no right -to claim that it could be taken out because they had accepted it. Upon the same day the defendant writes that it does not comply with the contract, and that it was not satisfactory, and on the 28th that the engine was subject to the plaintiffs’ order and risk. In view of "this correspondence, it is difficult to see how the mere user of the engine during this period could be or was looked upon by either of these parties as an acceptance thereof. In fact, up to the very time when the correspondence ceased and the user of the engine ceased, it was conceded upon the part of the plaintiffs in their letters that there had been no acceptance, and they were negotiating with the defendant for the purpose of getting it to accept it. We think, therefore, that there was no question upon acceptance which could be submitted to the jury. The only question was as to whether the engine complied with the contract or not, and the defendant obliged to accept. This question does not appear to have been submitted'to the jury, and we think that, where both parties assume that up to the time of rejection there was a right to reject, and dealt with each other upon that basis, the jury should not be allowed to come to a different conclusion, and say, under the circumstances, there had been a sufficiently long user to constitute an acceptance. There seems to have been error in refusing the request charged, and the judgment must be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.