#### Taylor *v.*Saxe *et al.*

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

July 18, 1890.)

Sale—Rights of Purchaser—Defective Quality.

A purchaser of lumber who declines to accept the same because it is not of the stipulated quality can recover the money paid for freight and customs duties and for storage, hut cannot at the same time recover damages for a breach of the contract, as such a claim would proceed on an affirmance of the "contract.

Appeal from judgment on report of referee.

Action by Edgar B. Taylor against Charles G. Saxe and Frank J. Saxe. There was judgment for plaintiff. Defendants appeal.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

*Harris & Rudd,*for appellants. *Thompson & Lown,*for respondent.

Dykman, J.

This action is based upon a violation of a contract made by the defendants with the plaintiff for the sale and delivery to them of a boatload of pine plank. The cause was tried before a referee, who found that the defendants agreed to sell to the plaintiff a boat-load of pine plank, then in Canada, for 36 cents a plank, delivered at Poughkeepsie, and to induce the plaintiff to make the purchase the agent of the defendants who made the sale represented to the plaintiff that 30 per cent, of the plank should be of the quality known in the trade as “dressing,” and 70 per"cent, thereof should be of a quality known in the trade as “better than dressing;” and that the purchase was made by the plaintiff in reliance upon such representation as to quality; that the plaintiff was to pay the duty on the lumber when it passed the frontier, and the freight thereon upon its delivery, and deduct such payments from the purchase price of the lumber; that the lumber reached Poughkeepsie the forepart of October, 1888, and the agent of the plaintiff refused to accept the same upon a claim that it was not of the quality represented, and the plaintiff immediately telegraphed the defendants the refusal of the plaintiff to receive the lumber. Thereupon the defendants sent their agent to Poughkeepsie to act for them in the premises, and when he examined the plank he pronounced them of a kind and quality different from what the defendants had contracted to sell to the plaintiff. The agent of the plaintiff informed the agent of the defendants that the lumber was all culls, and that *870he would not receive the same; and then the, agent of the defendants requested the agent of, the plaintiff to permit the captain of the boat to unload the plank, and whatever was right would be done. Thereupon, in reliance upon such statement, the plaintiff permitted the captain to place the plank upon the plaintiff’s dock, and paid the freight, amounting to $499.11. The plaintiff had before that paid the duties upon the lumber, amounting to $333.30. . On the 10th day of October the plaintiff again notified the defendants that he could not use the plank, that they were culls, and were not as represented. The referee found as a fact that there were 12,303 plank in the boat-load, and they would have been worth 44 cents apiece' had they been of the quality and kind represented; that the plaintiff never received the plank, but permitted the same to remain on his dock at Poughkeepsie; and that the storage for the same had been worth $25. As a conclusion of law. the referee found that the plaintiff was entitled to recover from the defendants $330.30, with interest, for the duties paid on the lumber; $499.11, with interest, for freight paid thereon; $25 for storage; and $984.24 for damages for a breach of the contract.

The facts recited are easily deduced from the evidence, and are taken mainly from the findings of the referee. The contract between these parties was for the sale and delivery of property of a certain description, and was what the law terms an “executory contract;” and when the defendants came with an inferior article open to inspection, it became necessary for the plaintiff to take his position, and when he discovered that the lumber tendered did not answer the character required by the contract, there were two courses which he might adopt: He could refuse to accept the plank, and thus rescind the contract and recover the money paid for freight and duties, or he could keep the lumber, and rely upon the contract to recover the damages he sustained through its breach by way of counter-claim to an action for the price. But he could not pursue both these remedies, because they were inconsistent. Environed by such circumstances, the plaintiff exercised his right of choice, and declined to accept the lumber, arid thus rescinded the contract, and such election gave him the right to recover back the money he had advanced. Upon that theory the lumber remained the property of the defendants, and the plaintiff might recover for its storage. But the plaintiff went further in this action, and sought to recover damages for a breach of the contract, and he has recovered upon that claim, but the recovery for that item cannot be sustained. His claim to recover back the money advanced for freight and duties rests upon the abrogation of the contract by his refusal to receive the lumber, while his claim for damages proceeds upon the affirmation and consurrimation of the contract, and a recovery by reason of a violation thereof. If the lumber had been accepted by the plaintiff the contract would have then been executed, and he could sustain no action-for the recovery of the money paid for freight and duties, because that would have been a payment on account of the purchase price of the lumber, according to the agreement; but, having declined to accept the plank, he was in a position to sue for the money thus paid, upon the principle which justifies an action for the recovery of the purchase price of property upon the nullification of the sale where the price has been paid by the purchaser. After the rescission of the contract the defendants could sustain no action against the plaintiff for the price of the lumber,- because it had not been accepted, and still belonged to the defendants. Otherwise, if it had been accepted, the defendants might sue for the price, and the plaintiff could recover his dam ages for a breach of the contract by way of counter-claim to such action. But now, since the abrogation of the contract, the plaintiff cannot recover damages for its violation because such a claim would proceed upon the affirmance of the contract. As therefore the claim of the plaintiff for damages can rest upon nothing but the contract, it has no basis for its support, and that portion of the judgment is er*871roneous. The following authorities justify the views we have expressed: 2 Kent, Comm. (10th Ed.) 660; *Sprague*v. Blake, 20 Wend. 64; *Hart v. Wright,*17 Wend. 277; *Gallagher*v. *Waring,*9 Wend. 28. The judgment should therefore be modified by striking therefrom the sum of $984.24, allowed for damages, and, as so modified, affirmed, without costs to either party on this appeal. All concur.