(79 Hun, 53.)

#### HOOPER et al. v. STORY et al.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Appeal—Review—Conclusions of Law.

Where breach of express warranty is alleged as a defense in an action for the price of goods, and the referee finds a warranty and its breach, but does not find any facts which show resulting damage, a judgment for plaintiff will not be disturbed, where exceptions are taken only to referee’s conclusions of law.

Appeal from judgment on report of referee.

Action by Francis X. Hooper, W. Ross Wilson, and Edmund V. Hermanye against John T. Story, Albert E. Fox, and Frederick G-. Fox. From a judgment in favor of plaintiffs, defendants appeal.

Affirmed.

The action is brought to repaver the purchase price of a varnishing machine sold and delivered by the plaintiffs to the defendants. By their answer, the defendants allege that the plaintiffs agreed to make and deliver to the defendants an extra large size varnishing machine, and then represented, agreed, and warranted that the machine should be of a capacity sufficient to varnish *10,000*sheets of labels or advertisements per day, and that it should be so adjusted that it would operate perfectly with another machine ■called the “drier,” and that there was a breach of the plaintiffs’ undertaking, in that the machine made and delivered by them to the defendants had not such capacity, and was not so adjusted, in consequence of which the defendants sustained damages. The referee directed judgment for the plaintiffs for the full amount of the purchase price of the machine.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

W. H. Whiting, for appellants.

L. M. Cummings, for respondents.

BRADLEY, J.

Hone of the evidence is here. The questions arise upon the exceptions to the conclusions of law of the referee, and those conclusions are dependent for support upon the facts as found by him. The referee found that the plaintiffs agreed to make and deliver to the defendants an extra large varnishing machine, to connect with a certain drier, at a certain price, and represented, agreed, and warranted that it should be of capacity sufficient to properly varnish 10,000 sheets of labels or advertisements per day, and be complete in all its parts; that the machine delivered to the defendants was not complete in all its parts, was not made in a workmanlike manner, and that it was not of a capacity sufficient to varnish 10,000 sheets of labels or advertisements per day; and, as one of his conclusions of law, the referee found and determined “that the defendants, by retaining possession of the machine, using the same, and deriving profit therefrom, "with knowledge of its imperfections and incapacity, as well as making repairs and alterations thereon, accepted the machine, and became liable to pay therefor.” To this conclusion the defendants excepted.

The contract for the sale and delivery of the machine was executory. In such case the remedy of the vendee, if the property does not correspond with that which, by the contract of sale, the vendor undertook *640to deliver, is to refuse to accept it; and, if he retain the property after having opportunity to examine and ascertain its quality or character, he cannot maintain action for damages. Reed v. Randall,. 29 N. Y. 358; Brown v. Foster, 108 N. Y. 387, 15 N. E. 608; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243. But the remedy of the purchaser is not thus qualified and limited when the seller has, by Ms undertaMng collateral to the contract of sale, expressly warranted the quality of the property. Then the liability of the vendor for damages for breach of the warranty survives acceptance of it by the vendee. Day v. Pool, 63 Barb. 506, 52 N. Y. 416; Parks v. Tool Co., 54 N. Y. 568; Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372. In the present case the referee has found an express warranty of the capacity of the macMne, and of its fitness for use with the “drier,” so called, and a breach of the warranty. This undertaking of the plaintiff did not include visible defects witMn its operation for the purposes of a remedy for damages. Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243. It may be that the difficulty in the adjustment of the machine for the purpose of its operation with the drier in use by the defendants was discernible, and not covered by the warranty. It, however, is not found that it was so. It must here be assumed, upon the findings of fact, that, as to the character of the machine, it was otherwise; and that the defendants were entitled to be allowed, by way of counterclaim, damages equal to the-difference in value of the machine as it was the value which it would have had if in accordance with the warranty. No other basis of estimating damages appears by the facts as found. The referee, as a further conclusion of law, found that the defendants failed to show any legal claim for damages. There is no finding upon the subject of the value of the machine. The defendants did, however, ask the referee to determine that they were entitled to a specified amount for money paid by them for repairs of the machine and the sum paid out for work spoiled. There was no error in the refusal of the referee to do so. While he found that the defendants had paid out certain sums for repairs of the machine and for work spoiled, he-did not find that those expenses, or any part of them, were occasioned by any defect in the machine for which the plaintiffs were chargeable upon their warranty, and he declined to find that the work was spoiled by reason of the imperfect construction of the machine. He also refused to find, as requested, that the defendants’ profits would have been greater if it had been as warranted. While, therefore, a warranty and its breach appear, it does not appear by the facts as found by the referee that any damages were suffered as the consequence; and, as this review is. founded solely upon the findings of the referee, there is no opportunity for inferences other than such as necessarily arise from the-facts as found by him. The judgment must therefore be affirmed. All concur.