#### Morris Hess, Appellant, v. Maurice D. Kaufherr and Julius F. Kaufherr, Copartners Trading under the Firm Name and Style of Kaufherr & Co., Respondents.

First Department,

November 6, 1908.

Sale — effect of rejection of goods on specific grounds—waiver ^— erroneous nonsuit.

Where a vendee refuses to accept goods upon particular .objections, formulated and deliberately stated, all other objections to acceptance are deemed waived, and the vendor in order to recover need only prove compliance with the contract in the particulars covered by the objections.

' Thus, it is error to dismiss the complaint of a vendor because he failed to show delivery in June as agreed, if the only objection to acceptance was that the goods were not merchantable.

Appeal by the plaintiff, Morris Hess, from part of a judgment of the Supreme Court in favor of the defendants, 'entered in the office of the clerk of the county of New York on the 18th day of December, 1907, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

*Alfred B.*Nathan, for the appellant.

*Abraham Benedict,*for the respondents.

*527Houghton, J.:

In March, 1907, the plaintiff contracted with the defendants to sell to them about 10,000 summer dry Palloien calf skins, “ June shipment.” In the June following the plaintiff delivered to the defendants and they paid for, about 6,000 of the skins, and in the forepart of the following August he tendered to them the balance which they refused to accept.

The specified ground upon which the defendants refused to accept delivery was that the skins were not merchantable. ■ The plaintiff held the goods subject to the defendants’ order and brought this action for the purchase price.

The ground upon which the nonsuit was granted was that the skins which were to be gathered in Hussia for shipment were not shipped in June but at a later time. The defendants having in writing and orally formulated their objection to acceptance and placed it only upon the ground that the skins were unmerchantable, it was error to dismiss the plaintiff’s complaint on the sole ground that shipment was not made in June as agreed.

When the refusal to accept purchased goods is based upon particular objections, formulated and deliberately stated, all other objections are deemed waived, and the vendor to recover the price need only prove compliance with the con tract of sale in the particulars covered by the stated objections. *(Littlejohn*v. Shaw, 159 N. Y. 188; *Gould*v. *Banks,*8 Wend. 562, 567.)

In *Littlejohn*v. *Shaw {supra)*the contract was “ shipped free in bags * * * February — March — April, ’93, sail shipment at Singapore for Hew York.” The refusal to accept delivery was upon the ground that the goods were not of merchantable quality and not in merchantable condition, and the defendants sought to justify their refusal to accept on the further ground that the shipment was not made at the time agreed. This the court held they could not do because the objection had been placed upon specific and enumerated grounds.

In the case at bar the defendants specified and reiterated their ground for refusing acceptance, placing it wholly upon the claim that the first lot was of such inferior quality as not to be merchantable and hence that they would not accept the second installment, and omitted to state that they refused to accept because shipment *528had not been made in June as stipulated by the contract. They, therefore, are deemed to have waived compliance with the contract in that respect, and it was not incumbent upon plaintiff to prove whether they were shipped in June or not.

There was proof on the part of plaintiff that the skins were of merchantable quality, and a question of fact in this respect was thus made for the jury, and the issue so tendered, which was the only issue in the case, should have been submitted to them.

The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.