The claim by the appellant, that the action herein was barred by the plaintiff's acceptance of the cheese in question, or that he cannot recover because he did not return the cheese after he discovered the alleged defects cannot be sustained.
On an executory contract for the sale of goods to be of a specified or merchantable quality, and to be delivered at a future day, the acceptance of the goods and retaining them after a reasonable time and opportunity for examination, is held an admission of due performance by the seller, and a waiver of defects, if any there be, in the subject of a sale.
But on a sale and delivery of goods with an express warranty of the quality, the purchaser may rely upon the warranty. His acceptance is qualified by the warranty, and is to be construed with reference to it. And he is not only not bound to return the goods, but he has no right to return them, and the vendor is not bound to receive them. This distinction is recognized by Judge WRIGHT in the prevailing opinion, in Reed v. Randall (29 N Y, 358). And the dissenting opinion of Judge HOGEBOOM enforces and illustrates it. The difference between the members of the court in that case was on the question, to which of the two classes of cases the one before the court properly belonged. Judge HOGEBOOM deemed it a sale with express warranty, and the majority *Page 495 of the court deeming it an executory contract of sale of goods to be of a specified or merchantable quality, but which on the delivery were accompanied by no express warranty.
The rule that defects that are obvious on mere inspection are not covered by a warranty, has no application to a case like the present.
Although, I greatly doubt, that upon the evidence in the case, I could have found that the defendant warranted the cheese, it is manifest that the jury found that he did; and it is to be assumed that they did so under correct instructions from the court that mere representations touching the condition and quality of goods sold such as are ordinarily employed by vendors "puffing" their articles on sale, do not constitute a warranty unless they are intended, received and acted upon as a warranty; and there was some evidence in support of a finding that such was the intention and understanding of the parties to this sale.
2. I think the objections to evidence are none of them such as call for a reversal.
The question put to the witness, Hopkins, whether he saw "anything in the condition of the cellar (in which he had for about eight days stored the cheese) or in its surroundings that rendered it an improper and unfit place to put it," did, I think, call for an opinion. But I think that on such a subject an opinion was competent. The witness was a man of experience in such matters; indeed it was not objected that the witness was not fully competent to speak, if the opinion of an expert was admissible. And surely, whether or not, a cellar examined by the witness is or is not a fit place in which temporarily to deposit cheese in transit to the market, is a question which no man inexperienced or untaught on this particular subject could answer; and if not, then the opinion of those who are accustomed to make, deal in, take care of, and keep cheese, must be resorted to for proof. 3. The question put by the defendant's counsel to the witness, McCready, was properly excluded. The question: *Page 496 "Have you examined defendant's cheese frequently?" was wholly vague in reference to the particular cheese examined, and to the times or occasions when, and even as to the year in which, and whether before or after this action was commenced. The defendant was a dairyman, and had manufactured cheese during other years, and other cheese than those sold during the year of the sale in question. The plaintiff's objection to the next inquiry, therefore, "How did you find it as to quality?" that it was immaterial how on other occasions the witness found the defendant's cheese, was properly sustained. On direct examination the witness had testified to a particular examination of the cheese in controversy. He had been cross-examined upon that subject. These questions, therefore, probably related to other cheese, and were so understood and so ruled upon. The objection sufficiently pointed to the immateriality of any inquiry except into the quality of the cheese sold, and the ruling of the court was to be so construed, and must have been so understood. If the defendant, by his question, meant to inquire further touching any examination of the cheese sold, he was bound so to frame his question that such a purpose was apparent.
4. It is argued that the court erred in permitting certain depositions to be read in evidence on behalf of the plaintiff. No part of the depositions on the certificate of the commissioner appear in the printed case; and although the case states that the papers pertaining to the commissioner are to be produced on the argument, they have not been submitted to our inspection.
One of the objections raised, and insisted upon in the brief of the appellant is, that each sheet of the depositions is not signed by the commissioner. The statute directs that the commissioners shall subscribe their names to each sheet of the depositions taken. (2 Rev. Stat., 394.) On the other hand, the brief of the respondent states that "each sheet of the depositions was signed by the commissioner."
The discrepancy between the name Williams Ogle and William Ogle, is quite too trivial to require discussion. And *Page 497 the error in the superscription of the address to the clerk is wholly immaterial. It was addressed to the "clerk of Herkimer county," and he received it. The error in writing or attempting to write also his name, and in doing so writing, "S. Enos Greene" instead of Zenas Greene, is not of the slightest moment. So also of the addition of the title alderman to the name of the commissioner. No title was necessary so far as the regularity of the execution and return of the commissioner was concerned. Had he added, M.D., or justice of the peace, or any other title, he would have been none the less commissioner. Even if he deemed it safe to add that he held an official character in Philadelphia, which, in addition to our statute requirement that he administer the oath to the witness, also gave official sanction thereto under the laws of Pennsylvania, it could work no prejudice. I do not know that it was of any advantage, but clearly it was harmless.
As to all these objections, I am disposed to favor the suggestion in Kimball v. Davis (19 Wend., 437); Zellwager v. Coffee (5 Duer, 100); Shebdon v. Wood (2 Bosw., 280), that such purely formal defects, if they exist, should be made the basis of a motion to suppress the deposition; and, if necessary, time should be allowed for that purpose. But here I do not think that there was any error in admitting the deposition on either of the objections, as the case is now presented.
None of the other exceptions are argued by the appellant on this appeal. Some points are made which were not taken on the trial, and which therefore do not properly call for attention here.
The judgment must be affirmed.
All the judges concurring, judgment affirmed. *Page 498