On the 2d of February, 1894, the defendant Lancaster entered into an agreement with the defendant, the New York Stone Crush*216ing Company, whereby the former was to erect and complete a stone crushing plant, which included many named articles, as shown on five blue prints and according to the specifications (which blue prints and specifications were signed by the parties and made part of the agreement) for the sum of $15,000, to be paid at specified times and in specified amounts. This plant consisted in part of two stone crushers and a screen, for the construction of which Lancaster contracted with one Dixon, the assignor of the plaintiff. The plaintiff completed the construction of the stone crushers and screen and delivered them to the defendant company, at whose yard they were set up about the 24th of May, 1894. On the 28th of .May, 1894, in payment of his- contract price with Dixon, Lancaster assigned to the plaintiff the payment of $6,000 which would become due to him under his contract with the stone crushing company upon' the delivery of the two crushers and screen. The defendant, the stone crushing' company, refused to make this payment, and this action is brought to recover its amount. That defendant, by its answer, denied that Lancaster liad carried out his contract with it or that there was any sum due under the contract.
The first objection made to this recovery is that the claim -or demand of Lancaster was single and .entire and could not be divided up so as to authorize the plaintiff to maintain an action to recover the part of it assigned to him. It is unnecessary to discuss at any length this objection. The question has been conclusively settled contrary to the defendant’s claim by the decided cases. (Risley v. Phenix Bank, 83 N. Y. 318; Lauer v. Dunn, 23 N. Y. St. Repr. 374.)
The question whether Lancaster had performed his contract so as to entitle him or his assignee to the payment in suit is a more serious question. The evidence on the part of the plaintiff was that the crushers were constructed in exact conformity until the plans and specifications for the' work; This does not seem to be denied by the defendant company. The evidence for the defendant, substantially uncontroverted by the plaintiff, is that the crushers constantly broke down when put in use and were inadequate and insufficient for the work they were "intended to perform. It must necessarily be concluded from these facts that the defect in or difficulty with the crushers lay in their design or plan. Of course, as between the plain*217tiff and Lancaster, the former was no wise responsible for any defect in the design or plan of the crushers. He performed his contract and was entitled to his pay when he made crushers according to the plans furnished, even though such crushers were worthless. But •the plaintiff’s right in this action is derived from Lancaster, and the question is not whether the plaintiff performed his contract with Lancaster, but whether Lancaster performed his contract with the defendant company. The agreement between Lancaster and the' defendant company was that he would furnish and erect, among other articles, two stone crushers in accordance with the blue prints and specifications. Had the blue prints contained nothing but drawings of the machines to he constructed Lancaster’s contract would have been of the same character as the plaintiff’s. These blue prints had this caption: “ Stone Crushing Plant of the N. Y. S. C. Co., Hastings-on-Hudson, N. Y. Arrangement of crushers, elevator and bin. Capacity 600 cubic yards daily. Scale •§ of an inch. Designed by James IT. Lancaster, 59 Cortlandt St., N. Y.” It also appeared by the evidence that the plant was, as matter of fact, wholly designed by Lancaster. I think that, taking the blue prints and the written agreement together, the fair import of the contract between the parties was that the machinery thus designed and to be furnished by Lancaster should have a capacity of 600 cubic yards, and that there was an implied warranty on the part of Lancaster that the machinery furnished should be suitable and adequate for the purpose. The evidence seems to clearly establish that the crushers were insufficient and defective.
Though the defendant company might have properly rejected these crushers as not complying with Lancaster’s contract, it might also preclude itself from such a course by accepting the articles. The trial court has found, as a matter of fact, that the defendant company did accept the crushers, and we think this finding justified by the evidence. The company kept the crushers for some five months. The defect in the machines not appearing on inspection, but solely to be determined by trial, the company had the right to a trial of the machines before it was compelled to either accept or reject the same. (Brown v. Foster, 108 N. Y. 387), but after the defective character of the machines had become known by the trial *218then the company was put to its election to accept or reject them. The use of the machines for the purpose of their business, after the trial had shown that they were defective, was a conclusive election to accept. In this respect the present case resembles closely that of Brown v. Foster (supra), and the decision in that case that the plaintiff, by using a saw mill after knowledge that it failed to comply with the contract, had accepted it and was precluded from subsequently returning it, controls the disposition of this case. We do not say that on the' discovery of the first defect or fault in the machines the defendant company was compelled to make its election. If the fault was trivial or of such .a character as easily to be remedied the defendant would be justified in using the machines; and not precluded from returning them upon the subsequent appearance or discovery of a gross defect that would render the machines useless or materially impair their value. But in this case after the machines had repeatedly broken down in vital parts, and the inadequacy of the machines to perform the specified work had become-apparent, the defendant company still continued to use them. This operated as an acceptance.
It may be that in the agreement between Lancaster and the stone crushing company, there was a warranty that would survive the acceptance of the articles to be furnished. (Gurney v. Atlantic, etc., R. Co., 58 N. Y. 358.) If this be so, doubtless the defendant company might in this action have recouped its damages for the breach of the warranty, or set them off against the plaintiff’s claim. No such -counterclaim or set-off is pleaded by the defendant company, nor is there any evidence in the case to show either the contract price or the-value of the two crushers (the screen being included in the contract between the plaintiff and Lancaster), and having been retained by the defendant company. The defendant company rested its defense solely on the denial of the performance of the contract, and it was not possible, either within the pleadings or under the evidence, to award damages for a breach of warranty.
The judgment appealed from should be affirmed, with costs.
All concurred, except Brown, P. J., not sitting.
Judgment affirmed, with costs.