(dissenting):
The terms of the contract are not in dispute. As shown in the record now before us the contract is the same as that appearing in the record on a former appeal herein and stated in the opinion. (Ideal Wrench Co. v. Garvin Machine Co., 65 App. Div. 235.) Upon the former trial the plaintiff was nonsuited. We reversed the judgment upon the ground that the case should have been submitted to the jury; but for the guidance of the court upon the new trial we expressed our opinion upon other questions presented and discussed. It was stated in the opinion, in which the majority of the court concurred, that this was a contract for the sale of wrenches to be manufactured in accordance with a sample or model, prepared and agreed upon by the parties, and the defendant having covenanted that the wrenches would be “ made in a first-class manner, in every way equal to that of the model submitted,” that this was a warranty that the wrenches would conform to the sample, and that plaintiff’s assignor, therefore, was not obliged to inspect and reject the wrenches when delivery was tendered, but was at liberty to accept and retain them and offset his damages against any claim that the defendant might have for the contract price, or could recover his damages in an independent action. Upon the new trial, which we awarded, the court followed our opinion on the former appeal. The only reason now assigned in the prevailing opinion for a reversal or modification of the judgment is that the court erred in holding, in accordance with our former opinion, that this was a sale by sample and that there was a warranty that the wrenches would conform to the model. The theory of the prevailing opinion seems to be that all sales of goods not in esse are executory contracts for the manufacture and delivery of goods-, and that the purchaser must, at his peril, within a reasonable time after delivery, or tender of delivery, inspect and reject those that do not conform to the contract, and this even-though the goods were to be manufactured to conform to a particular sample or model which was made the basis of the contract.
*200The doctrine of a sale by sample was originally only applied to a sale of goods in esse, where, for convenience;, a sample was taken from the bulk of the goods and exhibited to the purchaser, who, in purchasing, had a right to believe that the sample exhibited was a fair sample and that the bulk of the goods conformed thereto. This doctrine, however, has been extended as the methods of doing business-have changed. Manufacturers of goods now prepare a sample, and before expending money in the extensive manufacture of goods in accordance with the sample, or concurrently therewith, by exhibiting the sample, solicit orders for goods to conform thereto. Such contracts are now regarded as sales by sample, and the doctrine of warranty which applied only to goods in existence has now been extended to them. Under the rule as it originally'existed, if the defendant had a quantity of bicycle wrenches manufactured and in stock, and presented one to the plaintiff’s assignor as a sample in reliance upon which those in stock were purchased, there can be no doubt that the purchaser would not have been obliged to inspect the wrenches when delivery was tendered and to reject them if they did not conform to the sample wrench exhibited, but that he might accept them and maintain an action for damages for breach of the warranty. I see no difference in principle, so far as this question of warranty is concerned, between such a sale and the sale in the case at bar, where the sample wrench was agreed upon, and the defendant, without other description than the sample, contracted to manufacture and deliver wrenches to conform thereto. The only possible difference there can be is that if the wrenches were in existence at the time of making the contract the vendor would or could know whether or not they conformed to the sample. In the case at bar, while it was originally Understood that the plaintiff’s assignor was to furnish the sample, the defendant subsequently, by mutual consent, manufactured it. The defendant undoubtedly had the model from which it was made, or could readily make one and thus insure that thé wrenches to be manufactured would correspond in all dimensions with the sample. Presumably, also, the defendant knew the quality of the material from which the sample wrench was made, and could obtain the same quality of material for manufacturing wrenches to fill the order; but that is immaterial, for the defect here complained of relates not to material, but to dimensions, it having been shown *201on the part of the plaintiff that the dimensions did not conform to the sample in the particulars stated in our former opinion. The defendant contracted to manufacture the wrenches in accordance with a particular pattern without other description. It failed to perform its contract in this regard, and contends that the plaintiff’s assignor can have no relief on account of his failure to promptly inspect and return the wrenches. The cases cited on the former opinion were then regarded as sufficient to show the extension of this doctrine of sales by sample and warranty. The rule there cited is now attacked by the prevailing opinion, and it is claimed that the authorities cited do not sustain it. It, therefore, becomes necessary to make a more extended examination of the authorities. In Gurney v. Atlantic & G. W. Ry. Co. (58 N. Y. 358) the point decided was that where certain railroad frogs were. manufactured under an executory contract and they did not conform to the pattern or sample, in that there were latent defects discoverable only by use, the purchaser, upon discovering the defects, was not obliged to rescind the contract and return the frogs, but. could retain them and recoup his damages as for a breach of warranty, the court on this point following Day v. Pool (52 N. Y. 416). The observations made in the opinion, quoted by Mr. Justice Ingraham, as to whether a recovery could have been had if the defects had not been latent were, therefore, obiter. The case of Zabriskie v. C. V. R. R. Co. (131 N. Y. 72), cited in our opinion as an authority for the proposition that this was in effect a sale by sample, is cited by Mr. Justice Ingraham as holding a contrary doctrine. That was an action to recover the contract price of coal. The coal was delivered under a contract by which the vendors agreed to sell and deliver to the defend-ant during the year ending June 1, 1888, 30,000 tons of “ Powelton coal, of same quality and kind as furnished you during the past year.” It does not appear from the statement of facts whether the coal had been mined or was even owned by the vendors at the time of making the contract. The same vendors had furnished the defendant a quantity of Powelton coal the previous year. The court decided that this was “ practically a sale by sample ” and stated in the opinion that “ although the standard selected for comparison was not present, or in existence, even, at the time of the sale, its qualities had been observed and demonstrated, and were capable of *202exact ascertainment by the evidence of those who had witnessed the results produced by the consumption of the coal. It was unnecessary for the purpose of effecting a comparison of the respective qualities of the two specimens of coal that they should be present and compared side by side, or tested at the same time. * * * The standard selected for testing the quality of the goods sold was considered sufficiently definite and precise by the parties to the contract, and it does not appear that there was any difficulty in practice in applying it to the subject. A contract of sale which points out a known and ascertainable standard by which to judge the quality of-goods sold, is, for all practical purposes, a sale by sample, and' renders the vendor liable for damages upon a breach of warranty, although there has been an acceptance after opportunity to inspect the goods.” The court also distinguishes that case from' the cases of Coplay Iron Co. v. Pope (108 N. Y. 232); Studer v. Bleistein (115 id. 316), and Pierson v. Crooks (Id. 539) upon the ground that they were executory Contracts for the manufacture and sale or delivery of goods “ of a particular description,” and further said in distinguishing the case then at bar from executory contracts of sale by a particular description: “ While the term ‘ Powelton coal’ may be'said to be a descriptive term, merely, when it is said that the coal was to be Po Wei ton coal of the same quality and kind as that delivered in the previous year, it goes beyond mere words of description, and refers to the intrinsic value of the goods sold in language which cannot be misunderstood, and can be satisfied only by a consideration of its fitness to perform the work required of it in the defendant’s business.” It is also claimed in the prevailing opinion that the case of Brigg v. Hilton (99 N. Y. 511), cited in our former opinion supon the same proposition, is not in point. There an order for cloth was given, the goods to be “ similar fabric and similar quality ” to ■ sample exhibited. The “ general charactéristics of the goods all through were stated to be equal in every respect to the sample.” The goods were subsequently manufactured, delivered and accepted after ample opportunity to examine them. The vendee, on being (sued for the purchase price, counterclaimed damages for breach of warranty. It appeared that the defects could have been discovered upon examination. The court held that there was a warranty that the .goods to be furnished would be of like quality as the sample and *203that the circumstance that the goods had not been manufactured did not affect this question. The case of Pierson v. Crooks (115 N. Y. 539), cited by Mr. Justice Ingraham, I think is not in point. That was an executory contract for the sale of goods by description and there was no sample or model exhibited or involved in the contract. There being no express warranty, it was held that the purchaser could not be heard to complain that the goods were not of the quality described in the contract where, after reasonable opportunity for inspection, he accepted and retained them. If it may be said that this question was previously involved in doubt, I. think it has been finally determined by the Court of Appeals in Henry & Co. v. Talcott (175 N. Y. 385), decided since our former opinion. That was an action for goods sold and delivered under an executory contract for the manufacture thereof. The defendant interposed a counterclaim for breach of warranty, claiming that the goods were to be manufactured according to certain samples. It appeared that the defendant accepted, retained and used the goods. The defendant gave evidence tending to show that the goods Were to be “ equal to certain samples; ” and evidence was presented in- behalf of the plaintiff tending to show that the sample was merely intended to show the design, character, color and general appearance of the cloth. The defendant also attempted to show that the goods were defective in quality; but this evidence was also excluded upon the theory that it was not a sale by sample and that no warranty survived acceptance. The court in reversing the judgment for error in excluding this evidence held that the evidence presented a question for the jury as to whether it was a sale by sample and stated the rule of law to be that “ upon a sale by sample there is an express warranty that the goods are equal in quality to the sample furnished. * * * The seller need not state that the bulk of the goods corresponds with the sample as the warranty is ‘implied in fact’ and is express, for it must be found as a fact that the parties intended the sale to be made by sample, and that the exhibition of the sample was regarded by them as in effect an affirmation as to the quality of the articles sold. (Gurney v. Atlantic & G. W. Ry. Co., 58 N. Y. 358, 364; Keener on Quasi-Contracts, 5.) In the absence of fraud the warranty does not cover latent defects, unless the seller is the manu-. facturer, when it may extend to latent defects growing out of the *204process of manufacture. If upon delivery the goods fall below the quality of the sample the buyer may either reject them or may accept and sue for damages upon the warranty. (Zabriskie v. Central Vt. R. R. Co., 131 N. Y. 72; Kent v. Friedman, 101 N. Y. 616; Day v. Pool, 52 N. Y. 416.) The rule is the same whether the goods are in existence at the time of the contract of sale or are to be manufactured, although it is sometimes said that such a sale is not technically one ’ by sample. (Brigg v. Hilton, 99 N. Y. 517; Gurney v. Atlantic & G. W. Ry. Co., supra.) The mere exhibition of a "sample is not of itself an agreement to sell by sample, and it is usually a question of fact for the jury to decide whether, under all the circumstances, the parties intended that the sale should be made in that way. ' Even if the word sample ’ is used in a written order for goods to be manufactured, the sale is not by sample if the order contains minute specifications and descriptions, involving a great number of changes, variations and differences between the article to be made and the sample shown. (Smith v. Coe, 55 App. Div. 585; affirmed, 170 N. Y. 162.) A sale, however, may be made partly by description and partly by sample, and in that event the goods must correspond to the description in the respect covered thereby and to the sample in other respects. (Bach v. Levy, 101 N. Y. 511, 514; Gould v. Stein, 149 Mass. 570; Burdick on Sales, 95; Benjamin on Sales [7th edf], 684*.) • If the goods, when delivered, do not equal the sample, the buyer need not return them in order to recover for the breach of warranty, although an offer to return is necessary if he wishes to rescind the sale and sue for the amount paid in advance of delivery.”
I am, therefore, of opinion that the judgment should be affirmed, with costs.
Hatch, J., concurred.
Upon plaintiff stipulating to reduce judgment as entered to the sum of $1,801.47, judgment as so modified and order appealed from affirmed, without costs; otherwise judgment and order reversed and new trial ordered, with costs to the party finally prevailing in the action to abide event.
7th Am. ed.— [Rep.