(dissenting):
The written contract for the monument provided “ no payments in advance. One-half when the work is .ready for shipment. Balance when the work is set.” The contract for the headstone was oral, and nothing was said as to the time of payment. As - to both contracts, therefore, except as to the first payment on account of the monument, payment was to be made on completion of the work. It would seem that under such contracts there is implied a reasonable opportunity when practicable for the purchaser to assure himself before payment that the work corresponds to the - contract. While the plaintiff personally was unfamiliar with the different kinds of granite, and was unable to distinguish between Westerly granite and Troy granite, the difference, as appears from the record, is clearly apparent and discernible to one familiar with granites. The defect complained of was not a latent, concealed defect in the sense that it could not be ascertained save by subsequent, use or wear. In January, 1903, the material was received on plaintiff’s cemetery lot. January twenty-sixth defendant wrote to plaintiff that the work was completed, and asking for a remittance of the *374balance due. January thirty-first plaintiff replied: “I will comply with your wishes as expressed in. your letter of the 26th as soon as' I can -find timé to inspect the work, which will be within a day. Or two.” Nothing further 'occurred until April first when plaintiff unreservedly sent a'check in full payment^ having made no complaint or suggestion in the meantime that the work was not according to Contract. I think these facts must be deemed to have constituted an acceptance by the plaintiff, and that he was not thereafter' at liberty to change his mind or repudiate the contract. In McCormick v. Sarson (45 N. Y. 265) it is said: “ If he accept it after examination or after' an opportunity for examination, as fulfilling the contract, he is bound by such action:, This rule is well settled. (Reed v. Randall, 29 N. Y. 358; Gillespie v. Torrance, 25 N. Y. 306; Hargous v. Stone, 1 Seld. 73;* Sprague v. Blake, 20 Wend. 61; Hart v. Wright, 17 Wend. 267, 277;† 1 Wend. 185; 20 J. R. 196. ‡) This is the rule in the absence of any fraud or warranty.” In. Crane Company v. Collins (103 App. Div. 480) it. is said: “ Undoubtedly, the rule is that .'where articles of a particular description are agreed to be manufactured or sold, and the articles áre not of the kind specifically described, a retention of them after the defect could with reasonable diligence have been discovered, is a waiver of the defect, and no cause of action survives the acceptance and retention of the articles so manufactured, sold and delivered.”
Plaintiff took his time to make ah inspection and to satisfy himself that the work was satisfactory. Surely it cannot be said that he needed even a small portion of the' intervening time between the receipt of the granite and.his payment therefor. ■ It seems to have required but a few minutes of casual and superficial inspection by the granite dealers whom Tie called as witnesses to determine beyond the peradventnre of a doubt' the exact source and quality of the granite.' Defendant complied with the plaintiff’s expressed wish for an opportunity of inspection. ■ He had the opportunity and if he failed to avail himself thereof it was because- he was satisfied to forego the privilege or right and accept and pay for the work without. availing himself thereof. _
In Pierson v. Crooks (115 N. Y. 552) it isi said: “ The purchaser *375of goods under an executory contract, where payment and acceptance are, by the contract, concurrent and dependent obligations, cannot, on delivery of the goods, pay the purchase-money, and subsequently rescind the contract and reject the goods for defects ascertainable on examination. It would be inconsistent with the nature of the transaction and the admission which the payment implies to permit him to do so in the absence of fraud or deceit on the part. of the vendor. (Brown v. Foster, 108 N. Y. 387.) In such case the purchaser must satisfy himself, before making payment, that the goods tendered correspond with the contract.” In that case the vendee was permitted to recover for payment because the contract in effect provided for “a payment in advance of delivery.” In the present case the contract expressly provides “no payments in advance.” Even if the contract did not permit plaintiff to sufficiently examine the property before payment he expressly exacted such privilege in his letter of January thirty-first which seems to have been complied with by defendant. Plaintiff took all the time ' he desired and much more time than he needed to satisfy himself of the fulfillment of the contract and having thus satisfied himself he accepted and paid for the property. It was thereafter too late for him to change his mind even though as a matter of fact sufficient • grounds for the rejection of the property existed had such right of rejection been promptly and properly exercised.
The learned counsel for the plaintiff seeks to sustain the verdict on the theory of a breach of warranty clearly alleged in the complaint. On such theory an improper measure of damages was adopted as stated by the learned trial justice who for that reason properly granted a new trial..
Order reversed, with costs, and motion denied, with costs.
5 N. Y. 73.— [Rep.
Welsh v. Carter.— [Rep.
Swett v. Colgate, 20 Johns. 196.— [Rep,