I dissent. The contract of sale alleged in the complaint is executory. The express warranty, if any, alleged to have been broken is only such as the law implies. In Reed v. Randall (29 N. Y. 358, 362) it was said : “In legal effect, therefore, the agreement as to which the breach was alleged was the same as the law would imply in the absence of words of express contract. It would be established upon proof of a contract to sell and deliver the tobacco at a future time, and without proof of express words between the parties, and if express words were used between the parties, yet super-adding to the terms of a contract words expressing an obligation which the law implies, does not change the nature or extent of the obligation or the remedy upon it.” That case has been frequently cited and discussed, but I am not aware that the principle involved in the foregoing quotation has ever been questioned. The precise point was there involved and decided. The complaint was quite as comprehensive and suggestive of inferences of an express warranty as is this complaint, but it was dismissed on the opening of "the case because it was not stated that plaintiff had offered to return the property. In Day v. Pool (52 N. Y. 416) Judge Peckham, considering Reed v. Randall, said it was not a case of warranty. He also said that case “ would have been decided the other way had there been an express warranty as to the quality of the tobacco. The court held there was no warranty, and that was the ground of the judgment.”
Although the defects in the property involved herein were not discoverable when the- property was received by plaintiff, the complaint shows that such defects were subsequently discovered, and *72the plaintiff then exercised dominion over the property without offering to. return it. ■ It also appears from the complaint that such property could have’ been returned after the defects were disco v-’ ered. To say that where the defects do not appear upon inspection it cannot be presumed from an acceptance that the vendee intended' to accept an inferior article as a compliance with the contract is merely the assertion of a truism. If the property can be returned after the defects are discovered, there is no reason ip principle or on authority why such return should not be made, although the property had been previously accepted in ignorarme of defects not then discoverable. And that the vendee must, under such circumstances, return or offer to return the property, notwithstanding its prior acceptance, was expressly held in the case of Crane Company v. Collins (103 App. Div. 480), which case clearly distinguishes Carleton v. Lombard, Ayres & Co. (149 N. Y. 137) and Bierman v. City Mills Co. (151 id. 482), cited in the prevailing opinion herein. The court said: “ It can make no difference when the defect of quality is discovered. If the defect: is latent and can only be discovered by a use of the articles, which use in itself is a conversion of the goods sold, or such a use of the- goods that it is impossible to return them, then of course the obligation to return does not exist, for a1 return of’ the articles sold is rendered impossible by relying upon,-the representations of the vendor; and this was the, case of Bierman v. City Mills Co. (supra) and Carleton v. Lombard, Ayres & Co. (supra); but’ where, after the defect is discovered, the vendee has an opportunity to return the goods, a retention of the goods precludes the vendee from alleging that the articles were not of the description and quality provided .for in the contract.” That case was cited by this’ court approvingly and with unusual emphasis in Tompkins v. Lamb (121 App. Div. 371).
The complaint in this case shows that such of the articles as were sold by plaintiff were returned to it,- and it cannot reasonably be claimed that it was not in its power to return the articles to defendants substantially unchanged after discovering the defects. The rule requiring the vendee of property with an implied warranty in an executory contract to offer to return it is for the benefit of the vendor, that he may protect himself and take such steps as he deems. advisable to minimize the damages. The vendee may not assume *73to decide for the vendor that the latter would not elect to take back the property because of some slight modifications, or because a few of many articles could not be returned. If it is within tire power of the vendee to substantially return the property without prejudice to himself because of its changed condition or use, he should offer to do so before seeking to impose on the vendor a different liability or a different measure of damages.
If, then, there is no express or collateral warranty alleged in the complaint other than such as the law implies, such complaint is insufficient in the absence óf an allegation of an offer to return the property. (Coplay Iron Company v. Pope, 108 N. Y. 232; Reed v. Randall, supra.)
Interlocutory judgment affirmed,, with .costs, with leave to defendants on payment, within twenty days, of such costs and of the costs in the court below to serve an amended answer.