Plaintiff, an importer of drugs, sued defendant, a commission merchant and broker, in the Municipal Court to recover a sum of money paid to defendant as the purchase price for “ gum myrrh,” then on board a steamship shortly to arrive in the United States, and a small amount of additional damage which plaintiff claims'to have suffered. The action appears to be based upon rescission of the contract of purchase, for an alleged breach of guaranty as to quality.
The contract is in the form of an exchange of letters between the parties and called for “ payment, net cash, after goods are released by the Department of Agriculture.” Upon their release, the merchandise was transferred to plaintiff who paid the purchase price.
Three weeks later, plaintiff complained that the merchandise was of inferior quality and could not be sold as “ Standard Grade,” whether it “ passes the Customs or not.” Defendant replied to that letter, and several days later plaintiff again stated dissatisfaction with the goods, announcing at this time that they were not “ prime quality Gum Myrrh such as we purchased.” A month later, plaintiff wrote another letter of dissatisfaction. About nine months thereafter, plaintiff sent a letter to defendant advising that a libel had been filed against the goods in question. The merchandise described in that libel was later destroyed by govern*230ment officials, the order directing such destruction having been granted on default.
There is no ambiguity in the writings which form the contract. They contain no warranty as to quality. The trier of the facts appears to have implied a warranty of quality, but stated that this was not a sale according to the requirements of the United States Pharmacopoeia and held it to call for merchandise which would “ pass ” the Department of Agriculture. The contract provided no more than that defendant was to be paid after the goods were released by the Department of Agriculture. The trial judge, however, took the view that the word “ released ” imported a governmental approval. This release, however, was merely a condition of payment and not a warranty at all.
I do not agree with the view that the merchandise was shown by the proof to be other than “ gum myrrh.” The government libel and the order for its destruction so denominate it.
Plaintiff did not prove that the goods had no merchantable quality. Gum myrrh, sold here in the raw state, has, it appears, many uses, external as well as internal, and need not in its raw state conform to the United States Pharmacopoeia or standard of the Department of Agriculture. It is noteworthy that the letter in which defendant offered this commodity for sale did not mention any quality or grade, whereas another drug likewise tendered for sale in the same letter was guaranteed to be of “ excellent quality * * * U. S. P.” If plaintiff was to receive merchandise of the superior quality claimed upon trial, it should have so specified in the contract. The only representation by the seller was that the goods would be released by the Department of Agriculture. The testimony of the government employee from that department was that it admits merchandise into this country without being United States Pharmacopoeia standard and that after it is “ released ” the department is no longer interested in it. • Plaintiff, in fact, testified on cross-examination that the only condition of the purchase was that the merchandise should pass that department.
Moreover, under section 150 of the Personal Property Law, plaintiff failed to restore the goods to the possession of defendant in rescinding the contract. Instead, the proof is that plaintiff was the moving factor in having the government confiscate and destroy the goods. The quantity destroyed by the government, as described in the libel documents, is less than the amount concededly in plaintiff's possession pursuant to its purchase. Five bags were received by plaintiff. Some of this material was crushed by plaintiff in preparation for milling and some actually ground. *231Only two bags in their original state were destroyed by the government. Plaintiff exercised rights of ownership over the product. It may not later reject the merchandise, part of which was so used by it. Under the circumstances, judgment for the amount of the purchase price and the damages claimed cannot be sustained.
The determination of the Appellate Term and the judgment of the Municipal Court should be reversed, with costs in this court and in the Appellate Term, and the complaint dismissed, with costs.
Finch, P. J., concurs.
Determination affirmed, with costs.