The defendant’s contract of May 14th, 1859, for the delivery of the corn, required it to be in good condition and merchantable; not in terms, but by an implication just as binding as if the obligation had been expressed. Cook, in purchasing and receiving the corn, acted as sub-agent, under the plaintiff, for Goddard. He had no. authority from Goddard or from the plaintiff to purchase any but good and merchantable corn. The referee finds that the corn which Goddard authorized the plaintiff to purchase, or cause to be purchased by others for him, was to be good and merchantable; and such would be the legal interpretation of the transaction, in case nothing had'been said by the parties in relation to the quality of the corn. This the defendant knew, or was bound to know, and must be treated as if he actually knew it.
The corn delivered was not good or merchantable, but was, as the referee finds, “ damaged by means of horse manure and urine, and a portion of musty corn having been mixed with it by the defendant.”
The only question remaining is, did Goddard receive the corn as a fulfillment or on account of the contract of the defendant to deliver. He has never in fact received any corn of the defendant, on the contract or otherwise, but on the contrary, had distinctly refused to receive it, for the reason that it was not merchantable. If any person authorized' by him to waive the defects in the quality of the corn has received it for him, he is concluded thereby, the same as if he had received it himself, and, with a knowledge of the condition of the corn, had waived the defects. But neither Cook nor the plaintiff was authorized to receive any hut merchantable corn upon the contract, or to waive any substantial defects in it. But no corn has been received of the defendant *220on the contract, by any one. Cook, to whom the corn was delivered, was not only the agent of Goddard in contracting for the purchase of the corn of the defendant, but was also a , warehouseman, and received the corn into his warehouse in store for the defendant. Such is clearly the legal effect of his receipts given from time to time, as the corn was delivered, and of the one given for the whole quantity, after it was all delivered, when the small receipts were taken up by Cook. They were essentially valid and binding contracts, and determined conclusively on what account the corn was received, and°in what character Cook received it. By them he incurred all the liability and acquired all the rights incident to his business as a warehouseman, and was bound to ordinary diligence, and responsible for losses by ordinary negligence. He was bound to deliver the corn at any time to the defendant on request, or to his order. And although it is quite evident that the intention of the defendant in delivering the corn at the warehouse was for the purpose of fulfilling his contract, still, the legal effect of the receipts was to retain the title to the corn in himself, with the right to withdraw it at pleasure, or to make such other appropriation of it as he might choose. And the legal effect of the receipts cannot be changed by parol evidence of conversations tending to a different conclusion.
[Monroe General Term, September 1, 1862.The $100 paid the defendant on the contract has been demanded and refused. The defendant has sold the corn to another purchaser, and should refund the money received on the contract which has been rescinded.
The judgment, I think, is right, and should be affirmed.
Judgment affirmed.
Johnson, J. C. Smith and Welles, Justices.]