The parol contract, when' made, was an executory contract, for the sale of corn. On performance, sound corn was to be delivered, and if not sound the defendants were not bound to accept; and if, after delivery, it was found to be unsound, they could return 'the corn and refuse to complete the contract. This contract, until performance, was void by the statute of frauds. Neither party was bound to complete the contract. The parties were at liberty to ratify the agreement by performance; and the delivery of the property, or the *565payment of the money under the contract, operated to ratify and make valid a contract which, otherwise could not be enforced. This ratification was no new contract. It only made valid and confirmed the parol agreement, which thereupon became a valid and binding agreement on both parties, to be enforced and carried out according to the original terms. (20 Wend. 61, 63.) The real question then is, whether an executory contract for the sale of grain, in which the vendor agrees to sell the grain as sound, contains, a warranty, or a mere representation. The rule in such cases is well explained by Daniels, J., in Rust v. Ecker, (41 N. Y. 488, 491.) He says: “ The sale vims of the defendant’s dairy of cheese, which, at that time, consisted of an ascertained and definite collection of cheese, and it was as to these that the evidence tended to show a warranty. This circumstance distinguishes the present from those cases in which the actions were brought for the breach of executory contracts for the future sale and delivery of personal property. In the latter class of cases, any articles of the quality contracted for will answer the requirements of the contract. And for that reason, it has been held that the party receiving the property waives his right to insist that the article is inferior in quality to that which, by the terms of the agreement, he was entitled to receive, when he accepts and retains the property. In the one instance, the seller agrees to deliver to the buyer articles of a particular quality, while in the other, the agreement is, that the particular article actually delivered possesses the quality stipulated for. The contract, in the latter, relates to the specific article delivered, forming the identical subject of the agreement. And if it proves to be unperformed, the right of the buyer to maintain an action upon it for the recovery of the damages sustained by the breach, is not lost by the circumstance that he may have received and retained the article sold.” In Hart v. Wright, (17 Wend. 267,) after reviewing the *566cases in regard .to implied warranties, Cowen, J., says: “•A contract to deliver goods, generally, of a certain description is another matter. There the contract is executory, and the vendee may take his ground ,on a defective article being tendered. He has doubtless a right to insist that it shall be merchantable ; and if it prove not to be so, after he shall have taken reasonable time to inspect it, he may return it.” In Sprague v. Blake, (20 Wend. 61, 64,) Cowen, J., says : “ The wheat, by the" terms of the agreed ment, was to be merchantable. This is understood of every such contract, even without express terms, when it is executory. When the party comes to deliver an inferior article, then is the time for the vendee to refuse, or at least, as soon as he dissovers what the quality of the article is, and offers to return it. When it is fully accepted, a new rule" of construction arises. The, executory contract is performed; no action lies upon that; no defense, therefore, can be based upon it; but either must "go upon an actual sale and delivery. The acceptance is an assent that the terms of the executory contract were fulfilled.”
From these cases the rule may be said to be, that where the sale is of a specific article in possession of the vendor, the representation may amount to a warranty; but if it is merely to sell a quantity of any goods, which are to be sound in quality, the remedy of the purchaser is to refuse to accept on delivery, or, if he discovers the defect after-wards, to rescind the contract and return the |p&ods. The application of this rule to the present case shows that the decision was correct. The vendor had not the property in possession; he had purchased it from some other person as sound corn ; he so stated to the vendee; and added, he would sell it as such. I think this was nothing but a mere representation of his belief, and was not a warranty, within the cases referred to. The purchaser could have refused acceptance; or, if he had no opportunity to ex*567amine it before shipment, could have notified the party-before sale, and thereby protected himself from loss.
[First Department, General Term, at New York, January 1, 1872.Unless there was*a warranty proved, there was no cause of action shown, and the ruling at the' circuit was correct.
Judgment affirmed.
Ingraham, P. J., and Cardozo and Geo. G. Barnard, Justices.]