(after stating the facts as above.) The plaintiff sought to recover as for an alleged breach by the defendant of the written contract. Its own breach was proved instead, and the causes of action alleged were not sustained. The plaintiff, nevertheless, was permitted to recover upon other causes of action supposed to be disclosed by the evidence. The recent case of *467Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. Rep. 698, reaffirms the rule that the recovery must be within the case made by the pleadings, unless the parties consent to disregard them. This consent appears to have been given with respect to some of the items. With respect to the machines on hand hereafter considered, it does not appear that the defendant had any notice that he was to meet such a claim until the referee had decided it against him. The defendant requested the referee to find that the plaintiff, by furnishing and shipping machines upon defendant’s order, which were not constructed in a good and workman-like manner, and were not fit for the use for which they were intended, violated its contract with defendant. The referee refused so to find. This was error. The contract, construed with reference to the nature of the business, implies a warranty on the part of the plaintiff that the machines should be reasonably fit for the purpose for which they were intended, and should be salable. Otherwise, how could the defendant sell them? or, how could he realize anything from them either for the plaintiff or himself? The evidence shows that the machines, if made in a good and workman-like manner, and of proper materials, were reasonably fit for the purpose for which they were made, and were salable. Unless these machines should be of this character, the whole business would be wrecked at the outset. Instead of having salable machines, the. defendant would have a mass of rubbish. In executory sales of merchandise there is an implied warranty that it will be merchantable. Hargous v. Stone, 5 N. Y. 73; Reed v. Randall, 29 N. Y. 358. In executed sales a warranty is implied that the article is what its name imports, (White v. Miller, 71 N. Y. 118;) if sold by the manufacturer, that it is free from any latent defects growing out of the process of manufacture, and known to him; and that it is reasonably fit for the purpose for which it is intended, unless the purchaser relies upon his own judgment, (Hoe v. Sanborn, 21 N. Y. 552.) Here the defendant was the factor of the plaintiff for the express purpose of making sales of plaintiff’s machines, and it was of the essence of the contract that the machines should be salable. The referee finds that some of them were not fit to sell or use, and were so far unsalable that, after they had been sold by the defendant, the vendees returned them because of their defects, and that the sales were lost. The defendant must therefore have lost commissions upon such sales. The referee, however, finds that the contract “appears to have been waived as to most of its material provisions. ” We do not think the defendant waived the breach of the contract respecting the merchantable quality of the machines. After the plaintiff had brought him into trouble by sending him imperfect machines, it asked him, in substance, to do the best he could under the circumstances, and this the defendant consented to do. Prices were reduced, and the defendant sought to make his own and the plaintiff’s loss as little as possible, and agreed to account to the plaintiff for what he could realize out of the defective machines. He did not thereby waive his rights for the injury the plaintiff’s breach of contract had already caused him. He rendered a partial account in 1881, and full accounts on February 1,1883. We infer that he was willing the account between him and the plaintiff should be closed upon the basis of the accounts thus rendered. These accounts were not challenged by the plaintiff until about the time of the commencement of this action, except with reference to commissions. Yo claim was stated in the accounts rendered for commissions upon rescinded or lost sales, but there were charges for commissions upon certain freights paid by defendant and upon insurance collected. The account rendered by the defendant is some evidence that he had no charge for commissions lost because of the defective machines. But it does not conclude him. Especially when any of its items are challenged by the plaintiff, it is opened for correction by the defendant. Young v. Hill, 67 N. Y. 162. The refusal of the referee to find that the plaintiff was guilty of any breach of his contract shows that he did not allow him for lost commissions, because *468he did not consider that he ever had a valid claim to them. The referee charged the defendant with $742, being for 33 machines, at $30 each, less commissions at 25 per cent. These are the machines reported by the defendant as on hand February 1,1883. No such cause of action is alleged in the complaint. There is no evidence that the machines were salable, or were ever sold, or were worth $30 each, or any other price. They are parcel óf the machines that the defendant after February 1,1881, undertook to dispose of as best he could, and which, after reporting them on hand two years later, he does not appear to have done anything further with. If he was liable at all, it was'for neglect of duty, and not for withholding their proceeds. Respecting the other items allowed, they seem to have been contested upon the trial as if embraced in the pleadings, and the findings of the referee are supported by the evidence. The judgment should be reversed, and a new trial granted, costs to abide the event. All concur.