The circuit judge charged that the plaintiffs having furnished the stone, in attempting to execute the contract for furnishing the same, and the stone sent by them having been received by the defendant and accepted by him, and no objection made by him that it did not agree in quantity and kind in every respect with the contract, said defendant could not afterward complain that the contract was not fulfilled, but was bound to pay for *424the material which was actually furnished to him if not paid for and that for any deficiency subsequently ascertained in the stone furnished, they (the jury) must make the proper allowance to the defendant.
The defendant’s counsel excepted to so much of the charge as held that the plaintiffs having furnished the stone, in attempting to execute the contract, were entitled to recover for the material furnished as above stated.
The charge was, in substance, so far as the defendant is concerned most favorable to him — perhaps more so than the law required. It carries out the principles asserted in Reed v. Randall, 29 N. Y. 360, that in cases of the manufacture or sale and delivery of personal property upon an executory contract, the acceptance and retention of property delivered in pursuance of the contract, is an admission, in legal effect, that the contract is or has been duly performed, with an equitable qualification that, if the property sold is found afterward to be defective or deficient, the vendee must return it or give reasonable notice of the defect, so that it may be repaired or perfected or otherwise remedied.
A vendee cannot under such circumstances retain and use the property without objection, and subsequently refuse to pay for it the contract price. A deduction for any subsequently ascertained deficiency may, and doubtless should, uj)on equitable principles, be made and allowed to the defendant, as was properly done in this case, and the recovery had for the property actually received and detained and used by the vendee. The charge in this particular was not erroneous as against the defendant, and was in substance and effect equitable and just to him and the verdict right, upon the basis of mutual mistake (Welch v. Moffat, 1 N. Y. Sup. 575), and the judgment should be affirmed.
Judgment affirmed.