I think the judgment should be affirmed. In my judgment there is no warranty. The language used in making the contract was simply descriptive. It would have been the same if Perry had said, I will sell you 100,000 feet of first and second quality of lumber, and delivered the same lumber in performance. In such a case, Reed v. Randall* would control.
But if it can be said that there' is a warranty, still a warranty does not apply to open and visible defects. The principle expressed in Parks v. The Morris Axe Co. † is, that a warranty may exist and be enforced in the case of an executory contract, when the defect in the property is incapable of discovery at the time of delivery. Under such circumstances, the purchaser may retain the property and sue upon the warranty. But if the defect is open, visible and notorious, at the time of delivery, the purchaser is bound to reject the articles, and refuse to receive them as a compliance with the contract, or he will waive his right to damages. If I sell a horse with warranty of soundness, he having one ear off, and the purchaser accepts him, seeing the defect, he cannot afterward sue for such defect, and recover damages therefor. So in this case, the purchaser received this lumber with full.knowledge that it was inferior to that contracted for and paid for, and converted the same to his own use. The case last cited, and others of like *231import, all recognize a distinction between the acceptance of articles with latent defects, and those having open and visible defects.. In the latter case, the purchaser should be estopped from claiming damages where he had accepted the property under a contract, with full knowledge of the facts. *
The referee does not find any warranty. The evidence does not establish a warranty. The defendant did not rely upon a warranty when he accepted the lumber, because he then knew the lumber was defective. Perry did not own the lumber when the contract was made. He bought it to make his profit by teaming. Under all these facts it would not be fair dealing to allow defendant to take the lumber and pay for it on the contract, and then maintain an action for damages upon a claim of warranty.
I think the judgment should be affirmed, with costs.
Learned, P. J., concurred.
Judgment affirmed.
29 N. Y., 358.
54 N. Y., 586.
Schuyler v. Russ, 2 Caines, 203; Wilbur v. Cartright, 44 Barb., 536; Jennings v. Chenango Insurance Co., 2 Den., 79; Birdseye v. Frost, 34 Barb., 367; see also Rust v. Eckler, 41 N. Y., 488.