The sold note in this case is an executory contract, for the sale of goods “ to arrive.” The words “ to arrive ” import a condition that if the goods do not arrive the vendors shall not be bound by the contract. The extrinsic evidence shows that the contract had reference to goods belonging to the defendants, then in Hamburg, or in transit from that city to New York, a sample of which had been exhibited to the plaintiffs. The contract also contained a stipulation that the goods should be equal to the sample. The main question arises upon the effect to be given to that stipulation. Is it a substantive part of the vendor’s agreement to sell, or is it a collateral undertaking amounting to an express warranty of the quality of the goods ? We are clearly of opinion that it is the latter.
The import of the contract is that the vendors agreed to sell goods i/n esse of which they were owners, provided they arrived, and that they warranted such goods to be equal to the sample. The evidence shows,.that goods of an inferior quality did arrive and were tendered to the plaintiffs in performance of the vendor’s *243agreement, the vendors announcing at the same time that they had no goods of a better quality. We are of opinion that those acts constituted a breach of the contract of sale by the vendors, and entitled the plaintiffs to recover. (Simond v. Braddon, 2 C. B., N. S., 324; Jones v. Just, 3 L. R., Q. B., 197; Cleu v. McPherson, 1 Bosw., 480.) No complaint of the measure of damages applied has been made.
The defendants, upon the authority of Shields v. Pettie (4 N. Y., 124), insist that the contract of sale was conditional not only upon the arrival of the goods, but also upon their turning out to be of the prescribed quality. In that case • there was no express warranty. The contract was for the sale of No. 1 iron, that description having been used as a designation of the goods intended, and which also indicated the quality of them. The court held that the iron called for by the contract did not arrive, and the contract was at an end. The remark that the iron was of a different quality, simply emphasized the statement that the iron which did arrive was not the Ron called for by the contract. In such a case, the contract is at an end, fór the reason that the condition on which the vendor’s liability depends has not been fulfilled, and the vendee cannot be compelled to accept goods of an inferior quality. In other words, there was no breach of the contract of sale by the vendors, by reason of the condition, and the vendees were not bound to accept goods which they had not agreed to buy. But an express warranty is collateral to the principal contract, and the rule is well settled that the buyer may reject the goods and sue for damages for a breach of the warranty. Indeed, he may receive the goods tendered in some cases without forfeiting his right to recover. (Per Hogeboom, J., Reed v. Randall, 29 N. Y., 374; Rust v. Eckler, 41 Id., 494; Day v. Pool, 52 Id., 416; Parks v. Morris Ax & Tool Co., 54 Id., 586.) But a vendor cannot, in any case, set up his own breach of warranty in discharge of his liability under the contract. The plaintiffs were not bound to perform or offer to perform the contract after the defendants had declared their inability to perform it. Such act would have been useless, and the law does not squire mere formalities in such a case. There was, perhaps, a slight inaccuracy in *244the charge of the judge, that the defendants had undertaken that the shipment was engaged, and if it was not, and the . goods were not shipped, then there was a breach of the contract. But I do not see how the defendants could have been injured thereby. The judge plainly referred to goods of the description specified in the contract. The contract could not be performed without a shipment of the goods, and it was immaterial whether the breach was attributed to an omission to ship goods such as the contract called for, or to deliver them. These remarks were not pertinent to the facts of the case, and subsequent portions of the judge’s charge directed the attention of the jury to the real points in the case. I think the jury could not have understood that a breach of the contract arose from the non-shipment of any goods, whén it was undisputed that the defendants had received goods which had been shipped, and had tendered them to the plaintiffs. If the proposition meant that a refusal to send the goods sold forward for delivery was a breach of contract, it was only another form of stating that a refusal to deliver was a breach thereof. The remarks already made, if correct, dispose of the other exceptions taken to the judge’s charge, and to his rulings upon the numerous requests to charge, presented by the defendant’s counsel, as well as those taken to the rulings upon the trial.
The judgment should be affirmed, with costs.
Barnard, P. J., and Dykman, J., concurred.Judgment affirmed, with costs.