(dissenting):
The plaintiff owns the exclusive right to sell within the State of New York “Johnson’s milk cooler,” a patented utensil for the use of manufacturers of butter or cheese. Each cooler consists of (1) a pan for milk; (2) a vat for water; (3) a frame supporting the pan and vat. The pan is made of cast-iron, enameled on the inside and used for storing milk until the cream rises to the surface and is removed. The vat is made of cast-iron, encases the pan and is used for storing water, so as to keep the milk at a proper temperature. The frame is made of cast-iron and supports the pan and vat. Four of these utensils are called a set — a set consisting of four pans, four vats and four frames. The defendants are manufacturers of agricultural implements at Ilion, New York. November 26, 1875, the parties to this action entered into a written contract, by which the defendants, for a sum agreed upon, contracted to furnish the material and manufacture, in a good, workmanlike manner, 200 sets of milk coolers with enameled pans, and deliver them to plaintiff at Ilion, New York. Each ten sets subject to inspection by plaintiff within five days after notice of completion. Under this contract defendants manufactured and delivered to the plaintiff 136| sets of coolers, with 547 enameled pans, which were accepted by the plaintiff and pronounced satisfactory, except as to some slight imperfections in the surface of the enamel, called “ pinholes,” which did not impair the practical usefulness of the pan. The pans above-mentioned were enameled by Joseph Parks, and are known as the “ Parks pans,” over which no question is raised in this action.
Afterwards, the defendants manufactured and delivered to the plaintiff sixty-three and one-quarter sets of coolers, with 253 enameled pans, for which the plaintiff paid $5,239.19. These pans were enameled by J ob B. Crowley, and are known as the “ Crowley pans.” After the Crowley pans had been in use for a short time, the enamel was softened by the fermentation of milk and proved *231worthless for the purpose for wliieh they were made. This action was brought to recover damages occasioned by this defect. When milk sours or ferments, lactic acid is developed. So far as it is disclosed by the evidence, enameled cast-iron receptacles for milk undergoing fermentation were never used prior to the invention and use of this milk cooler; or, if used, the use was so limited that the action of lactic acid upon enamel laid on cast-iron had never been observed, at least, so far as was known to the parties to this action. The referee found that the 253 pans were not manufactured “ in a goo d, workmanlike manner,” as stipulated in the contract. It is unnecessary to consider whether the stipulation to manufacture, “in a good, workmanlike manner,” is technically a warranty, or simply an executory promise; for, if broken, the defendants are liable unless the plaintiff is estopped from claiming damages by inspecting, receiving and retaining the coolers.
The first question is, whether the above finding of fact is sustained by the evidence ? Farmers who used the pans enameled by Crowley testified that after a few weeks use the enamel softened, became rough and the pans were thereby rendered worthless for dairying purposes. Anable, one of defendants’ employees, who was sworn in their behalf, testified that he tested, with lactic acid, the pans enameled by Crowley, and that under the test the enamel softened, became rough and could be scraped off; that the enamel was defective, and by reason of the defect that the pans were worthless for dairying purposes, was not disputed on the trial.
Was this defect the result of unskillful workmanship? It is alleged in the complaint that the pans enameled by Parks resisted the action of lactic acid and served the purpose for which they were designed. This allegation is admitted in the answer. Yan Dyke used pans enameled by Parks in his dairy eight years, and they resisted the action of lactic acid. Young used pans enameled by Parks in his dairy four years, and they -stood the test. Anable, defendants’ employee, testified that under the direction of defendants’ superintendent, he tested, with lactic acid, pans enameled by Parks and pans enameled by Crowley, and that the pans enameled by Parks stood the test, but those enameled by Crowley did not. This evidence seems to establish the fact that there were no insuperable difficulties preventing the production of enameled pans which *232would serve the purpose for which they were designed. Crowley testified that he informed Ross, defendants’superintendent, that the furnace in which the enamel was hardened, or fused upon the pans, was defective, and asked for a different one. Ross denied this, and testified that Crowley asked that changes be made in the furnace, and that it was changed as desired. Anable testified that soon after Crowley commenced work, Parks said that Crowley’s enamel “ would not stand, being too soft.” Gribson, one of defendants’ workmen employed on these pans, testified that Parks told him that Crowley’s enameling would not stand. Both testified that they told Center, plaintiff’s general agent, what Parks had said, and that he replied he would risk Crowley’s work. Center denies this. At folio 76 of the answer it is alleged that defendants’ agents doubted the ability of the pans enameled by Crowley to resist the action of lactic acid, and that they communicated their doubt to the plaintiff’s agent. If it be true that defendants’ agents did not communicate to plaintiff’s agent Parks’ statement, and if it be true that Crowley informed defendants’ superintendent that the furnace was unfit for the purpose, it goes far towards charging defendants with a negligent nonperformance of their contract. Whether Crowley was employed upon the request or recommendation of plaintiff’s agents, was a disputed question. The credibility of these witnesses was for the referee, and, assuming that the plaintiff’s witnesses testified truthfully, the defect was the result of unskillful workmanship and the finding of the referee cannot be set aside as contrary to the evidence.
It is urged that the plaintiff cannot recover because it inspected, accepted and retained the coolers without offering to return them. If a manufacturer, having agreed to make and subsequently deliver in a good and workmanlike manner articles designed for a known use, delivers articles not so manufactured, which are unfit for the use, the vendee may retain the articles and recover the damages. (Brigg v. Hilton, 11 Daly, 335; affirmed, 99 N. Y., 517; Hoe v. Sanborn, 21 id., 553; S. C., 36 id., 93; Norris v. La Farge, 3 E. D. Smith, 375.) Apart from the provision in the contract in respect to the inspection, the retention of the coolers, after discovering the defect, would not bar the plaintiff’s claim for damages. Tire contract provides: “ Each ten sets subject to the inspection of the party of the second part (plaintiff), within five days after notice of *233completion.” Under this provision the plaintiff inspected, accepted and paid for the pans enameled by Crowley.
It is conceded that when the pans enameled by Crowley were inspected and delivered, the parties to the contract knew of no test by which the durability of the enamel could be tested, and that the defect subsequently developed by actual use was a latent one. Anable, after describing the process of inspection, testified: “ At that time I did not know that anything further could be done for the purpose of obtaining a better knowledge as to whether the pans would answer the purpose or not.”
A manufacturer, under an agreement to manufacture in a good and workmanlike manner articles designed for a specific purpose, remains liable for latent defects arising from unskillful workmanship, notwithstanding the vendee’s acceptance of the articles after inspection or trial, under a clause in the contract of sale giving the vendee the right to inspect or try. (Bird v. Smith, 12 Q. B., 786; Heilbutt v. Hickson, Law R., 7 C. P., 438; 2 Benj. Sales [Corbin’s ed.], § 911, p. 792 and cases cited.) The effect of this clause was to pass the title of the accepted coolers to the plaintiff and the defendants became entitled to the purchase-price, subject to their continuing liability on their agreement to manufacture in a skillful manner. It will be observed that the contract does not contain an arbitration clause or a clause of that nature, nor does it provide that acceptance after inspection shall discharge the defendants’ agreement to manufacture in a good, workmanlike manner.
Several cases have been cited as bearing upon this question. Wyckoff v. Meyers (44 N. Y., 143) arose over a building contract which contained an arbitration clause, naming arbitrators,.and it was held that the certificate of the arbitrators was binding upon the parties. Glacius v. Black (50 N. Y., 145) also arose over a building contract, which provided: “That the materials to be furnished shall be of the best quality, and the workmanship performed in the best manner, subject to the acceptance or rejection of Edward "Wall, architect, and all to be in strict accordance with the plans and specifications which are signed by the parties of the second part, and form part of this contract.” The builders procured the certificate of the architect and sued for the contract-price, and it was held that defendant might recoirp his damages arising from a failure *234to do tlie work in. a workmanlike manner. This case was distinguished from Wyckoff v. Meyers, because of the absence of an arbitration clause. Bird v. Smith (supra) was cited with approval. McParlin v. Boynton (8 Hun, 449) arose over a contract to manufacture and deliver saws of a stipulated quality, subject to the inspection of the vendee. The saws were inspected and accepted, but were subsequently found not to be of the quality warranted. In an action for the price it was held that the defendants could not recoup their damages, upon the ground that the defects were of a character that might have been discovered by inspection. None of the cases above cited are referred to in the opinion. This judgment was affirmed (71 N. Y., 604) without an opinion, three of the judges dissenting. Bigler v. Mayor (9 Hun, 253) arose over a contract to furnish lumber and timber of a specified quality and size, “ subject to the inspection of the superintendent of repairs and supplies of the department of docks.” The plaintiff held the certificate of the superintendent, and upon the trial of an action for the purchase-price, the court held the certificate conclusive upon the defendant, unless the jury found that it was fraudulently given or obtained. This was held to be error and a new trial was granted, the court holding that the certificate was not conclusive, as the contract did not so provide. In this case Bird v. Smith (supra) and Glacius v. Black (supra) were commented upon and approved, and Wyckoff v. Meyers (supra) was distinguished, but McParlin v. Boynton (supra), decided by the same court at the preceding term, was not cited. The construction given to the clause under consideration seems to accord, in principle, with the rule declared in Brigg v. Hilton (supra), as it is difficult to see why a liability survives the acceptance and use of defective articles with an ample opportunity to inspect under an executory agreement to deliver articles of a prescribed excellence, and not survive inspection and acceptance under a like agreement containing a clause simply giving a right to inspect, which right the vendee has without the clause. (Pope v. Allis, 115 U. S., 363.)
The measure of damages is the difference in value between coolers manufactured in a good and workmanlike manner and those delivered. Plaintiff’s witnesses testified that the defective coolers delivered would have been worth the price paid, $5,239.19, had *235they been manufactured in a good and workmanlike manner, which evidence is undisputed. The plaintiff’s witnesses also testified that the defective coolers were worthless. The burden was then upon the defendant to show that the coolers were of some value. Defendants’ superintendent testified that the coolers “ were not entirely valueless for other purposes; ” that defendants used some of them for sinks and the remainder of the rejected pans were broken up as old iron, for which purpose they were worth about a penny a pound, and that he told plaintiff’s agent that they were good for nothing else. Assuming that.the defendants were liable, the damages were not excessive, and the correct measure of damagas was adopted. None of the rulings of the referee upon the admissibility of evidence being questioned upon the argument, they are not considered.
The judgment should be affirmed, with costs.
Judgment reversed anda new trial ordered before another referee, with costs to abide the event.