On Oct. 10, 1867, the parties entered into an executory contract for the purchase and sale of 3,000 barrels of crude petroleum, as per broker’s memorandum of sale. Of this quantity 1,000 barrels had been purchased by the. defendants from the Sterling Oil Works, in order to complete the contract. After an inspection made by •plaintiff's agent of all the oil, it was delivered, accepted *21and paid for. Plaintiff shipped it to Havre where, after further inspection, the 1,000 barrels that had come from the ■Sterling Oil Works was alleged to be of a quality inferior to -that called for by the contract, was sold at a diminished price, and the plaintiff sues for the difference in value. The case was referred and tried. The referee found in favor of the •defendants and plaintiff appeals.
There was no warranty on the sale, and plaintiff should Rave offered to return the oil before bringing suit (Reed v. Randall, 29 N. Y. 358).
The testimony is not sufficient to sustain an offer to return and a refusal to accept. Plaintiff testified that he told Lorn-hard the news from Havre about the oil, and asked his directions in the premises ; thUit Lombard answered, “ Tell them or write to them to do everything legally, in order that the ■claim may be well established against whom it may concern.” Lombard testified, “ I told him if I was in his place I would have the matter put in such a shape that the evidence would he legal. That was the best advice I could give him. He -asked what directions he should give to Havre; to that I •answered I had nothing to do; I did not tell him what to do.” Nor is the testimony sufficient to sustain the special agreement set forth in the complaint that defendants would indemnify plaintiff and pay him for any loss sustained. On the contrary, the only agreement proved was that of Oct. 10, 1867.
From the.alleged fact that the oil, after its transportation to Havre, was inferior in quality to that inspected and accepted by the plaintiff, he asks the court to infer that defendants are chargeable with a fraud in substituting other oil in place of that inspected. Upon the question of quality the testimony was conflicting, and the referee has found in favor -of the defendants. The judgment appealed from should be affirmed.
Charles P. Daly, Oh. J., and Robinson, J., concurred.
Judgment affirmed.