(after stating the facts.) The question of plaintiffs’ co-partnership is not seriously contested, as defendants make no mention thereof in their brief. It is, in my opinion, practically admitted by the allegations •contained in the answer, in which they speak of their dealings with the plaintiffs. The motion made to dismiss the complaint when the plaintiffs rested was properly denied. The goods had.been manufactured at defendants’ request, and they could not, by declining to receive them, deprive the plaintiffs from recovering the contract price. At the close of the case the motion to ■dismiss was renewed, and defendants’ counsel asked leave to go to the jury upon the question as to whether the goods were shipped under an implied Avarranty under the contract to manufacture; also upon the counter-claim of •a breach of the implied warranty. These motions were severally denied, under exception.
This was an executory contract of sale, to manufacture a certain article not theretofore in existence. Ho warranty of quality was given at any time. The goods ordered were a certain number of pounds of yarn, known as Ho. 260, —merely descriptive,—designating the article desired. Five hundred pounds .of this yarn were shipped to, received, and paid for by the defendants. These ■ goods were never returned or offered to be returned to the plaintiffs, and, there ■having been no collateral warranty or agreement as to quality, the defendants- are conclusively presumed to have acquiesced, and may not thereafter complain of-inferior quality. Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. Rep. • 335. Hor was there any warranty of quality as to the 1,000 pounds ordered, .shipment.whereof was interdicted by the defendants. They were nevertheless sent to Hew York, but were reshipped by the defendants to England, not having been opened or examined by them. They relied upon their proof of the inferiority of the 500 pounds to show that the 1,000 pounds were probably ■ of the same quality. But, as the proof of inferiority, if any existed, in. the -yarn delivered and paid for, could not be established on the trial, because no -warranty was proven, and it being beyond the power of the defendants to return the goods, there is nothing before us from which we might conclude that the 1,000 pounds returned unexamined were inferior, and not exactly as ordered, to-wit, yarn Ho. 260,—a proper merchantable article. For this reason there .was nothing to be submitted to the jury upon the question of warranty, express or implied. The counter-claim of the defendants is inadmissible." The -500 pounds were received at defendants’ store, where they removed 20 or 30 .pounds from the baie in which the yarn was packed, and forwarded the balance to a Mr. Kitson, to whom they had sold the 500 pounds. Mr. Kitson had the yarn dyed, and attempted to manufacture it into cloth. He asked for -and Avas allowed by defendants $180 to $200 by reason of the condition .of the yarn. This is the basis of defendants’counter-claim. By the decision in Iron Co. v. Pope, supra, it is manifest that unless there be a warranty as to quality the vendee cannot retain the goods and recoup any damage he may have suffered by reason of unsoundness or inferiority as against the price agreed to be paid. ■ The goods must be returned or paid for. A different rule applies ■where a warranty of quality was given. In such a case the purchaser may ■either return the goods and rescind the contract, or retain them and recover •any loss he may have sustained by the breach of the warranty. Norton v. Dreyfuss, 106 N. Y. 90, 12 N. E. Rep. 428; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. Rep. 51. So, also, if. the goods are to be used for a specific purpose, *406if that purpose be communicated to the manufacturer, a warranty to that extent will be implied. In this case the evidence discloses that the defendants could have ascertained any defects in the yarn if they had examined it in this city before forwarding it to their vendee in Philadelphia. But they neglected to do so, and relied upon the examination to be made by Mr. Kitson, to whom they had sold the yarn. The allowance made by the defendants to Mr. Kit-son is therefore not a proper subject of counter-claim as against the plaintiffs.
The exceptions taken to the exclusion of the testimony of Mr. Kitson concerning his examination of the yarn after the sale to him, and its condition upon his receipt thereof, and after the same had been dyed, are equally untenable. For that became immaterial after the defendants had put it out of their power to return the goods to the plaintiffs. Nor was it competent to show, by. analogy, that the 1J000 pounds returned to plaintiffs unexamined, were not what had been contracted for. While the 500 pounds may have been inferior, that of itself would be no proof that the 1,000 pounds were equally bad. The questions were consequently properly excluded.
The form of the action is assailed. It is conceded that this is not an executed contract of sale and delivery. It is an agreement to manufacture, and therefore executory in its nature. Parsons v. Loucks, 48 N. Y. 17; Cooke v. Millard, 65 N. Y. 352. The plaintiffs, before they can recover from the defendants, must show that they have performed everything that is to be done on their part to complete the sale and transfer the ownership of the thing sold, to the purchasers, and place it at their disposal, so far, at least, as to enable the latter to obtain possession of it, and deal with it as they may think fit, on payment or tender of the price. 2 Add. Cont. 946; Smith v. Chance, 2 Barn. & Ald. 753. All this has been accomplished by the plaintiffs. The yarn was. manufactured, and was not shipped immediately, because of the defendants’ cablegram not to ship until further notice. It was held five weeks, and then, delivered to a common carrier at Liverpool, as all the previous shipments hadi ' been made, and the invoice and shipping documents mailed to the defendants. Nothing more remained for plaintiffs to do. And, no legal ground, appearing for the non-acceptance of the goods by the defendants, the plaintiffs were entitled to recover the contract price. In Butler v. Butler, 77 N. Y. 472, the plaintiff had not fully performed his agreement, and in that case it was properly held that he could not recover on the contract, but must sue for its breach. Here the contract was performed, and the defendants cannot elude payment by simply declining to receiveand accept the goods manufactured. The judgment and order appealed from should, therefore, be severally affirmed, with, costs.
McGown, J., concurs.