(dissenting.) This action was brought by plaintiffs, as manufacturers in England, to recover the “price” of a lot of 1,000 pounds of certain, woolen yarn, known as No. 260, spun by plaintiffs under an order from defendants, and the answer averred the same was not received and never accepted by the defendants. There was also a counter-claim on a previous lot of 500 pounds, paid for and resold by defendants, which was of a poor condition as delivered, whereby defendants suffered a loss. Before the second lot had been entirely manufactured and finished the defendants cabled to plaintiffs, previous to any shipment thereof, a “countermand,” i. e., “await further cable before shipping last 1,000 pounds ordered. ” Prior to the shipment.,plaintiffs also received a letter from defendants, to the same purport as the telegram. This countermand was not subsequently recalled. Notwithstanding, the plaintiffs, afterwards shipped said second lot of-1,000' pounds, which on its arrival here the defendants refused to take, and they did .not examine .it, as that would have necessitated their paying out the high duty thereon. . Such 1,000 pounds *407were then shipped back to plaintiffs, on the latter’s account. On the trial the court denied the defendant’s application to go to the jury, on the whole matter under the implied warranty of the contract to manufacture such yarn, as well as upon the said counter-claim, and also their motion, at the close of the whole case, to dismiss the complaint, on the ground that “delivery” had been distinctly forbidden before shipment of any of the 1,000-pounds lot, to which denial the defendants duly excepted.
The complaint made the transactions an arrangement to “manufacture for” defendants articles (not yet in use) of a certain sort prescribed. This is not a sale in prcesenti, within the statute of frauds, but an agreement to do work and supply the material thereto. Parsons v. Loucks, 48 N. Y. 17; Deal v. Maxwell, 51 N. Y. 652. In such cases there exists an implied warranty that the articles will be free from any latent defect growing out of the process of manufacture, and the rule of “caveat venditor” governs in respect thereof; but as to latent defects in the “materials” used, proof or direct inference of the manufacturer’s knowledge of such latter must be affirmatively shown on the vendee’s part. Hoe v. Sanborn, 21 N. Y. 552, approved in Bridge Co. v. Hamilton, 110 U. S. 114, 3 Sup. Ct. Rep. 537; Howard v. Hoey, 23 Wend. 350. However, a warranty of “fitness” of the ordered chattels for any special, known, or supposed use or purpose is not implied, but the same must be particularly bargained for. Bartlett v. Hoppock, 34 N. Y, 118. The title to the respective articles, of course, remains in such manufacturer until the legal “delivery” and approval of the finished article. Kein v. Tupper, 52 N. Y. 550, 553, 555; Tompkins v. Dudley, 25 N. Y. 273, 274. Meanwhile no action lies for the contract price. 52 Ñ. Y. 555. As regards the “counterclaim,” there was no proof offered, however, that the first lot as delivered was not made equal to the “sample,” No. 260; and such counter-claim was properly disregarded by the court, as unproven. Beck v. Sheldon, 48 N. Y. 365. But as to the second lot of yarn. Before any thereof had been shipped the purchasers duly stopped all further “shipping” of any more goods until further instructions from them. This also appears directly admitted on the face of the complaint. Hence the contract price and charges for shipment were thereafter not recoverable, as such stoppage of further performance was never revoked, (Smith v. Brady, 17 N. Y. 174, 188; Husted v. Craig, 36 N. Y. 221;) and consequently the only remedy of the manufacturer was a suit, not upon and in pursuance of the contract, but for the manufacturer’s “damages” sustained by reason of the vendee’s breach of the contract, through the loss of profits and other attendant injury. Messmore v. Shot Co., 40 N. Y; 427. For, when stopped, the manufacturer could legally go no further. Goodwin v. Kirker, 2 Hilt. 401. The price cannot be recovered, as the “contract price” is not divisible, and the whole agreement was not “performed” when further shipment was forbidden; and, as the yarn on hand or finished could not, thereafter, be rightfully sent off to the place of destination, it remained the manufacturer’s property, and if lost or destroyed he must bear the loss himself. Such stoppage has not been recalled. See Butler v. Butler, 77 N. Y. 472, 475, and authorities cited. The rule is laid down: “No title vests in him for whom a chattel is to be manufactured till it is finished and properly delivered and approved, or sufficiently submitted for approval.” Andrews v. Durant, 11 N. Y. 35, 40, 45. To same effect, Atkinson v. Bell, 8 Barn. & C. 277; Merritt v. Johnson, 7 Johns. 473. And, therefore, no action for the “price” accrues until then. Kein v. Tupper, 52 N. Y. 555. And this is so, although the manufacture (in Europe) of the whole goods was not countermanded, but only their shipment was stopped. The like principles must here apply. The contract sued on, providing for a delivery at a distant point from Europe, was “ambulatory,” until appropriate delivery of the articles ordered. Evans v. Harris, 19 Barb. 417, 427, 428. The case on such rejected goods, as made out by the pleadings and the evidence, was solely one of a “refusal to accept goods” *408manufactured to order, and in such cases, ordinarily, the measure of damages, at most, is the difference between the market value of the goods at the time of the breach of contract and the price at which they were ordered; and a notice to accept was a necessary prerequisite to be given unto the vendee hereto, and the refused merchandise as manufactured might have been sold at auction, with a view of getting at such market value. Bigelow v. Legg, 102 N. Y. 652, 653, 6 N. E. Rep. 107; Myers v. De Mier, 52 N. Y. 647, 648; Messmore v. Shot Co., 40 N. Y. 422, 427; Beebe v. Dowd, 22 Barb. 255. No notice to defendant of such auction sale would be required. Messmore v. Shot Co., 40 N.Y. 422.
Furthermore, after the notice to “stop” all shipping until otherwise directed, .the manufacturer could not throw upon the vendee any charge or expense for or toward shipment or transportation of any of the articles, although impliedly permitted to “finish” their “manufacture.” Dillon v. Anderson, 43 N. Y. 239, 240; Hamilton v. McPherson, 28 N. Y. 72 For no tender was necessary. Lawrence v. Miller, 86 N. Y. 132, 137; Blewett v. Baker, 58 N. Y. 611; The .verdict is, therefore, erroneous, and the error is the result of a direction by .the court. The cases of Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. Rep. 335, and Norton v. Dreyfuss, 106 N. Y. 90, 12 N. E. Rep. 428, do not apply herein, because the merchandise sent over was not at all retained, as its transmission from Europe had been countermanded, while the contract was still “executory” and before any “shipping” took place. See 48 N. Y. 366. The action .was brought and tried on a wrong theory of a claim of the “price” as'on an executed agreement, instead of suing for the plaintiffs’ “damages” brisen from the continued rejection of the goods ordered and manufactured;'-'and the proofs were utterly insufficient to allow a recovery on the latter th'ebry; and, therefore, I am for reversal of the judgment appealed from. Finally, the question, as regards the intended rejection or acceptance of the goods'on the facts adduced, was a matter entirely for the jury. There should; fot'the reasons stated, be a new trial. '