(after stating the facts as above). It may he that the defendant has suffered an injustice at the hands of the jury, but we have nothing to do with the questions of fact involved, and must assume that the purchase price agreed upon included the discount upon the “direct” sugars and Lamboin’s price to tho plaintiff on the Lamborn sugars. We have to do, therefore, only with the plaintiff’s performance, and the supposed rights arising from its failure to perform.
We think that the judge correctly overruled the defense and dismissed the counterclaims. There was clearly no evidence which could support a charge of fraud. The defendant’s delivery “f. o. b. refinery” under the original sale was indeed complete, when tho bags were delivered to the carriers, which later mixed the parcels. The defendant was not concerned with whether each buyer got his own bags, and we máy assume fpr argument that it would have been within its rights in refusing any hags tendered by the plaintiff on the resale, which were not parts of the original parcels marked for it. However, that is very far from saying that, because the plaintiff knew that the bags were those delivered to other buyers, it was a fraud to tender them upon the resale. The bags, with one or two exceptions, were all of the defendant’s manufacture, and bore the marks upon them of their original destination, so as to be at once distinguishable by the defendant. So far as appears, they contained exactly the same kind of sugar as the hags marked for the plaintiff, and the plaintiff very naturally treated them as fungibles. If it wished to prove a fraud, the defendant had the burden of showing that there was some substantial difference between the bags, and that the plaintiff knew that there was; in short, that it meant to palm off sugars which, if the defendant knew it in time, would be rejected. There was not the slightest ground in fact for such an inference.
Finally, it is entirely clear that' tho defendant did not object to the delivery on any such ground after it learned the truth. Admitting that the payment was made before it had opportunity to examine, the only suggestion of protest is the language of Mr. Bigelow, the defendant’s counsel, to Campbell, tho plaintiff’s president, on October 27th, that it looked to him as though Campbell had been getting money under false pretenses, and that he had better get a lawyer. This was made during tho controversy over the Lamborn sugars, and was followed by the advent .of Campbell’s lawyer, to whom, so far as appears, the assertion was not repeated. The negotiations continued without any further suggestion of the sort, and the defendant made no claim for damages until long afterwards. It was a mere makeweight, thrown out in the course of the controversy, designed for such effect as it might have in negotiation; certainly not intended as a serious assertion of so serious a charge. Moreover, as we shall show, when the very question was presented in respect of the Lamborn sugars, the defendant by its conduct conclusively showed that the mixing of the bags was a matter of entire indifference to it.
As to the breach of warranty, the cáse stands on a little different basis. We pass any question as to whether any damages were proved, the defendant having failed to show that-the hags resold were different in value from those originally delivered. It is enough that the testimony just quoted of Mr. Bigelow is tho only evidence which can be remotely thought to be “notice to the seller of tho breach” of warranty, within section 130 of tho New York Personal Property Law (Consol. Laws, c. 41). It certainly did not satisfy that section. American Mfg. Co. v. Fleet Corporation, 7 F.(2d) 565 (C. C. A. 2). Thus there was no question of fact to leave to a jury on either the defense or the counterclaims.
The remaining question is of the plaintiff’s performance of its contract to redeliver Lamborn sugars. Strictly this contract required the tender of bags which had been marked for the plaintiff and delivered by tho ■defendant to the carriers for it. This to a large extent the plaintiff did not perform. It was, however, at once apparent to the defendant, upon inspection of the bags, which of them had originally been delivered to bther consignees, and had by some mistake been mixed. The plaintiff’s tally was correct, but the identity had been lost in transit from tho refinery. These bags the defendant, *170however, accepted as its own by the contract of November 4th, knowing that the plaintiff had received them as a good delivery. Moreover, having with full knowledge accepted them, it made no complaint, sold them, and for many months thereafter did not suggest that which could be excused, and which the ■ defendant necessarily did excuse by its acceptance. Section 129, New York Personal Property Law. For this conclusion we need not, therefore, rest upon the language attributed to Mr. Spreckels by the plaintiff, or upon the theory of the trial judge that the original acceptance by the plaintiff of sugars delivered to other consignees affected the defendant’s right to insist upon the redelivery of the plaintiff’s own bags.
While, however, this assent was conclusive, so far as concerns the substitution of the bags accepted by the plaintiff for those delivered to it, it does not answer the other objection that the plaintiff has not proved under which of the Lambom contracts it had received the several bags. The matter is of importance only as respects the May contract, upon which the plaintiff returned 1,800 bags, under claim that that number of the 2,400 received by it upon that contract were defective. It had to show that the returned bags were part of those so received, and it may be assumed arguendo that upon that point the proof from its own records broke down.
As to six hundred of these the documents leave no doubt. Exhibits 94(7) and 108(5) are invoices sent to the plaintiff by Lambom on August 17, 1920, and paid by it. These together call for 2,400 bags, at 25% cents, and completed the delivery under the May contract; there being no other sale on which they would fit. They bore order numbers 50465 to 50468, inclusive. Exhibit 29, the third of those sheets which the defendant prepared as a schedule of the bags reshipped and accepted by it,'shows that 600 had order numbers 50465, 50467, 50468 and that they were marked for the plaintiff.
This does not, however, cover the remaining 1,200 bags. As to these the proof is that the plaintiff sent to Lambom invoices for each carload of sugars after it had been reshipped. Some of these are in evidence. Exhibits 36 and 38. Further, it was undisputed that, when Lamborn received these invoices, it at once sent to the defendant copies of their substance. Troup, a member of Lambom & Co.,. and Moora, an employee, both so swear, and Spreckels admitted that, although the invoices first went to Lambom, they then in turn came to the defendant, though he personally had never seen them. Therefore, even though the plaintiff’s assertion that it sent copies direct to the defendant was untrue, the defendant knew what the plaintiff claimed upon each carload. Exhibits 35, 37, and 39 are instances of Lambom’s copies or debit notes. The contents of all carloads shipped to the defendant are contained upon Exhibit 29, so that the defendant knew just what bags the plaintiff was claiming to have been received by it under the May Lamborn contract, and the prices which it had paid Lambom for them.'
Furthermore, 600 of the returned bags had been originally consigned to Rasmussen under order 50463, 177 to Bierhaus under order 50469, and 423 to Seton under orders 50459 and 50460. All these were routed to Illinois and Indiana, near the plaintiff’s warehouses. The orders were marked serially in order of their receipt by the sales department, and there was some ground for assuming, from the closeness of the serial numbers to those of the May contract, that the 1,200 bags so returned had been mixed en route and delivered under the May contract. At least, this gave color to the plaintiff’s assertion of that fact, though it would not alone prove it.
The parties having this knowledge and these assertions before them, and, as we must assume after verdict, having made a contract by which the defendant was to pay what the plaintiff had paid Lambom, the judge was justified in leaving it to the jury, as he did, to say whether the defendant had not by its conduct accepted the plaintiff’s allocation. True, there was no complete estoppel, as there was as to the substitution of other bags for 'those delivered at the refinery. The evidence does not show positively that the defendant ever knew whether the 1,200 bags had in fact been delivered under the May contract. But it did have grounds for so supposing, as we have shown, and. its continued silence and sale of the sugars in the face of the plaintiff’s allocation and claim was sufficient evidence for a finding that it agreed not to press for further proof.
The charge respecting the possible obligations of the defendant to Lambom, if doubtful, would not in any event justify a reversal.
Judgment affirmed.