By the Court,
In this case the referee has found that, in pursuance of the two contracts introduced in evidence upon the trial, the plaintiff sold and delivered to. the defendants, and the defendants received under the contracts, 1000 tons of hay at §10 a ton, and 238 tons at §11 per ton, and rendered a judgment in accordance with this finding, in favor of the plaintiff.
It is insisted by the defendants’ counsel that a considerable portion of the hay sent to Hew York was not of the quality provided for by the contracts, and was not “good, merchantable shipping hay,” within the meaning of that phraseology. Several witnesses were introduced by the defendants to prove that this expression included timothy and red top, only, and excluded clover; and that the plaintiff was not entitled tc recover contract prices, which the referee allowed for such hay,
The question as to what was included or excluded from the terms employed in the contracts, was, on the trial, open to evidence for the purpose of showing what was intended by the use of the words employed. It appeared that at the time the contracts were made, clover was mentioned as among those kinds of hay answering the description of good, merchantable shipping hay. The plaintiff claimed, and his evidence tended to show, that the hay delivered and received was substantially of the quality which the contracts called
This view of the question disposes of the main point raised by the defendants; but even if upon that point there is still room for doubt or discussion, I am inclined to think that the plaintiff having delivered the hay at Albany, according to the conditions of the contracts, as the referee has found, and the defendants having accepted it with a knowledge of the deficiency and without objection, at the time, they have waived a right to urge that the hay did not conform to the contract, and to claim a deduction from the price on that account. (Pars, on Cont. 326, 327. Sprague v. Blake, 20 Wend. 61. Hart v. Wright, 17 id. 277.)
The hay was to be delivered at Albany, and was there delivered, as is conceded, to the agents of the defendants. There is some evidence to show their acceptance of it, thereby assenting to the fact that the terms of the contracts, on the part of the plaintiff, had been carried out and fulfilled, and that the defendants were satisfied. The referee has found against the defendants on this point, and there is certainly no such preponderance of evidence in their favor as would justify an interference with his decision for that reason.
It is no .answer to say that the hay was rejected on its arrival in New York, and stored for the plaintiff. The finding of the referee settles the question the other way; and it was too late afterwards to claim that it did not answer the contracts.
It is said that the referee manifestly erred in receiving evidence to vary the written contract, as to the weight of the bales and as to the quality of the hay. I think no improper evidence was received as to the quality of the hay, and that it was competent to show that the defendants waived the
The whole matter involved in this case was mainly a question of fact, in regard to which there was a dispute, and the evidence was certainly conflicting. There was no error committed on the trial, and the judgment entered on the referee’s report should be affirmed with costs.
Peckham, Miller and Ingalls, Justices.]