Opinion
March, 1918.
Williams, Folsom Strouse (Arthur D. Fisher, of counsel), for appellants.
Mullen Bloch (John A. Mullen, of counsel), for respondent.
The plaintiffs sue to recover a balance alleged to be due on a sale of certain white, black and colored ostrich feathers to the defendant. On the trial there was no question as to the making of the contract and the delivery of the goods. The defendant retained the white feathers, but rejected the others, because she claims such others were not in accordance with sample, in that they were imperfectly dyed. On this question of fact, it seems there is sufficient evidence to support a finding in defendant's favor.
The question of law arises, however, as to the right of the defendant to accept the white feathers and rescind the contract as to the others by rejecting them. It is insisted by the appellants that defendant was obliged to accept or reject the shipment as a whole; that, having accepted part, defendant is deemed to have accepted all. This is the rule where the shipment is of goods covered by a single indivisible contract. Brukenfeld v. Silver, 165 N.Y.S. 418; Mendetz v. Wood Co., 86 Misc. 52; Simon v. Wood, 17 id. 607.
The order in evidence is divided into four sections, each designated by a separate and distinct style number. White, black and colored feathers are included in each section. It might not be error to hold that each section of the order is the basis of a separate contract. That, however, would not help the defendant, for, in retaining all the white feathers, she retained part of those enumerated in each of the four sections. It must, therefore, be held on the present record that defendant, as a matter of law, accepted the entire shipment.
GUY and DELEHANTY, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.