The Central Bureau of Engraving, Appellant, v. The J. W. Pratt Company, Respondent

MacLean, J. (concurring).

In this action of the plaintiff to recover for services rendered and materials furnished of the reasonable value and for the agreed sum of $157, the agreed sum being proven and the reasonable value being testified to without contradiction of either, the plaintiff was entitled to recover. The defendant interposed a counterclaim for $11.6 for damages for breach of an express warranty. While the contract herein was executory, the defendant had the right upon warranty broken to reject the goods, when tendered, as not answering the bargain; or, it might receive and accept by its retention and rely upon its only right to damage, if any, for the breach of an express warranty (Brigg v. Hilton, 99 N. Y. 517), but to no more than its claim of $116. Receive and accept it did, for return of part is not rejection, but, proving no damage, it was entitled to no judgment.

The judgment must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Present — Gildersleeve, MacLean and Seabury, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Per Curiam.

The action is for labor and materials in the making of a four color reproduction of a subject called “ The Candy Girl,” which defendant wanted for a customer. The defense is that it was guaranteed to be first class, but was inferior and refused by the customer, so that defendant was obliged to get the work done elsewhere. The justice found for defendant. Plaintiff appeals. It appears that defendant returned the plates to plaintiff, but retained the progressive proofs and drawings, which were subsequently used by another engraver to make a set of plates for defendant. The latter, while retaining and using the drawing, could not rescind the contract by returning the plates only, as the contract was an entire one and included all the work and materials done and furnished by plaintiff in the making of said reproduction of the subject known as “ The Candy Girl.” The rule is that, where a defendant relies upon a breach of warranty in an action for the price of an article, he must show a rescission of the contract by returning or offering to return the article and all benefits received under the contract.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.