App. Div.] Second Department, October, 1913. stipulation be referable to the then existing law there could be no recovery, as the contract would be void, and the plaintiff upon its introduction would show that he had no cause of action. But did the manner of its performance violate the statute? Must plaintiff assert and prove the validity of his contract, and is it sufficient for the defendant to deny it, or may the plaintiff assume the continuance of the contract, and must the defendant plead that it has ceased? I think that the burden was not on the plaintiff. The contract was made by the parties in proper form. Hence it had a valid inception. It presumptively continued a valid contract, and as such the plaintiff sued under it to recover payment according to its promises. Hence all that he was obliged to prove was that he did the work and that payment was due. The defendant then denies the existence of the contract on which suit is brought, and asserts the disability of the plaintiff to receive and of the defendant to pay. The condition on which the contract may become void is subsequent, for the contract becomes a fact and loses its existence only on the happening of an event in the course of its performance. It would be a strange construction that would require a person enabled to make and so making a contract sanctioned by public policy to plead that he had not violated a general law of the State, and had not by any violation become unable to sue, and that his contract, once lawful, had not become vitiated. The stipulation is not material to the performance of the work to be done, but inheres in the capacity of the parties to continue their contractual relations in case of a transgression of public policy. Hence the defend、 ant, if it would have the plaintiff deprived of his ability to sue under the contract, should assert the disability and the reason for it. Did he not pay the prevailing rate of wages? Did he require men to work more than eight hours per day in cases other than of the extraordinary emergency enumerated in the statute? Whatever of such things were done in violation of the statute the defendant should point out. But the defendant is content to allege that plaintiff violated the contract by permitting or requiring men to work more than eight hours. But that is not necessarily a violation of the statute. For the statute declares that in cases he may work the men over eight Second Department, October, 1913. [Vol. 158. hours. Is the defendant referring to overwork in such cases, or in cases when such conditions did not exist? The statute makes two classes of cases, in one of which men must not work over eight hours, and in the other in which they may. It does not put the plaintiff in the wrong if by his connivance or will the men worked over the allotted time, but it is the occasion of their excess that qualifies the labor as a violation of, or obedient to, law. Things excepted from a statute are as if it were not enacted. A proviso avoids them by way of defeasance or excuse, it is said, and so it is urged that in the present statute the exception is a mere proviso that excuses the violation of the statute, and that it need not be negatived. But when a statute declares that men shall not be permitted to labor more than eight hours on work, but excepts occasions when they may, there is no presumption that by so working the contractor disobeyed the law or incurred penalty, and that he must go to court and primarily make excuses for doing the lawful act. The statute is penal in its nature; it tends to the forfeiture of important property interests; it is capable of arresting or preventing the progress of great public works, and the alleged offender at the bar of the court should not be compelled to show that the act was not a guilty one and to excuse it by manifesting the conditions under which it was done. Section 2143 of the Penal Law provides: "All labor on Sunday is prohibited, excepting the works of necessity and charity." An indictment that charged that a person labored on Sunday without stating that the work was not of necessity or charity would not state a crime. (Rowell v. Janvrin, 151 N. Y. 60; People v. Stedeker, 175 id. 57.) And yet the things within the exception furnish an excuse quite as much as does the emergency work in the present statute. I see no occasion for discussing People ex rel. Rodgers v. Coler (166 N. Y. 1) in the Appellate Division, or Village of Medina v. Dingledine (152 App. Div. 307). The judgment and orders appealed from should be affirmed, with costs. JENKS, P. J., BURR, CARR and RICH, JJ., concurred. Judgment and orders affirmed, with costs. App. Div.] Second Department, October, 1913. JOHN D. COLEMAN, Respondent, v. SIMPSON, HENDEE & COMPANY, Appellant. Second Department, October 3, 1913. - implied warranty - latent defects in goods purchased and resold - sale of seed oats. Where a vendor having received an order for seed oats to be resold by the vendee did not raise the oats, but purchased the same in the West and had it shipped directly to the vendee with an opportunity of examination before delivery and acceptance, and the vendee accepted and paid for the seed, he cannot recover of the vendor on an implied warranty because the oats when resold to others did not germinate properly, so that he was obliged to refund the money paid by his customers, the vendor having no knowledge of the latent defects. The general rule as to an implied warranty in the sale of goods is that, unless the vendor is the producer or manufacturer of the article, there is no implied warranty against latent defects, even if the vendor knows the purposes for which the goods are bought. APPEAL by the defendant, Simpson, Hendee & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 16th day of February, 1912, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 12th day of March, 1912, denying the defendant's motion for a new trial made upon the minutes. Scheyler C. Carlton, for the appellant. Morschauser & Mack, for the respondent. CARR, J.: In 1911 the plaintiff was a dealer in grain at Pawling, N. Y., and as a part of his business he sold oats to farmers for planting purposes. The defendant, a corporation, was engaged in the general business of selling grain at wholesale, generally in carload lots. It had an agent, one Merriam, who went about soliciting orders. In January of that year Merriam called upon the plaintiff and obtained an oral order for a carload of oats, which order was given by the plaintiff in manner as follows (using his own words): "I asked Mr. Merriam Second Department, October, 1913. [Vol. 158. to furnish me a car of extreme northern grain seed oats, that our people were cranks on seed oats, and I wanted him to give us something nice, and I was willing to give him one or two cents over the feed oats price. Mr. Merriam said he would see I had an extra fine car. That was all that was said that day. Mr. Merriam had been in the habit of going there to my place of business. And knew what I was doing selling seed oats and other things." Merriam transmitted this order to the defendant, who thereupon sent to the plaintiff a "confirmatory" letter, partly printed and partly written, in which the defendant confirmed a sale to the plaintiff of "1 Car .... Heavy fancy Clipt seed oats .... at 421⁄2" cents (a bushel), to be shipped "Feb'y 15th, or later. Terms: Usual." The defendant, as plaintiff well knew, did not raise the grain it sold, but simply purchased the same in the West, generally in the Chicago market, and had the carloads shipped directly from Chicago to its customers. The practice was to send along a bill of lading with the grain and afford the customer an opportunity to examine the cargo before delivery and acceptance. The defendant bought on the Chicago market a carload of oats for delivery to the plaintiff on an order for "fancy Clipt seed oats." On said order a carload of oats was shipped to the plaintiff at Pawling, where he received the same and stored the oats in his bins. He paid for the oats according to a bill rendered for "fcy. clip't seed oats." He sold to his various customers, farmers, for planting purposes some 1,300 bushels of the carload. It happened that the oats so sold to the farmers did not germinate when planted under ordinary conditions, and he was obliged to make good to his customers the moneys they had paid for the oats, and, as he claimed, he incurred obligations to said customers for their expenses in plowing and reseeding their lands. He brought this action to recover his losses on the ground that the defendant had warranted that the oats in question were suitable for planting purposes and could and would germinate under ordinary conditions of soil and culture. On the trial the court held that there was no express warranty and the case was submitted to the jury on the theory of an implied warranty that the oats were suitable for planting purposes. The defendant gave proofs that in the trade there were Second Department, October, 1913. App. Div.] well-known and simple processes for testing the germinating powers of the oats, but the plaintiff testified that he was ignorant of these processes and had been informed by Merriam, after the oats had been received by him, that they had already been tested, and that, therefore, he made no tests himself before selling the oats to his customers. The defendant had never seen the oats in question nor had them in its actual possession except as they were in transitu. They had been selected and shipped at Chicago as "fancy Clipt seed oats," according to the usual methods of the general grain business. The proofs were that the words "seed oats" were descriptive of large or heavy berries which had been cleaned of chaff and foreign seeds to fit them for planting. The plaintiff produced evidence to show that these oats had been "purified," that is, treated by fumes of sulphur to such an extent as to impair or destroy their power of germination, but, whatever treatment had been used was not done by or known to the defendant, and must have been done, if at all, before the defendant bought the oats at Chicago for delivery to the plaintiff. The primary question involved in this appeal is whether, under these circumstances, the law will charge the defendant with an implied warranty that these oats were suitable for ordinary planting purposes. The defect in the oats was latent. It was due to causes unknown to the defendant. The oats delivered were selected as "seed oats" and answered generally to the description of such, but their quality for planting purposes was inferior according to the plaintiff's claim. The general rule as to an implied warranty in the sale of goods is that, unless the vendor is the producer or manufacturer of the articles, there is no implied warranty against latent defects, even if the vendor knows the purposes for which the goods are bought. (Bartlett v. Hoppock, 34 N. Y. 118; Dounce v. Dow, 64 id. 411; American Forcite Powder Mfg. Co. v. Brady, 4 App. Div. 95; Cafre v. Lockwood, 22 id. 11; Reynolds v. Mayor, Lane & Co., 39 id. 218; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137.) There are several authorities in this State relative to the question of an implied warranty in the sale of seeds, but all of these, so far as an implied warranty as to the quality of the seeds was declared, |