¶1The evidence is abundant that the roller shades, sold by plaintiff’s assignor to the defendant, did not come np to the contract standard. It. also appears that when they were examined by the defendant, after their delivery, he objected to them on that ground, and called upon the plaintiff .to replace them with shades of the character and quality contracted for. The position taken by counsel for the defendant is that while it is true that the shades continued in the. defendant’s possession and were never actually returned to plaintiff’s assignor, they still remained the property of the latter, subject to his order and the performance by him of his promise to replace them as above stated. Had the defendant persisted in this attitude, he would have continued secure in his position of resistance to the demand made upon him for the contract price, but he did not do so; for it is conceded that he subsequently sold the houses in which the shades had been placed, and specifically agreed to and did sell and transfer the articles in question to the purchaser. This constituted an abandonment of his former position, and was an acceptance of the shades, which thereupon established his liability for the contract price. Wiles v. Provost, 6 App. Div. 1.
¶2The court below, therefore, erred in dismissing the complaint, and the judgment should be reversed.
¶3Gildersleeve and Giegerich, JJ., concur.
¶4Judgment reversed and new trial ordered, with costs to appellant to abide event.