smoking room not in controversy, with tiling furnished by the New York Belting & Packing Company, which was accepted by the owners of the steamers. It was the duty of the shipbuilding company to replace the tile, and it is entitled to be allowed the reasonable cost of replacing it. It is further entitled to be allowed such reasonable expense as you may find from the evidence it was reasonably obliged to incur in connection with the transaction, like freight, cartage, and storage of the old tile, which it offered to return to the Pennsylvania Company. It is entitled to be allowed the traveling expenses of Mr. Farr and Mr. Kirby and professional charge of Mr. Kirby for inspecting the Rochester in May, 1911, if you find from the evidence that the amounts expended thus were reasonable in amount, and were reasonably and properly incurred, in order to determine whether the claim of the owner of the Rochester was well founded, at the time, that the tile laid by the plaintiff on the Rochester was not in workmanship and material of the best quality.

"(6) If you find that the amount reasonably expended in removing the tile and relaying it to the satisfaction of the owners of the steamers, and in matters reasonably incidental thereto, exceeds, after allowing the plaintiff the contract price of the smoking room tile, the amount the shipbuilding company would have paid had the Pennsylvania Rubber Company fulfilled its contract, then the shipbuilding company is entitled to a verdict in its favor for this difference. In reaching a conclusion, interest should be allowed on each item from the time it was due or was expended."

In its charge to the jury the court said:

("The architect of the company, whose duty it was, under the contract made between the plaintiff and the defendant, to pass upon and accept or reject the job, accepted this job with all the rest of the work qualifiedly, that is, unless something should transpire afterwards that was then at that time unforeseen, that the ships would be accepted in the condition in which they were passed over, and among other things that were considered in the same light was the tiling, to

gether with all the other details going to make up the manufacture of the ships.)

"At this time the representations had been made, by those who were handling the tiling for the plaintiff company, that in time the tiling would expand, and that the color would come in proper manner and sufficient degree to please the parties for whom the tiling was being laid, and would be acceptable. It is the claim of the defendant company that this expansion did not take place, and that in the fall they notified the plaintiff company, and positively directed them to remove that tiling. The plaintiff company did not do so; and in the spring following the shipbuilding company, the defendant, claiming to do so at the request of the owners, removed the tiling, shipped it to Detroit and stored it here in this city, where it still remains.

"Now the claim of the plaintiff is that this was perfectly good tiling; that it was no more brittle than other tiling; that the color did not lack uniformity; and that the tiling did expand, and made as good a flooring as would comply with the contract madethat is, that it was of the best material and workmanship. (They did not contract that the tiling should be better than any other tiling. The contract was it should be equal to the best. It was to be good tiling, laid in good, workmanlike manner, and completed in such a manner as would answer the purposes for which it was laid.)

("It was not expected, perhaps, that it would be absolutely waterproof. Even water tanks that are supposed to hold water are not supposed to be absolutely waterproof and not leak a drop. Probably there is no tiling laid but what water will leak through somewhere.) But, substantially, I take it, it is expected to be laid in such a manner that it can be washed and cleaned, cleansed with water or liquid, without sufficient water going through to damage the deck below.

"The plaintiff further claims that this tiling did come up to this degree of quality, and was passed conditionally; that is, it was passed under the condition and accepted under the condition that it should comply with the terms of the contract. They claim that the parties complied with this condition, and that

it was virtually accepted by the defendant and should be paid for according to the contract.

"The defendant claims that it never did close up; that the seams, the several blocks, did not expand, and that the seams remained open to such an extent that water seeped through and onto the decks beneath and rusted the iron or steel plate where it was laid upon steel, and warped the boards that were laid upon the decking where there were boards just beneath the tiling; that it was unsanitary; that in the dining room there were particles of food, which were washed into the seams and remained in the seams and in time it became unsanitary, and that it was not properly laid or not properly manufactured and would not answer the purpose for which it was designed to be used.

"Now, so far as the color and the brittleness of the tiling is concerned, I do not think we are much interested in that. The plaintiff company seems to have been willing to remove all broken tile. They had some there for the purpose, and would have undoubtedly, if required to do so if the company had notified them-have removed the broken tile and substituted whole ones which they had for that purpose.

"Perhaps I may be wrong, but I fail to remember any testimony that it would have rendered the tile useless to the defendant on account of its color. They could have been passed over all right-those things. The matter of the color and brittleness may be considered by you only with reference to whether or not the tile was of the best quality-whether or not that was any evidence that the tile was manufactured in such a manner that it would not expand so as to fill up those spaces between the tile. And that is the crucial point in this case. Did the tiling on those two ships expand so as to practically close those spaces between the blocks?

"In order to be of the best quality of material, manufacture, and workmanship, I charge you that it was necessary that it should do so. If it did that, the plaintiff in this case is entitled to recover; if it did not, the plaintiff is not entitled to recover. That, as I stated before, is the crucial point in the case. The burden of proof is upon the plaintiff to show that it did. If the plaintiff has not shown that by a pre

ponderance of the testimony, then the plaintiff is not entitled to recover, and the defendant is entitled to recover. If the plaintiff has shown it, then it is entitled to recover the full amount of its claim, and the defendant will recover nothing on account of the claim of recoupment which it has put in."

Error is assigned upon the refusal of the court to give defendant's requests, also upon that part of the charge embraced in the parentheses.

1. The first point urged by appellant is that there can be no recovery for work not approved by the architects; and counsel cite Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207), and Fisher v. Adding Machine Co., 166 Mich. 396-401 (132 N. W. 101). It will be noted that the contract did not require a formal certificate of approval. It provided:

"Terms 30 days net, after completion and approval by architect, and acceptance by this company.'

Under the circumstances as detailed by the evidence, we think that it was a fair question for the jury whether the contract was performed by the plaintiff, and whether there was a rejection of the tiling before the boats were turned over to the owners. The defects complained of were obvious; and it has been held that if the defects are obvious, a failure to reject is equivalent to approval. 35 Cyc. p. 229, and cases cited. The approval of the architects could be waived by the defendant. In our opinion the cases cited by appellant are not controlling, but the real questions are:

(1) Was the contract substantially performed by the plaintiff?

(2) Did the defendant's conduct amount to a waiver of formal approval by the architects, and an acceptance of the tiling?

It is clear that acceptance may be express, or implied from circumstances, in such a case. The tiling

186 Mich.-21.

installed in these boats consisted of blocks about three inches across, of two shapes, which interlock with each other. The design was made by a combination of blocks of different colors. The laying of the tiling consisted in properly combining the colors to form the designs, and fitting the blocks around the edges of the surface to be covered. The tiling was not fastened to the floor, and, after being laid, the whole, or any number of blocks, could be removed, and new blocks substituted in their stead. The undisputed evidence is that the plaintiff offered to remove the tiling if unsatisfactory, but this offer was refused by defendant, and the boats were turned over to the owners, who paid the contract price for them. We think it was a fair question for the jury whether, by its conduct, defendant did not accept the tiling, and waive its right to stand upon the claimed failure of the architects to approve. Bowers Law of Waiver, p. 29; Brady v. Cassidy, 145 N. Y. 171 (39 N. E. 814).

It was denied by plaintiff that there was any consent given that defendant might use the tiling during the running season, and leave the matter open until fall. It is manifest that there was no warranty intended to survive approval and acceptance. The following authorities are applicable: Talbot Paving Co. v. Gorman, 103 Mich. 403 (61 N. W. 655, 27 L. R. A. 96); Eaton v. Gladwell, 121 Mich. 444-452 (80 N. W. 292); Buick Motor Co. v. Reid Manfg. Co., 150 Mich. 118 (113 N. W. 591); Gill & Co. v. Gaslight Co., 172 Mich. 295 (137 N. W. 690); Cheboygan Paper Co. v. Eichberg, 184 Mich. 30 (150 N. W. 312); Henderson Lumber Co. v. Stillwell & Co., 130 Mich. 124 (89 N. W. 718); Wolf Co. v. Refrigerating Co., 252 Ill. 491 (96 N. E. 1063, 50 L. R. A. [N. S.] 808); Orton v. Stone & Lime Works Co., 183 Ill. App. 370; Kingman & Co. v. Watson, 97 Wis. 596, 612 (73 N. W. 438), and cases cited; J. Thompson Manfg.