187 A.D. 555 | N.Y. App. Div. | 1919
The complaint, which at Special Term has been held insufficient on demurrer, purports to set forth a cause of action to recover the agreed purchase price of 6,000 pounds of aminil sky blue dyes. That the action is not one to recover damages for breach of contract is very apparent from the form of the complaint, which omits any allegation of
1. Quality: “ guaranteed to be equal quality as your last shipment.”
2. Price: “ $3.80 per pound f. o. b. New York.”
3. Package: “ packed in 100 # good, strong export barrels ” (modified to 500-pound barrels, instead of 100-pound barrels).
4. Shipment: “before 15th of October.”
5. Marks: “ DN-401-Kobe, Yokohama No. 1 up.”
6. Destination: “ half Kobe and half Yokohama.”
7. Samples: “ two ounce bottle shipping sample is to.be presented * * * in duplicate duly sealed and stamped.”
8. Weights and Measurements: Gross to be furnished when “ ready for shipment.”
It is alleged that plaintiff accepted the order and “ promised defendant to sell ” and deliver said dyes upon the terms and conditions stated in said order. Thus far the complaint sets forth a contract to sell, as distinguished from a sale. (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 82, as added by Laws of 1911, chap. 571.) It is plain that at the time the contract to sell was closed the goods in question were unascertained. Any 6,000 pounds of goods described would answer the requirements of the contract, whether they were then on hand or to be manufactured by the seller, or to be acquired by him from others. Not only were these not specific goods, but the contract was not one to sell an undivided share of goods or an undivided share of a specific mass. (Id. § 87, as added by Laws of 1911, ehap. 571.) Under this contract to sell unascertained goods, no property in the goods would pass until the goods were ascertained. (Id. § 98, as
“Fifth. Plaintiff was at all times, ready, able and willing and duly offered to perform all the terms and conditions of said order and agreement on its part to be performed, and prior to October 15th, 1918, duly asked defendant for instructions for the shipment of said dyes, and defendant thereupon notified plaintiff that it accepted said dyes, but that it was not then convenient for defendant to receive more than 4,000 pounds thereof, and that within a few days it would give plaintiff instructions for the shipment thereof, and requested plaintiff to hold the balance of said dyes for it until further order.
“ Sixth. Plaintiff agreed so to do, but defendant has since failed and refused to give plaintiff instructions for the shipment of any part of said dyes, and on or about December 2nd, 1918, defendant notified plaintiff that it cancelled said order and agreement, and would not receive or pay for any part of said dyes, and it has since refused and still refuses so to do.
“ Seventh. By reason of the premises, the sum of $22,800 is due, owing and payable by the defendant to the plaintiff, no part of which has been paid, although payment was duly demanded prior to the commencement of this action.”
It will be observed that although this is an action for the price, there is no allegation of a sale, or that title passed, or that the goods were ascertained, set apart and held for the defendant by the plaintiff. The elements of a cause of action for the price of goods are set out in section 144 of the Personal Property Law (as added by Laws of 1911, chap. 571). To maintain an action under subdivision 1 thereof, it is essential that the property in the goods shall have passed to the buyer. Subdivision 2 is clearly inapplicable, for the price was not payable “ on a day certain, irrespective of delivery or of transfer of title.” The case is not within the terms of subdivision 3, which permits a suit for the price “ although the property in the goods has not passed,” for it is not alleged that the goods could not readily be resold for a reasonable price and that the seller, after offering to deliver the goods and the buyer had refused to
It remains to be seen whether it can clearly be inferred as a fact from the allegations in the complaint that at some time property in the goods did pass to the defendant. Plaintiff claims this inference from the allegation that after plaintiff’s request for shipping directions defendant “ notified plaintiff that it accepted said dyes.” Plaintiff relies largely upon section 129 of the Personal Property Law (as added by Laws of 1911, chap. 571) dealing with “ what constitutes acceptance.” I think this section lias reference to delivered goods, and is to be read' in connection with section 128 (as added by Laws of 1911, chap. 571) pertaining to the same subject-matter, just as “ acceptance ” as defined in section 85 (as added by Laws of 1911, chap. 571) has reference to the Statute of Frauds. Irrespective of this, plaintiff is clearly right in its contention that acceptance may precede delivery (Williston Sales, 844), and that where the goods are so ascertained as to be capable of acceptance by notification,
In my opinion the complaint, as one to recover the purchase price of goods sold, is insufficient upon its face and the judgment and order sustaining the demurrer should be affirmed, with costs, with leave to the plaintiff to serve an amended complaint within twenty days upon payment of said costs and ten dollars costs of motion at Special Term.
Dowling, Page and Smith, JJ., concurred.
Upon demurrer to a complaint for insufficiency it is our duty to see whether any cause of action is set forth. I am of the opinion that facts are stated sufficient to constitute an action for damages for breach of contract. The amount sued for is not controlling. But as appellant insists that its cause of action is for the purchase price I agre,e that such a cause of action is not sufficiently alleged.. Therefore,,
Judgment and order affirmed, with costs, with leave to plaintiff to serve amended complaint on payment of said costs and ten dollars costs at Special Term.