130 N.Y.S. 132 | N.Y. App. Term. | 1911
The defendant agreed to sell the plaintiff a concrete mixer, situated at the United States government station at West Point, N. Y. The plaintiff agreed to buy it and paid $.50 on account and gave defendant a note for $700, the balance of the purchase price. The plaintiff went to West Point to get the mixer, and those having it in charge refused to deliver it to him. The mixer weighed 2,500 pounds and was securely fastened to the ground. The plaintiff brought this action to recover the amount paid for the mixer and alleged a breach of the contract on the part of the defendant by reason of his failure to deliver the mixer to the plaintiff. Upon these facts being proved, the trial court dismissed the complaint upon the ground that there was no implied warranty of delivery. This ruling presents the only question raised by this appeal.
In every contract of sale the law implies a duty on the part of the seller to deliver the thing sold, unless there is an agreement to the contrary. Mechem Sales, § 1118. When the subject-matter of the sale is in the possession of the seller, this duty is always implied. When -the goods are not in the possession of the seller and the seller affirms title to them, the same implication exists as would exist if the seller had actual possession of the goods. McCoy v. Artcher, 3 Barb. 323. There was nothing in the evidence to show that there was any agreement on the part of the seller not to deliver the mixer. It did, however, appear that the defendant affirmed that he had title to the mixer and agreed to sell it to the plaintiff. Under these circumstances, we think that the seller was obligated to deliver the mixer to the buyer and that, in
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.
Guy and Bijur, JJ., concur.
Judgment reversed.
