87 A.D. 462 | N.Y. App. Div. | 1903
Lead Opinion
At the trial of this action the complaint was dismissed, substantially on the ground that the cause of action therein set forth was not proven. The plaintiff, a corporation, sought to recover the purchase price of merchandise which it alleged it sold and delivered to the defendants. A contract between the parties was proven. It consisted of an order in writing given by the defendants to the plaintiff, and which, among other things, contains the following: “ Please board the s/s Allianca,’ Pier 57, H. R. on or before Oct. 6th, goods marked and numbered as follows: ” The articles ordered are then set forth in a schedule. The plaintiff accepted the order} packed the goods in boxes, and within the required time carried them to the steamship at pier 57, Horth river, where acceptance was refused by the defendants through a Mr. Calvert, who directed the plaintiff’s truckman to take them back, and declared that they would not be received. There was no actual delivery of the goods by a transfer of possession from the plaintiff to the defendants or to the carrier. Under those circumstances, the plaintiff sued for goods sold and delivered. There can be no question that an actual delivery was not made. At the close cf the trial, by consent of the parties, the case was taken away from the jury and the issues were left to
It is now contended by the plaintiff that it is entitled to recover for goods sold and not in fact delivered—not upon the ground that there is in the proofs a good excuse shown for non-delivery, but upon the theory that there was in law a delivery sufficient to authorize a recovery under the allegations of the complaint. If the question, were to be determined by a strict adherence to common-law rules of pleading, the complaint may have beén properly dismissed. Where goods are sold and delivered, the mode of recovering the price at. common law is by an action on the common count, which charges indebtedness for goods, chattels and effects sold and delivered to the defendant at his request. To support that action the plaintiff must prove delivery. In Outwater v. Dodge (7 Cow. 85) it was held that where a contract to deliver goods is unexecuted by a delivery, the vendor in a suit for the price must declare on the special contract and cannot. recover upon a general count for goods sold and delivered. (See, also, Bradley v. Wheeler, 44 N. Y. 495 ; Stearns v. Washburn, 7 Gray, 189; Hart v. Tyler, 15 Pick. 171.)
The common-law rule proceeded upon the theory of a failure to prove the cause of action alleged in the declaration, but - now in an action for goods sold and delivered, the seller may upon tender of performance upon his part and demand of payment, and refusal of the purchaser to perform, treat the property as belonging to the defendant and sue for a recovery of the price agreed to be paid. (Mason v. Decker, 72 N. Y. 596.) He is entitled to recover the price when he shows not only that the purchaser failed to pay, but that he himself was ready and offered to deliver the goods. (Dunham v. Mann, 8 N. Y. 513.)
In the casé at bar the merchandise was selected in accordance with the order given, and that order was for specific goods. They were packed, sent to the appointed place of delivery and tendered.
The only difficulty in the present case consists in the fact that counsel on both sides left it to the court to determine whether as matter of law there was a delivery, and thus it seems that plaintiff’s counsel was content to have the fate of the case depend upon the decision of that point alone. But the learned trial judge has considered the whole case, and has held that the complaint was not sufficient as one to recover the price of merchandise under an agreement of purchase and .sale, and he says that if the action had been brought in that form, it may be that the plaintiff would have been entitled to judgment. We think that as the proofs made out such a case the allegations of the complaint were sufficient, there being no claim that the defendants were misled, and that the learned judge should have directed judgment for the plaintiff, and that he was not debarred from doing so by reason of the submission of the one question to him for determination. The judgment is on the merits.
Ingraham, Hatch and Lahghlin, JJ., concurred; Van Brunt, P. J., dissented.
Dissenting Opinion
I think the judgment was correct in view of the case as submitted to the justice for decision. I dissent.
Judgment reversed and new trial ordered, with costs to appellant to abide event.