157 N.Y.S. 1104 | N.Y. App. Term. | 1916
The plaintiff on February 24, 1915, sold to the defendants certain goods at the agreed price of $193.25 and has recovered a judgment for that amount upon a complaint alleging the sale and delivery of these goods. The defendants in their answer denied the delivery of the goods. At the trial the plaintiff proved upon its- direct case only that he had sold the goods and that he delivered them to the Manhattan Delivery Company addressed to the defendants at 78 Belmont avenue, Brooklyn, and that he received a receipt from the Manhattan Delivery Company for these goods. The plaintiff did not even produce the receipt for these goods which he claims was signed by Miller Brothers, but was permitted to give testimony as to the receipt over the defendants’ objection. At the close of the trial the defendants’ counsel made the following statement: “ Now, if your Honor please, I make this offer of proof. The plaintiff claims that he has -a receipt from the Manhattan Delivery Company. I do not insist upon strict proof of his signature. If he will offer it for identification I will prove it is not
The learned trial justice has held that rule 5 of section 100 did not on the evidence presented here apply to this contract. The rule provides: “ If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon. ’ ’
It seems to me quite clear that in view of this rule the legislature in section 127 merely intended to provide for a case in which the contract itself on the part of the buyer became complete upon shipment, and did not intend to change the common law rule that, where a contract required a delivery to the buyer at his place of business or any other place, the contract was not fulfilled until such delivery was actually made. In this case the plaintiff does not claim that he was not bound to make delivery to the defendants at their place of business. He does claim that he had always sent goods to the defendants through the Manhattan Delivery Company, but the evidence clearly shows that the express company was his agent and not the agent of the defendants.
It follows that the plaintiff failed to prove any delivery to the defendants and that the judgment
Weeks and Delehanty, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellants, to abide event.