103 N.Y.S. 381 | N.Y. App. Div. | 1907
On the 1st of March, 1905, the defendant purchased from the plaintiff forty bales of hops, as evidenced by a written instrument, of which the following is a copy:
“Brooklyn, H. Y., March 1st, 1905.
“Bought to-day off Mr. Paul Horst (20) twenty bales choice Oregons at 29 cts., (20) twenty bales choice Hew York State hops at 30 cts. per lb., deliverable in 10 or 15 bale lots, as per written order of Montauk Brewing Company, payable in ten days after delivery. Samples to be submitted must be satisfactory.
“MOHTAUK BREWIHG- COMPAHY.
“By C. D. Rhinehart.
“ Charles Albresch.”
In May following sixteen bales of the Hew York State hops were delivered and paid for. This action was brought to recover the purchase juice of the other twenty-four bales, the complaint alleging delivery and defendant’s failure to pay. The answer admitted the agreement and delivery of the sixteen bales which were paid for, but alleged that the plaintiff failed and refused to submit samples of the Oregon hops, and denied that any of the hops called for by the agreement were delivered except the sixteen bales.
At the trial the complaint was dismissed at the close of plaintiff’s case and he appeals. The question presented turns upon whether
It also appeared, without objection, that where hops are sold and no time specified for delivery, according to the custom of the trade, delivery must be made before new crops come in, which is in September or October of each year.
Upon these facts I am of opinion that the complaint- was improperly dismissed. The rule now seems to be well settled that in an action for goods sold and delivered the seller may, upon tender of performance on 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); that he is entitled to recover the price when he shows not only that the purchaser failed to pay, but that he himself was ready to perform and has delivered or offered to deliver the goods (Dunham v. Mann, 8 N. Y. 513); that the omission to prove an actual physical delivery does not prevent a recovery (Butler Brothers v. Hirzel, 87 App. Div. 462; affd., 181 N. Y. 520); that where manual delivery of goods is inconvenient on account of their bulk it is unnecessary; placing the goods in the power of the vendee is sufficient; an actual delivery is not required; a symbolic delivery suffices, and delivery of an order on the warehouseman may be enough. (Salmon v. Brandmeier, 104 App. Div. 69.) It was unnecessary for the plaintiff to take the hops to. the door of the defendant’s brewery. It had refused, though requested to do so, to order the hops delivered either there or anywhere else. Under such circumstances the plaintiff had a right to make the delivery as he did, inclosing documents which evidenced that the defendant not only had the title but could go and get the hops whenever it saw fit. It is true the plaintiff, after the delivery orders had been sent to and retained by the defendant, put the hops in a warehouse, but he was under no obligation to do this. He might have left them where they were and let the defendant stand the consequences. However, what was done in this respect was for defendant’s benefit. It was at once informed of what was done, and the- warehouse receipts were sent to it, which were retained without objection.
If the foregoing- views be correct, then it necessarily follows that the court erred in dismissing the complaint.
' Other questions are presented by the appellant as to the-exclusion of- evidence,' which, except for the conclusion reached, would require serious consideration.
The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.
Ingraham and Clarke, JJ., concurred; Patterson, P. J., concurred in result; Houghton, J., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide-event. Order filed.