199 A.D. 482 | N.Y. App. Div. | 1922
The verdict of the jury represents the purchase price of two carloads of dried prunes, which the plaintiff agreed to sell and the defendant agreed to buy. The contract was executed April 23, 1919. It provided for the purchase by the defendant and the sale by the plaintiff of California dried prunes as per variety, style and package and prices named. The destination was left blank. The routing was left blank, and after the printed words “ consigned to,” there was a blank. That blank was not filled in. The time of shipment was October-November, seller’s option. There was then stated the specification of the goods ordered. Under the heading “ terms,” the contract provides: “ F. O. B. Pacific Coast Rail Shipping Point. Cash less two per cent (2%) if draft is paid within ten (10) days from date thereof, otherwise net cash thirty (30) days after date of draft, unless shipment arrives prior thereto in which case payment shall be made within three (3) full business days after arrival. Payment to be made against drafts with documents attached in New York, Chicago or San Francisco Exchange, or equivalent.” Under the heading “ routing ” in the contract the following provision appears: “ Seller shall, where possible, recognize routing named by Buyer, but Seller has option of selecting the initial line. Should Buyer divert goods while in transit without Seller’s consent, Seller shall be relieved of all responsibility for quality and/or condition, Change in routing from rail to
This contract was signed by the defendant and by the plaintiff through a broker, M. W. Houck & Bro. The plaintiff-seller in November placed the goods upon the cars in California, receiving a bill of lading which called for a shipment of the goods to New York city, but the bill of lading was to the consignee or order, and in the bill of lading the plaintiff-seller was named as the consignee. The bill of lading, indorsed in blank, was presented to the defendant, who refused to accept the same, and plaintiff thereupon brought this action for the purchase price as for goods sold and delivered.
The 1st subdivision of section 144 is in all material respects similar to subdivision 1 of section 49 of the English Sale of Goods Act (56 & 57 Viet. chap. 71). Under that subdivision it has been held that this, as an affirmative provision, necessarily implied a negative, that unless the seller has passed the property to the buyer he cannot maintain an action for the price. (Atkinson v. Bell, 8 B. & C. 277; Elliott v. Pybus, 10 Bing. 512; Williston Sales, 947, and cases cited in note 20.) There is no claim here that the property was not readily salable upon the market, so that the plaintiff cannot base its right upon subdivision 3 of section 144. Its right must be based solely upon subdivision 1 of section 144, upon the ground that the property
This interpretation of the rule under subdivision 1 of section 144 is further indicated by a reference to the decisions and statutes showing the development of this branch of the law. The provisions of our Personal Property Law which relate to the sale of goods were taken from the Uniform Sales Act, which had been adopted by various States of the Union before it was adopted, with some slight modifications, by our Legislature. The Uniform Sales Act had in it a provision that it should be known as the Sales Act. That act was taken from
Inasmuch, therefore, as the provisions of our Personal Property Law contained in section 144 have followed the provision of the Sales Act, and as the provisions of the Sales' Act have modified the provisions of the English Sale of Goods Act by adding to the cases in which the vendor may sue for the contract price, the provision that such suit may be brought when property has not passed only when the goods are not readily resalable in the market, it would seem clear that the plaintiff has not brought itself within the provisions of subdivision 1 of section 144 of our Personal Property Law, and is not entitled to recover for the price of the goods, but can only sue for the failure of the defendant to accept the goods, in which case the measure of damage would be the difference between the contract price and the market price of the goods. (See Mosler Safe Co. v. Brenner, 100 Misc. Rep. 107.) The Legislature might have added to section 144 i, another subdivision and provided that the price could be - recovered if the property be retained in the seller solely for the purpose of security. But it did not. The right of an injured party to a broken contract is primarily to sue for damages. In the case of goods sold and delivered the damages to the vendor for breach by the vendee is the contract price. The construction of the contract is determined by the intention
It is unnecessary in this action to determine the extent of the property right which passes to the buyer under such a bill of lading; and it is unnecessary here to determine what may be the rights of a vendor or vendee in a conditional sale, or where the goods have been sold and a mortgage returned to secure the purchase money. (See Williston Sales, § 333.) It would seem, as before indicated, that the buyer has under such a bill of lading a beneficial interest which is greater than a mere contract right. In this case the seller has reserved both the title and the control of the goods, as they are deliverable only upon his order, and for whatever purpose he may have retained this property in the goods, the general property, as required by section 144, subdivision 1, has not passed to the buyer.
Counsel for the respondent relies on three cases for his proposition that a mere tender of the goods and setting them aside for the buyer justifies an action for goods sold and delivered, namely: Butler Brothers v. Hirzel (87 App. Div.
From the contract as set forth in this opinion it will be noticed that there is no provision as to where these goods shall be shipped. The contract is signed in behalf of the defendant by the manager of the Argentine Department. There are provisions in the contract which clearly contemplate transportation by water and the buyer is to designate the route and the carriers, except that the seller may designate the initial carrier. The seller was not, therefore, authorized
The judgment and order should, therefore, be reversed, with costs, and the complaint dismissed, with costs.
Clarke, P. J., Laugi-ilin, Dowling and Page, JJ., concur.
Judgment and order reversed, with costs, and complaint dismissed, with costs.