. After a careful review of the evidence contained in the case, we are of the opinion that the agreement under which the plaintiffs sought to maintain the action was an executory contract of sale. The apples which the defendant agreed to deliver were not separated from other apples owned by him ; some of them were to be procured from other parties. At the time of making the contract, no designated apples were transferred to the plaintiffs, the defendant merely agreeing to furnish to them from his own apples and those that he might procure, a certain quantity of apples of a designated quality.
The plaintiff Luther R. Tryon testified: “ I think these apples were to be delivered at North Bangor depot. My son was to superintend the barrelling. We were to examine the apples as they were put in the barrel. The defendant said he thought he could buy some from his neighbor and fill out the contract. ■ These apples were to be paid for when they were delivered.” The plaintiff Fred L. Tryon testified : “ He (the defendant) picked out a sample of the apples as they would average, different kinds of apples. ’ I took the sample to Moira. Q. Were the apples sold by the sample? A. Yes, sir. He said-the apples would be like those samples. This was before the apples were delivered. He said those samples would be the kind he would pick out for us. He said that he would get the apples sorted so that we could come down and get them the -last of the week, or the first of the next week following.”
Under the principles settled in Mason et al. v. Smith et al. (28 N. Y. St. Repr. 519) and the authorities' cited in the opinion of Landon, J., in the case, the plaintiffs, not having returned or offered to return the . apples, were not entitled to recover.
*532In the case cited the plaintiff had agreed to sell to the defendant a bill of gloves of the quality of samples shown. The defendant received and did not return the goods when delivered. . It was held no defense that the said goods did not correspond with the samples; that the defendant, if the goods as delivered were not those he agreed to purchase, should have refused to receive them. (See, also, The Coplay Iron Co. v. Pope et al., 108 N. Y. 232.)
It may be said that in the contract passed upon in Mason et al. v. Smith et al. the gloves were to be manufactured or imported after the making of the contract, while in the case under consideration the agreement was to sell apples then, in part at least; in the possession of the defendant. But the apples were not separated from other apples owned by the defendant, and a portion agreed to be delivered were to be procured! from other jiarties. Hence, we think the principle of the cases cited applies, and that the judgment and order should be. reversed and a n’ew trial granted, costs to abide the event.
All concurred.
Judgment and order reversed, new trial granted, costs to abide' the event.