The plaintiff was engaged in the business of buying and selling woolen rags. The defendant was manufacturing shoddy for woolen mills, having its mill at Dryden, N. Y., and its office in the city of New York, with S. Bernstein & Sons, Inc., Mr. Solomon Bernstein being president of both corporations. The testimony of the plaintiff’s president, which the jury accepted, was briefly as follows: On July 8,1918, Mr. Bernstein called him on the telephone and asked whether he had khaki clippings, and he replied that he had and would - sell him two bales of overcoat clippings and one bale of worsted clippings, and quoted a price of forty-five cents a pound for the overcoat clippings and seventy-five cents a pound for the worsted. Mr. Bernstein told him that he would purchase them and would confirm the "purchase in writing, which he did on the tenth of July. The overcoat clippings were already baled, and on the same day that the written confirmation was received the worsted clippings were sorted out and made up into a bale. The three bales in the afternoon of that-day were tagged and set apart to be held for the defendant to call for them. Thereafter the defendant sent a truck to plaintiff’s place of business between twelve noon and twelve-thirty o’clock. The shipping clerk told the truckman that the men were out at lunch, but that if he would wait five minutes some of them would be in and would get the bales down for him. The truckman thereupon drove off. The plaintiff’s president repeatedly telephoned the defendant to *209send for the goods and on August 22, 1918, wrote to the defendant: “ The two bales of khaki overcoatings and one bale of khaki worsteds sold you on July 10th are still awaiting your call. We cannot ask you for money as long as you have not taken the stock in and we need the money, so would ask you to kindly send for these without delay.” Defendant replied on August 31, 1918: “ We needed the stock urgently when we purchased it from you, and as a matter of fact we sent for it and called you up several times for same, and you did not have it at the time you stated you would have it. Due to government regulations we are not. in a position to handle this stock any more, and we considered it cancelled long ago.” To this the plaintiff replied stating that the calling up had been done by the plaintiff and not by the defendant, and that the only time a truckman had called for the goods was when the plaintiff’s men were at lunch and the driver refused to wait five minutes for them to return, which they presume^ was by defendant’s orders; and reiterated the demand for the defendant to take and pay for the three bales. Not hearing from the defendant, plaintiff brought this action to recover the purchase price of the goods in the City Court of the City of New York, and recovered a judgment, which was affirmed by the Appellate Term.
The question to be determined on this appeal- is whether the title to the goods passed from plaintiff to defendant, and the defendant wrongfully refused to pay. If it did, the plaintiff could maintain the action. (Sales of Goods Act [Pers. Prop. Law], § 144, as added by Laws of 1911, chap. 571.) No place of delivery having been specified in the contract, the place of delivery was the seller’s place of business. (Id. § 124, as added by Laws of 1911, chap. 571.) The two bales of overcoat clippings were already made up and in a deliverable state at the time the written order was' received by the plaintiff, and the worsted clippings were existing goods in possession of the plaintiff. Very little sorting of the latter was necessary, as plaintiff had received some clippings of this grade from a customer and needed only to sort the worsted clippings from his own stock. This sorting was to separate clippings of different grades and colors. The two bales were in condition *210to be immediately appropriated to the contract when the contract was made. The title to the three bales passed when the worsted clippings were sorted and made into a bale so that they were in deliverable shape and they were all set aside and tagged. (Id. § 100, rules 1, 2, as added by Laws of 1911, chap. 571; Ferry v. South Shore Growers & Shippers Assn., 189 App. Div. 542.) If, as Mr. Justice Smith contends, we should treat this as a contract for the sale of unascertained goods, in so far as the bale of worsted clippings is concerned, title would pass when the bale was made up, tagged and put aside, in a deliverable state awaiting the call of the defendant’s truckman. That would be an unconditional appropriation of these goods to the contract with the implied consent of the buyer. (Id. § 100, rule 4, as added by Laws of 1911, chap. 571.) The consent of the defendant may be implied from two circumstances: (1) The defendant sent its truckman for the goods; he came at an hour when it was not possible to make delivery and refused to wait for .five minutes. His refusal was not on the ground that the goods had not been selected or inspected by the defendant, nor was there any claim on the part of the defendant on the trial that it had the right to inspect. (2) The defendant, by not claiming the right to make the selection or to inspect the goods after the selection, vested the vendor with implied authority to make the selection and thus vest the title in the vendee. (Cooke v. Millard, 65 N. Y. 352, 366.) In that case, upon which Mr. Justice Smith relies, the distinction is made between the sale by sample of goods to be manufactured, and the sale of existing chattels where the selection from a mass of the same kind was required. The court said: “ This doctrine requires the assent of both parties, though it is held that it is not necessary that such assent should be given by the buyer subsequently to the appropriation by the vendor. It is enough that the minds of both parties acted upon the subject and assented to the selection. The vendor may be vested with an implied authority by the vendee to make the selection and thus to vest the title in him (Browne v. Hare, 3 H. & N. 484; S. C., 4 id. 822). This doctrine would be applicable to existing chattels where a mere selection from a mass of the same kind was requisite. On the other hand, if the goods are to be *211manufactured according to an order, it would seem that the mind of the purchaser after the manufacture was complete, should act upon the question whether the goods had complied with the contract [Citations]. This point may be illustrated by the case of a sale by sample, where the seller agrees to select from a mass of products certain items corresponding with the sample, and forward them to a purchaser. The act of selection by the vendor will not pass the title, for the plain and satisfactory reason that the purchaser has still remaining a right to determine whether the selected goods correspond with the sample.”
Thus it appears that the illustration of the sale by sample applied to the case of a sale of goods to be manufactured, and not to a mere selection from a mass of existing chattels, to which the first part of the quotation applied.
And again, preceding the quotation in Mr. Justice Smith’s opinion from the case of Bog Lead Co. v. Montague (10 C. B. [N. S.] 481), a very illuminating portion of the Cooke v. Millard opinion reads: “ It cannot be conceded that there was any acceptance in the present case by reason of the acts and words occurring between the parties after the parol contract, and before the goods were prepared for delivery. There could be no acceptance without the assent of the buyers to the articles in their changed condition and as adapted to their use. If the case had been one of specific goods to be selected from a mass without any preparation to be made, and nothing to be done by the vendor but merely to select, the matter would have presented a very different aspect. This distinction is well pointed out by Willes, J., in Bog Lead Company v. Montague (10 C. B. [N. S.] 481).”
In the case of Cooke v. Millard (supra) the defendants desired to purchase certain kinds of lumber in quantities to be specified, and were shown by plaintiffs the lumber then in their yard, which was of the desired quality but needed to be dressed and cut into different sizes. There was much more lumber in the yard shown to defendants than was requisite for their purposes. An oral order was given by defendants for certain quantities and sizes of lumber at specified prices. No particular lumber was selected or set apart to fill the order, nor was any part of it then in condition to be *212accepted or delivered. The lumber after being prepared and dressed according to the agreement was piled on the plaintiffs’ dock and notice sent to the person designated for that purpose by the defendants. Two days thereafter the lumber was destroyed by fire. The Commission of Appeals clearly distinguished the rules applicable to that case, a contract for the sale of goods to be manufactured, from the rules applicable to the instant case, which was the sale of existing goods to be selected from a mass of the same kind. In the former they held that title did not pass until the goods had been inspected and accepted by the purchaser, while in the latter the vendor had the implied authority from the vendee to make the selection and title passed when the vendor made, the selection and everything was done by the vendor to put the goods in deliverable shape and they were unconditionally appropriated to the contract.
In the instant case the clippings were waste from the manufacture of overcoats and uniforms for the use of the army." They were staple goods, ascertained, in existence and at the time of the contract in possession of the seller. The two bales of overcoat clippings were in deliverable condition when the contract was made. The one bale of worsted clippings was in possession of the seller and only required to be selected from other clippings. There was no sample to which they were required to conform, and no process of manufacture through which they had to go, to put them in deliverable shape; they needed merely to be gathered and selected from the mass, baled and tagged. (Bristol Mfg. Corp. v. Arkwright Mills, 213 Mass. 172, 176; Leonard v. Carleton & Hovey Co., 230 id. 262, 264; Sanger v. Waterbury, 116 N. Y. 371, 374.) I am of opinion that title to the goods had passed and the plaintiff could maintain an action for the price.
The determination of the Appellate Term should be affirmed, with costs.
Clarke, P. J., and Greenbaum, J., concur; Dowling and Smith, JJ., dissent.