(dissenting):
I am not in accord with the result reached by Mr. Justice Van Kirk. The terms of the sale were set forth in a receipt as follows:
“May 1916.
“ Received from Mr. Harry Weiss, 90 Congress St., Troy, N. Y., $7,450.08, in payment for £2000 4| Japanese bonds Second series German-stamped (73| net and accrued interest). The bonds to be deposited at the Dresdner Bank, Berlin, which institution will hold said bonds, free of charge, subject to the order of Mr. Weiss, and thus under his sole control. We further agree to furnish receipt of the Dresdner Bank, setting forth the above, within a reasonable time.”
I think the only fair interpretation of that receipt was that there should be an unconditional acknowledgment from the Dresdner Bank to the plaintiff that it had received and was holding the bonds for him .as his custodian.
It is the fair assumption that the parties intended that that should be done which the law of this State requires with reference to the manner of delivery where the goods sold are in the possession of a third person. Section 124, subdivision 3, of the Personal Property Law provides: “ Where the goods at the time of sale are in the possession of a third person, the seller has not fulfilled his obligation to deliver to the buyer unless and until such third person acknowledges to the buyer that he holds the goods on the buyer’s behalf.” In the absence of clear language indicating the contrary, I believe we should hold that these parties, who were business men and presumably familiar with the law of such transactions, intended to express what the law requires in such a case. Reading section 124, subdivision 3, in conjunction with sections 99 and 100, rule 5, of the Personal Property Law,* title would not pass to the plaintiff under the contract here until the Dresdner Bank acknowledged to the plaintiff that it held the goods on the plaintiff’s behalf. The plaintiff never received a receipt from the Dresdner Bank. The receipt sent to Housman did not fulfill the contract between Housman and Weiss because it was not an acknowledgment to the buyer and because it was ambiguous. It was not an unconditional *156acknowledgment that the Dresdner Bank was holding the bonds for the plaintiff, as his custodian, which I think was the clear intention of the parties. It was this very ambiguity which later led the Dresdner Bank to assume that it was keeping the bonds on deposit for Housman and which led to the attachment of twenty-one of the bonds. It was the clear intention of the parties that title should not pass and that the risk of loss should not rest with Weiss until he had the acknowledgment from the Dresdner Bank that it was holding the goods for him. If at the time of the agreement for sale it had been suggested that title and risk rested with Weiss before such acknowledgment from the Dresdner Bank had been made to him, both parties would undoubtedly have declared that such was not the agreement or the intent. That is the test. (Genet v. D. & H. C. Co., 136 N. Y. 593, 609.)
I agree with the court below that the defendants were liable for the acts of the Dresdner Bank as their agents in improperly disposing of twenty-one of the bonds and in improperly disposing of the coupons of other bonds for the reason that there- was no proper delivery of the bonds to the plaintiff as agreed. I disagree, however, with the court below as to the measure of damages. Section 148 of the Personal Property Law provides: “ 1. Where the property in the goods has not passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for nondelivery. 2. The measure of damages is the loss directly and naturally resulting in the ordinary course of events from the seller’s breach of contract.” If the contract is rescinded the purchase price can be recovered, but here the plaintiff stood upon the contract and he is, therefore, entitled to recover only the loss directly and naturally resulting in the ordinary course of events from the breach. The Personal Property Law does not change the old rule of damage in such a case. The old rule as set forth in Sutherland on Damages (Vol. 2, § 656) is as follows: “ The measure of damages is the same whether the purchase money has been paid or not. The consideration of a contract does not measure the damages for the breach of it. If the property is worth less than the price and the contract has been rescinded the buyer may sue. to recover the consideration, which will then measure his damages; but so long as he stands on the contract, as by suing for its breach, he must be content if the law places him in the position he would have occupied if the contract had been performed. This it does by permitting the recovery of the market value of the property at the time and place when and *157where it should have been delivered.” The time when these goods should have been delivered to the plaintiff was at the time when the agent of the defendants, namely, the Dresdner Bank, was directed to acknowledge to the plaintiff that it was holding "the bonds for the plaintiff. The place was at Berlin, Germany. That was the time and place when and where these goods should have been delivered in accordance with the contract but which failed because of the failure of duty of the defendant’s own agent, the Dresdner Bank. The measure of damages then is the value of these twenty-one bonds at that time and place plus the value at that time and place of the coupons supposed to be attached to the other bonds.
I vote for a reversal of the judgment but favor a new trial for the purpose of fixing the damage upon a proper basis.
Hasbrouck, J., concurs.
Judgment reversed on the law and facts, with costs to the appellants, and judgment directed in favor of the defendants, with costs in the trial court.