Taylor v. Kurzrok

Burr, J.:

The only question in this case is whether there was an unconditional appropriation of the goods to the contract by the sellers with the assent of the buyers without a requirement to deliver the goods to the buyers or at a particular place.

The contract by its terms and the understanding of its terms by the parties as evidenced by their conduct in connection with the delivery of the first installment in July clearly indicate the buyers understood that the sellers should appropriate specific goods to the contract and notify the buyers that these goods were appropriated and ready for orders for shipment, and were to hold the goods for the account of the buyers until the sellers received directions where and how to make the shipment.

No dispute arose regarding the carrying out of the first half of the contract by the delivery of the installments in July.

The sellers appropriated fifteen particular cases of goods to the contract. Instead of delivering or tendering them at the buyers’ office, the sellers, in compliance with the specific request of the buyers in the letter of June fifth, billed them to the buyers with notice that they were held for shipping instructions. When the shipping instructions came, the sellers were instructed to ship to Porto Rico. This was done. The invoices were paid. This was in accordance with the terms of the letter of June 5, 1920, and not oi the original terms of the contract. It is apparent that both the sellers and the buyers understood that actual delivery was to be made in accordance with instructions to be given by the buyers as to where and how to ship. That the buyers understood the sellers had appropriated these cases to the contract and that they had thereupon become the buyers’ goods to be disposed of by their orders is further shown by the fact that in the letter to the sellers giving shipping directions they refer to the goods as “ merchandise now holding for our account.”

The contracts were undoubtedly altered in respect to the delivery. *314The buyers directed the sellers not to ship them when ready but to await instructions where and how to ship.” (Defendants’ letter dated June 5, 1920.)

This abrogated the provision of the contracts that delivery should be made to the buyers. The sellers acceding to this change the contracts no longer contained a requirement of delivery to the buyers or at a particular place. The place of delivery became the sellers’ place of business. (Pers. Prop. Law, § 124, as added by Laws of 1911, chap. 571, known as the Sales of Goods Act.)

It is clear that the shipping orders were to be given after the goods were ready for actual delivery.

Under these circumstances the property in the goods passed to the buyers as soon as the goods were appropriated to the contract and the buyers notified. (Berkshire Cotton Mfg. Co. v. Cohen, 236 N. Y. 364; Pers. Prop. Law, § 100, as added by Laws of 1911, chap. 571.)

The facts in the case at bar are simpler than those in the Berkshire Case (supra). Here, the contract as modified at the buyers’ request expressly and unmistakably provides that when the goods are ready for actual delivery they are to be held for shipping instructions which are not to be given until after the goods are ready.

The facts in this case show there was an unconditional appropriation of these goods in a deliverable state to the contract by the sellers, which appropriation was assented to by the buyers. (Pers. Prop. Law, § 100, rule 4, subd. 1, as added by Laws of 1911, chap. 571; Id. § 100, rule 5, as added by Laws of 1911, chap. 571; Id. § 124, subd. 1, as added by Laws of 1911, chap. 571.)

The plaintiffs are unpaid sellers (Pers. Prop. Law, § 133, subd. 1, as added by Laws of 1911, chap. 571), they had a lien on the goods for the price (Pers. Prop. Law, § 135, subd. 1, as added by Laws of 1911, chap. 571) and if the buyers were in default an unreasonable time plaintiffs had a right to resell the goods and maintain an action against the buyers for the price thereof, giving the buyers credit for the amount realized on such resale. (Pers. Prop. Law, § 141, subd. 1, as added by Laws of 1911, chap. 571; Id. § 144, subd. 1, as added by Laws of 1911, chap. 571.)

The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event.

Clarke, P. J., Dowling and Merrell, JJ., concur; Finch, J., concurs in result.

Judgment reversed and new trial ordered, with costs to the appellants to abide the event.