The serious question is whether the tender of the warehouse receipt for whisky in a bonded warehouse in the State of Kentucky passed the title to the defendant against his will. If the contract had been for' the specific whisky covered by *715the warehouse receipt the place of delivery would be at the warehouse where the whisky was in bond, in the absence of any contract to -the contrary. (Pers. Prop. Law, § 124, as added by Laws of 1911, chap. 571.) But it was not. In such a case, in the absence of any agreement or usage of trade to the contrary, the place of delivery was at the plaintiff’s place of business at Cincinnati. (Pers. Prop. Law, § 124.)
While the testimony of the plaintiff of trade usage is not very clear, it is in harmony with the rule just referred to and sufficient, in connection with the other circumstances, as it seems to me, to sustain a finding that it was the intention of the parties that the plaintiff should take the whisky out of bond wherever it might obtain the same, deliver it to a carrier at Cincinnati consigned to the defendant, and draw on him for the amount of the purchase price and Federal tax, attaching the draft to the bill of lading, as the defendant contends. Otherwise the defendant might have to páy the transportation charges from any place where whisky of this description might be stored in bond.
Furthermore, the plaintiff, instead of keeping the whisky on hand for the defendant, has disposed of it. While perhaps this may not of itself bar a recovery for the purchase price since such disposition was after tender and commencement of the action (Stokes v. Mackay, 147 N. Y. 223, 236), it would seem to be at least a circumstance in support of .the defendant’s contention. Selling the whisky to others, as plaintiff did, is entirely inconsistent with 'its claim that the title passed to the defendant and became his property.
While the complaint alleges that the plaintiff holds the whisky for the defendant and is ready and willing to deliver the same, this allegation is denied in the answer, and the undisputed proof is to the contrary and was received without objection.
I think the direction of the verdict was erroneous and a new trial should be granted.