
    William B. Mersereau, Respondent, v. L. K. Hirsch Company, Appellant.
    Fourth Department,
    January 12, 1910.
    Sale — delivery f. o. b. — refusal of carrier to transport as desired by vendee.
    Where a contract for the sale of a locomotive required it to be delivered on the first of November f. o. b. at the vendor’s place of business, but after notification by the vendor that the railroad company refused to transport the locomotive on its own wheels as desired by the vendee, the latter replied on December fifth that it would take up the matter of transportation with the railroad company, but failed to do so, the vendor, after waiting Until January twenty-second, is entitled to maintain an action for the purchase price without delivering the locomotive to the railroad which had refused to transport it in the manner desired by the vendee.
    Appeal by the defendant, the L. K. Hirsch Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 16th. day of February, 1909, upon the report of a referee.
    
      . The action is to recover the purchase price of a locomotive sold by plaintiff to defendant under the following agreement, viz.:
    “ L. K. Hirsoh Company.
    “ Steel Rails, Iron & Steel.
    “ Pig Iron.
    “ Hew York, October 16, 1906.
    “ The L. K. Hirsch Company (Hew York) agrees to buy, and Mersereau & Company, Portville, H. Y., agrees to sell . “ Quantity „ • “Material One locomotive, as inspected by R. W. Hunt ■&' Company Oct, 13-06, locomotive to be ih same • condition as inspected when ready for delivery which will be 1st of Hbvember.
    “ Specifications
    “Price
    One thousand dollars ($1,000.00,)
    “ F. O. B.
    ■Portville, H. Y.
    “ Delivery
    On or before Hovember 1st, 1906.
    “ Terms
    Thirty days net.
    “ Shipment
    Same as delivery.
    
      “ Remarks
    “ If material is not delivered on or before specified timé of delivery the purchaser has the privilege of cancelling this contract without notice. .
    . “ Accepted: MERSEREAU & CO. L. K. HIRSCH CO.
    ■ “ By W. B. Mersereau. by M. K. Frank.”
    The referee decided that the plaintiff was entitled to recover the purchase price and directed judgment therefor, and from that judgment this appeal is taken.
    
      Dana I, Jewell, for the appellant.
    ■' Creighton 8. Andrews, for the respondent.
   Kruse, J.:

The defendant.contends that under the terms of the contract the plaintiff was required to deliver the locomotive to the railroad company for shipment at Portville, H. Y., which lias not been done, and that, therefore, lie is not entitled to recover the purchase price of the locomotive.

I think that would be so were it not for the fact that the defendant omitted to make the necessary arrangement with the railroad company for receiving and transporting the locomotive. By the terms of the contract the delivery was to be made on or before November 1, 1906. The plaintiff was ready to deliver the locomotive at that time, and on the twelfth of November wrote and telegraphed the defendant-to make some disposition of the locomotive. Shipping directions were finally given by the defendant to the plaintiff, but the railroad company refused to receive and transport the locomotive on its own wheels, as the defendant desired, in its then condition. The plaintiff- so notified the defendant on the 26th day of November, 1906. The defendant replied December 5,1906, by letter, that it would take up the matter of transportation with the railroad company, but no shipping arrangements were made with the railroad company, and the action was commenced January 22, 1907, to recover the purchase price of the locomotive.

It is unnecessary here to refer in detail to the correspondence between the parties.

There were only two ways of transporting the locomotive to the point of destination. One way was on its own wheels and the other by loading and transporting on cars. The defendant could have shipped either way, and could require the plaintiff to deliver the locomotive to the railroad company and even load it on cars, but it was incumbent upon the defendant to make the necessary arrangements with the railroad company for receiving the same for transportation. It would have been idle for plaintiff to take the locomotive to the. railroad station unless the railroad company would receive it.

The plaintiff seems to have waited a reasonable time for the defendant to make shipping arrangements-with the railroad company, and defendant not having done so, I think the plaintiff is entitled to recover the purchase price of the locomotive.

I think the judgment is right and should be affirmed.

All Concurred.

Judgment affirmed, with costs.  