
    Arthur Greenfield, Inc., Appellant, v. James S. Herrman, Respondent.
    (Supreme Court, Appellate Term,
    June, 1911.)
    Sales — Delivery—Necessity and time for delivery — Delivery as condition precedent to payment.
    One who sells a concrete mixer weighing 2,500 pounds and securely fastened to the ground to another is bound as part of the contract of sale to deliver the mixer to the buyer; and, in case of the seller’s failure to make delivery, the buyer may recover the damages which he sustains by reason of the seller’s breach of contract.
    
      Appeal by plaintiff from a judgment of the City Court of the city of Hew York, dismissing the complaint at the conclusion of the plaintiff’s case.
    Dayton & Bailey (Alfred M. Bailey, of counsel, Joseph W. Middiebrook and Solon Weit on the brief), for appellant.
    Greene, Hurd & Stowell (Bichard T. Greene, of counsel, John L. Feeny on the brief), for respondent.
   'Seabtjbv, J.

The defendant agreed to sell the plaintiff a concrete mixer, situated at the United States government station at West Point, N. Y. The plaintiff agreed to buy it and paid $.50 on account and gave defendant a note for $700, the balance of the purchase price. The plaintiff went to West Point to get the mixer, and those having it in charge refused to deliver it to him. The mixer weighed 2,500 pounds and was securely fastened to the ground. The plaintiff brought this action to recover the amount paid for the mixer and alleged a breach of the contract on the part of the defendant by reason of his failure to deliver the mixer to the plaintiff. Upon these facts being proved, the trial court dismissed the complaint upon the ground that there was no implied warranty of delivery. This ruling presents the only question raised by this appeal.

In every contract of sale the law implies a duty on the part of the seller to deliver the thing sold, unless there is an agreement to the contrary. Mechem Sales, § 1118. When the subject-matter of the sale is in the possession of the seller, this duty is always implied. When -the goods are not in the possession of the seller and the seller affirms title to them, the same implication exists as would exist if the seller had actual possession of the goods. McCoy v. Artcher, 3 Barb. 323. There was nothing in the evidence to show that there was any agreement on the part of the seller not to deliver the mixer. It did, however, appear that the defendant affirmed that he had title to the mixer and agreed to sell it to the plaintiff. Under these circumstances, we think that the seller was obligated to deliver the mixer to the buyer and that, in the event of his failure so to do, the buyer might maintain an action to recover the damages which he sustained by reason of the seller’s breach of contract.

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

Guy and Bijur, JJ., concur.

Judgment reversed.  