
    JOHN N. KEIN and ROBERT KEIN, Plaintiffs and Respondents, v. WILLIAM V. TUPPER and JAMES BEATTIE, Defendants and Apellants.
    I. Contract executory for sale and delivery of goods.
    . 1. Entirety of.
    
    
      а. A contract for the sale and delivery of 119 bales of cotton, is . entire.
    б. Such a contract is not satisfied by the delivery of a part only. a. When part only is delivered, the vendor cannot recover for that part without a delivery or tender, of the balance, unless the entire performance has been waived by the vendee, or rendered impossible by the act of God.
    1. Emm for not fully performing; what is not.
    
    1. A destruction of part of the goods by fire is not.
    
      
      d. Specific articles. Although the contract be for specific articles, • the above principles apply.
    
      U. Sale and Purchase op Goods. —Testing- op Title in Purchaser.
    1. Where the articles sold have to be weighed in order to determine the amount to be paid therefor, the title does not vest in the purchaser until after the weighing has been had. in. Application op above Principles. — Bought and Sold Rotes.
    1. Under bought and sold notes, executed by a broker for cotton describing the property thus:
    W. X. V. 113 J. P. O. 7
    
    119 bales, at 31J cents,—
    the vendor gave the purchaser an order for the cotton on the warehouseman with whom it was stored; the purchaser sent the order to the warehouse, with the direction indorsed, “ Re-store on my account,” with a sampler ; who received, weighed, marked and sampled seventy bales, which were re-stored on the purchaser’s account; owing to the lateness of the hour, the warehouseman refused to turn out any more bales at that time. During the night, the warehouse and its contents were nearly destroyed by fire. The balance of the one hundred and nineteen bales were never delivered or offered to be delivered. In an action brought by the vendor for the price of the seventy bales.
    Held, 1. There was no completed sale of the whole number of bales, and therefore he could not recover in that aspect of the case.
    3. Whether the contract was one for the sale of a specific lot of cotton, or merely for the sale and delivery of one hundred and nineteen bales of a certain quality, still full performance was necessary to a recovery, and a delivery of a part only,, without a delivery, or offer to deliver the balance, did not constitute full performance; and therefore, he could not recover in either of these aspects.
    Before Monell, McCunn and Freedman, JJ.
    
      Decided December 31, 1871.
    Appeal from judgment.
    The action was to recover the contract price of seventy bales of cotton, weighing thirty-five thousand nine hundred and thirty-eight pounds, alleged to have been sold and delivered by the plaintiffs to the defendants.
    The answer denied the sale and delivery of the seventy bales, and as a separate defense, alleged, that the plaintiffs had contracted to sell to the defendants one hundred and nineteen bales of certain marks ; that it was sold by sample, and that such contract was the only contract between the parties. They then alleged non-performance of the last mentioned contract by the plaintiffs,' by the non-delivery of said one hundred and nineteen bales, and the readiness of the defendants to receive the same.
    The action was tried before Chief Justice Barbour and a jury.
    On the trial the plaintiff introduced the following bought and sold notes:
    “Office of Daniel W. Talcott, 1 Cotton Broker, 131 Pearl-street, j
    “New York, July 3rd, 1868.
    “ I have this day sold on your account the undermentioned cotton. Payment, cash on delivery.
    Harks, Quantity, Description, Price, Name of Ship, Buyer, “W. X. Y. 112 “J. P. O. 7
    118 Bales, at 31| c. Tupper & Beattie.
    “DANIEL W. TALCOTT,
    ‘ ‘ Messrs. Kein & Company. ‘ ‘ Per C. M. Willett.
    “No reclamations allowed on any cotton of the grade of ‘ Low Middling,’ and below, unless the difference in qualities in any. one bale is to the extent of one full grade, and even in such case, no reclamation to be allowed unless claimed on delivery of the cotton. No reclamation allowed for iron hoops or bands to the number of six on each bale, if not of unusual weight.”
    
      The “bought” noté was the same as the above in all respects, substituting “ bought” for “sold,” and “ Tupper & Beattie ” for “Kein & Company,”
    The plaintiffs then proved that they held on the day of the sale, one hundred and nineteen bales of cotton, purchased from C. B. Camp & Co., who had purchased the same from Dibble, Worth & Co., bearing the specific marks stated in the bought and sold notes, and which was stored in the warehouses Nos. 502 and 506 Wasliington-street, in this city.
    The time for delivering was extended for the accommodation of the defendants to the 15th of July. On that day they gave the plaintiff the following written order:
    “New York, July 15, 1868.
    “Messrs. Kein & Co.
    “Will please deliver to bearer, weighed and in good order, 'one hundred and sixteen bales cotton, marked:
    “W. X. Y. 106 “J. P. 0. 13
    119
    “And oblige,
    1 ‘ TUPPER & BEATTIE.
    “ (Indorsed) order.
    “Tupper and Beattie, 119 b. c.
    “July 15, 1868.”
    The plaintiffs théreupon caused to be delivered to the defendants the following orders :
    “New York, July 15th, 1868. “Messrs. C. B. Camp & Co.:
    “Please deliver bearer one hundred and nineteen (119) B. C., weighed and in good order, and oblige,
    “ W. X Y. 112 “KEIN & COMPANY,
    “J. P. O. 7 “ Jno. Higgins.
    “119 B. C.”
    
      New York, July 10, 1868.
    “ 502 and 506 Washington-street.
    “Please deliver Messrs. C. B. Camp & Co., bearer in good order one hundred and nineteen bales cotton.
    “W. X. Y. 106 ,
    “J. P. O. 13 “DIBBLE, WORTH & CO.,
    119
    “A. C. Worth.
    “ Stored, April 27th, 1868.
    (Indorsed)
    (Mender)
    “ BLAKE & SON. “WRIGHT & CO.
    Upon the receipt of which orders the defendants directed to be indorsed upon the latter, the words at the bottom, “Re-store for acc. Tapper & Beattie, 114 Wall-street. Send storage receipt by sampler.”
    On the same day, the defendants caused one hundred and nineteen bales of cotton of these specific marks to be insured against fire, but erroneously described them as being in warehouses 508 and 510 W ashington-street.
    The defendants sent a sampler to sample and receive the cotton, taking with him the order on the warehouse. The sampler received seventy of the one hundred and nineteen bales, which were weighed, marked, and sampled, and then re-stored in the same warehouse for the defendants, as directed at'the foot of the order; the warehouse men refusing, owing to the lateness of the hour, to turn out any more bales at that time. During that night the warehouse and its contents were destroyed or nearly destroyed by fire. Of the seventy bales, twenty-eight were saved in a damaged condition, and sold for account of defendants, and they were credited for such bales at the contract price.
    The defendants moved to dismiss the complaint, on the ground that the contract was entire, and the plaintiffs had not shown a nerformance or offer to perform in full. The motion was denied, and the defendants excepted.
    The court, in charging the jury, left it to them to find, whether the cotton" sold was ‘ a specific, definite lot of cotton, or merely a contract to sell one hundred and nineteen bales of a certain quality of cotton that would answer the samplesand he instructed them that if they found that a particular lot of cotton was not contemplated by both parties, their verdict should be for the defendants. But if the jury come to a different conclusion, then he left it for them to determine if there had been a delivery of the'seventy bales.
    The defendants excepted to the charge, and also to the refusal of the court to charge that the contract to deliver one hundred and nineteen bales was an entire contract, and was not satisfied by the delivery of seventy bales, and that the plaintiff could not recover without showing a tender of the remaining forty-nine bales.
    There were many, other requests to charge, which were refused and exceptions taken, and also numerous exceptions to the reception and rejection of evidence, none of which, in the view taken by the court on this appeal, are necessary to be stated.
    The court restricted the recovery to the value of forty-two bales, holding that the value of the twenty-eight bales partly destroyed should be allowed to the defendants.
    The jury found for the plaintiffs for the value of the forty-two bales, and judgment was entered upon the verdict.
    The defendants appealed.
    
      Benedict & Benedict, attorneys, and R. D. Benedict, counsel for appellants, urged:—
    I. The only contract between these parties was contained in the bought and sold notes. It was not a sale, but an executory, contract of sale. The judge so charged, and that is the law of the cases (Joyce v. Adams, 8 N. Y. 297). It could not be a sale, for the plaintiffs had no cotton to sell at the time.
    II. It was not a contract to sell specific bales, but to sell a given quantity. This is matter of law, and the judge erred in submitting it as a question of fact to the jury, whether the contract contemplated a particular lot. a. The contract was in writing in the bought and sold notes proved by the plaintiffs, and it can be no more varied or contradicted in respect to its legal effect than it can be in respect to its express terms (2 Abb. Dig. 631, § 765; and cases cited). b. As matter of law, that contract would have been fully complied with by the sellers, if they had delivered one hundred and nineteen bales, of those marks, and corresponding with the samples shown at the time, no matter where they got them. “ The subject matter of the contract of sale, so far as it respected the number of bales and brands, was identified by it, but it did not call for the cotton stored at 502, 504 and 506 Washington-street. Any other bales of cotton of the descrip- • tion specified would as well have answered the obligation of the sellers with the buyers ” (Joyce v. Adams, 8 N. Y. 297). ' It would be a most astonishing conclusion, if on such a contract, the parties were limited to specific bales.
    III. If this be so, the judge erred in refusing to dismiss- the complaint, and in refusing the first, second, and third requests to charge, a. The contract being an entire one, plaintiffs could not recover upon it without proving performance (Russell v. Nicholl, 3 Wend. 119 ; Barker v. Higgins, 21 N. Y. 397 ; Solomon v. Neidig, 1 Daly, 200 ; Tomkinson v. Dudley, 25 N. Y. 272 ; Champlin v. Rowley, 13 Wend. 258 ; Meed v. Degolger, 16 Wend. 632 ; Paige v. Ott, 8 Den. 406 ; Knight v. Dunlop, 4 Barb. 36). b. Even if the fire had destroyed all the cotton in New York, it would have been no excuse to them for failing to perform. But as it was, no excuse whatever was shown for failing to deliver one hundred and nineteen bales of cotton, agreeing with the sample and the marks, o. It is entirely clear on the facts, that no particular lot of cotton was contemplated. The description in the bought note is:
    WXT 112 J P O 7
    119
    The description in the delivery order is:
    WXT 106 J P 0 13
    119
    Either it was not a sale of a particular lot, and the judge’s charge at fol. 192-3 was erroneous, or no order to deliver that particular lot was ever given, and the motion for nonsuit should have been granted.
    IV. But if we grant that it was a particular lot which was agreed to be sold, the judge -was equally wrong. a. The rule is that where something is to be done by the seller to ascertain the quantity of the article sold, the title does not pass (1 Pars, on Cont. 441 ; Zagury v. Furnell, 2 Campb. 240 ; Rugg v. Minett, 11 East, 215 ; Fitch v. Beach, 15 Wend. 221 ; Barly v. Ogden, 3 Johns. 408 ; Guard v. Prouty, 34 Barb. 456 ; Terry v. Wheeler, 25 N. Y. 524). Here the cotton required to be weighed and to be sampled. The title, therefore, did not pass. b. The weighing was a condition precedent. It could be waived by the purchaser, but unless waived it must be complied with. This weighing, which was the condition precedent, was the weighing of the article sold—the one hundred and nineteen bales—and unless the plaintiffs show that there was a waiver of this weighing of the lot, they cannot recover, and the defendants were entitled to a dismissal of the complaint, u. The only things, which can be claimed to have been a waiver of this condition, are the acts of the sampler, Bolton, performed in consequence of instructions given him by Willetts. The only instructions, at the farthest, were to sample the cotton and re-store it in the name of Tupper & Beattie. And the only evidence of any authority in the matter, from them to Willetts, is in his answer to the eighth interrogotory, in which he says he wrote the words, “Re-store for account Tupper & Beattie,” by direction of Beattie, d. The amount of this is, that Beattie directed Willetts to have the cotton re-stored for the defendants ac-. count. This made Willetts the special agent of the defendants for that purpose, and Bolton could have no more authority than Willetts had ; and if either he or Willetts exceeded their authority, the defendants are not bound (1 Pars, on Cont. 40), and the plaintiffs and their agents are chargeable with knowledge of those powers, as they in fact were (Dows v. Perrin, 16 N. Y. 330 ; Smith v. Tracy, 36 N. Y. 86). ¡Neither Willetts nor Bolton, therefore, had any authority from defendants to do anything but re-store the lot of one hundred and nineteen bales. They had no authority to receive or re-store seventy bales or forty-two bales (Davenport v. Bucklamd, Hill & Denio, Supp. 75 ; Oliphant v. Mackey, 41 Barb. 446). e. The defendants, therefore, never having given authority to Willetts to restore a less quantity than one hundred and nineteen bales, have never waived the condition precedent of the weighing of the whole lot. f. W ith reference to the sampling, the case is even stronger. All the considerations which apply to the weighing, apply to it, and this additional one, that the sampling was never completed as to any bale. Sampling is composed of two acts. 1. The taking out of the sample from the bale; and, 2. The comparing of the sample with the sample by which the sale was made. The latter act is the more important; and, as appears by the evidence, it is performed by the broker who makes the sale.
    
      Wm. Henry Anthon, attorney and counsel for respondents, urged:—
    The general principles of law upon which the plaintiff relies to sustain the judgment are as follows:
    
      Contract of sale.
    
    The broker is the agent of both parties, and as such, may bind them both by signing the same contract for buyer and seller (Abbott, Ch. J., Grant v. Fletcher, 5 B. & C. 436). The bought and sold notes are a sufficient memorandum of the bargain within the statute of irauds, though there was no entry in the broker’s books (Groom v. Affalo, 6 B. & C. 117). But, in the present case, there was such an entry in the broker’s books. A broker, who is employed by both parties, the one to sell and the other to buy, is the agent of both, and a memorandum of the terms of sale made by him in writing, and delivered to the parties, is the best evidence of the contract (Merritt v. Clason, 12 Johns. 102 ; Allan v. Aguire, 5 N. Y. Leg. Obs. 380, Common Pleas, General Term).
    
      Delivery.
    
    When no time for delivery is specified in the contract of sale, the seller has a reasonable time therefor, and it is for the jury to judge from the circumstances of the case what time is reasonable (Terwilliger v. Knapp, 2 E. D. Smith, 86). Selecting goods, and putting them one side in the seller’s shop for the buyer, held to be a sufficient delivery (Brewer v. Salisbury, 9 Barb. 511). One who bought goods in a public store took an order on the storekeeper, and afterwards sold the goods by delivering the order to his vendee, who had them re-marked in his own name—held to be a sufficient delivery (Hollingsworth v. Napier, 3 Caines, 182). When, upon a sale of grain in store, in the city of Hew York, a measurer appointed by the board of measurers has measured the quantity, and the buyer has received an order of the storekeeper for the grain, the delivery is complete (Superior Court,1856, McCready v. Wright, 5 Duer, 571). When the articles are ponderous or bulky, or cannot conveniently be delivered manually, it is enough that they are put under the absolute power of the vendee, or that his authority, as owner, is formally acknowledged, or that any act is done importing a surrender on one side, and an acceptance on the other (1 East, 192; 5 Johns. 335 ; Story on Sales, 311 ; 12 Mass. 33 ; Stanton v. Small, 3 Sandf. 230, N. Y. Superior Court, 1849 ; Shindles v. Houston, 1 N. Y. 261).
    As long as anything remains to be done by the seller, to ascertain the value, quantity or quality of the goods, the delivery is not complete (Outwater v. Dodge, 7 Cowen, 85). A contract for the sale of goods is complete when nothing remains to be done by the seller to ascertain the identity of the property, or its quality or quantity (Olyphant v. Baker, 5 Den. 379 ; Crofoot v. Bennett, 2 N. Y. 258 ; Terry v. Wheeler, 25 N. Y. 520).
    Where property, which is the subject of a contract of sale, is destroyed by fire while the contract is in course of execution, the question upon which of the parties the loss of the property destroyed ought to fall, depends upon who had title to it at the time of its (destruction. If nothing remained to be done by the seller, the. loss falls upon the purchaser (Brady v. Wheeler, 4 Robt. 18).
    The judgment of the special term, upon the verdict of the jury, should be sustained.
   By the Court.—Monell, J.

The chief question in this case arises under the refusal of the court to charge the jury that the contract of sale was entire, and could not be satisfied by a delivery, or tender of delivery, of a quantity less than the whole. The evidence justified the finding of an actual delivery of seventy bales. They were taken from the warehouse, sampled vand weighed, and by the direction of the defendants, re-stored for their account. That constituted a delivery of the seventy bales. Before a like delivery of the remainder could be made, the warehouse and its contents was destroyed.

The bought and sold notes did not make this a completed sale, so as to vest the title to all the cotton in the defendants. Something remained to be done by the seller to ascertain the quantity, and by the purchaser to ascertain the quality. To vest the title in a purchaser, upon a sale unaccompanied by a delivery, nothing must remain to be done by the seller (Bradley v. Wheeler, 4 Robt. 18 ; affirmed on appeal, 44 N. Y. [5 Hand] 495). It is true that in one case (Crofut v. Bennett, 2 N. Y. 258) it is held, that merely having to weigh the commodity, to' ascertain the price of the whole, at the rate agreed upon, where the goods are otherwise clearly identified, will not prevent its being a complete sale; but I think the clear weight of authority is otherwise ; and if anything remains to be done by the seller, to ascertain its identity, quantity or quality, the title does not pass until all that is done (Bradley v. Wheeler, supra, where the cases are collected).

The commodity in this case was divisible and capable of a separate physical delivery? Each bale could be separately weighed and sampled, and as weighed and sampled passed over to the purchaser; but that circumstance did not make the contract divisible, or of itself, render it capable of a separate physical performance.

The fact, as found by the jury, that the sale was of a specific definite lot of cotton, and not of one hundred and nineteen bales of cotton of a certain quality, did not relieve the plaintiffs from the necessity of a complete performance, as a condition precedent to a recovery, unless such a performance was rendered impossible, or was excused by what happened after the partial delivery was made.

The verdict in this case cannot, in my judgment, be sustained on the ground that the title to all the cotton had become vested in the defendants, by the mere force of the bought and sold notes. The sale was of one hundred and nineteen bales of cotton of specific marks, at thirty-one and a quarter cents a pound. The quantity had to be ascertained by actually weighing ; and I think it is very clear that the weighing was to be done by or under the direction of the plaintiffs.

On this point, I am unable to distinguish this case from Joyce 'v. Adams, 8 JY. Y. 291. The bought and sold notes were, in terms, almost identical, and the cotton was, before delivery, destroyed by fire. That was held to be an uncompleted sale, and the title to the cotton as remaining in the seller. And the court put its decision on the ground that it was the duty of the seller to weigh the cotton, before the price could be computed, “ and until that was done, the cotton was not even ready or in a condition for delivery.”

It is clear, therefore, I think, that treating this as an entire and indivisible contract, the plaintiff cannot recover upon it, as a completed sale of the whole number of bales. And it also follows, that whether treated as a contract for the sale of a specific lot of cotton, or as merely a contract for the sale and delivery of one hundred and nineteen bales of a certain quality of cotton, in either case 'a delivery of any number of bales, less than the whole, would not be a performance of the contract.

What is an entire and what is a severable contract, is not clearly defined. Much depends upon the nature of the contract; something upon the intention of the parties. Where there is a purchase of different articles at different prices, at the same time, the contract must be several as to each article, unless the taking of the whole was rendered essential by the nature of the subject matter,, or by the act of the parties. But when the purchase is of a specific commodity, or of several of a specific commodity, at a fixed price, either for the whole or for each part, and there is no intention, expressed or implied, of a several performance, the complete fulfillment is a condition precedent.

The contract in this case was entire and indivisible, and required a full performance. It was for the sale and purchase of one hundred and nineteen bales of cotton, to be paid for on delivery, and a delivery of any number less than the whole would not be a performance of the condition.

In Russell v. Nicoll, 3 Wend. 112, a contract for the sale of five hundred bales of cotton, cash on delivery, was held to be an entire contract, imposing no obligation on the purchaser to receive less than the whole. And in Baker v. Higgins, 21 N. Y. 397, which was a contract for the sale of a specific quantity of brick at a stipulated price per thousand, it was held to be an indivisible contract. In that case,'there had been a part delivery and acceptance of such part by the purchaser, and the action was to recover for such part at the stipulated price, and it was held that the seller could not recover without showing a delivery, or an offer to deliver, the whole.

This is not a case of acceptance of a part of the goods while in the course of accepting the whole, so as to construe it into a waiver of an exact performance of the entire contract. No such waiver can be imputed to the defendants. Their demand was for the whole, and it was no fault of theirs that the delivery was stopped. They were ready to receive, and did no act which could be deemed a waiver of their legal right to refuse payment for the portion delivered until they had received the whole.

I have not regarded it as material whether the purchase in this case was of specific and identified cotton, or generally of the number of bales of cotton mentioned in the contract. The rule as to performance is the same in either case, and the defendants had the right to require a delivery of the whole number, and the plaintiffs could have no right of action for any part without showing a delivery, or an offer to deliver, the whole number of bales mentioned in the bought and sold notes.

Nor was performance excused in this case by the happening of the fire, by which all the cotton, including the seventy bales actually delivered, was destroyed. Performance is excused when it is prevented by the act of Grod or of the law, but the happening of a casualty, or inevitable accident or other unforseen contingency will not.

In Norton v. Woodruff, 2 N. Y. 153 the property was destroyed by fire before delivery, and the court held it did not excuse performance. And in Joyce v. Adams, supra, after a delivery of part the remainder was destroyed by fife. The purchaser demanded a delivery, and then brought his action to recover a deposit made upon the contract, and the court sustained the action.

The rule on this subject is very clearly stated by Mr. Justice Edwards in Hammond v. Bingham, 12 N. Y. 99, 107. He says, “ Where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by contract.”

The meritorious question in this case is, which of the parties shall suffer the loss. One or the other must, but I cannot see any reason why the defendants should be selected. They had no title to the whole property, so as to make it their loss; nor were they responsible for any part until there was a delivery of all.

The respondents’ counsel relied very much upon the case of Bradley v. Wheeler, supra, as settling the law of the case in his favor. But a moment’s examination of that case will show, that the facts were quite different, and that decision is put on the ground that nothing remained for the seller to do, and therefore it was a complete sale, vesting the title in the purchaser.

In conclusion, I am of opinion that the defendants were entitled to have the jury instructed as they requested, and that their exception to the refusal was well taken. They were also entitled to have their motion for a nonsuit granted.

For these errors the judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.  