
    James Thompson, Resp’t, v. Henry D. Leslie, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Failed May 11, 1891.)
    
    Sale—Agreement—Payment on delivery.
    Plaintiff sold defendant a lumber yard under a written agreement that an inventory of stock be taken at once, defendant to take control of the business at once, the price to be $2,000 cash and $8,000 in notes, and whatever amount over this that the inventory showed to be paid for at the market price. Before the inventory was completed defendant handed plaintiff's son a check for $2,000 and received the keys of the yard. Four days afterward plaintiff returned the check to defendant and notified him that, he must not assume possession until the inventory was completed and the notes given. The inventory was never completed. Held, tha" defendant had no right to possession, as the agreement was one which called for payment on delivery.
    
      Appeal from a judgment of special term, Kings county, restraining defendant from interfering with plaintiff’s lumber yard.
    
      Palmer & Boothby; for app’lt; William H. Mullen, for resp’t.
   Barnard, P. J.

—In November, 1888, the defendant conveyed to the plaintiff a lumber yard and stock of lumber with the books of account for lumber sold. The transfer was made to secure the plaintiff for a claim he had against the defendant. The informal understanding was that the plaintiff upon being paid his claim, including money paid for future purchases of lumber after crediting the collections from the books, was to convey the property back to the defendant. The plaintiff took possession of the property and conducted the business on his own account until the 5th of June, 1889. Thomas G. Patterson then entered into-an agreement in writing with the plaintiff on these terms.

“ I, James Thompson, of Staten Island, hereby agree to sell back to H. D. Leslie the lumber business sold to me by him on November 21, 1888, as per bill of sale of that date for the firm of Leslie & Patterson, to wit: H. D. Leslie of West New Brighton and Robert Patterson of Jersey City, N. J., are the following creditors.

“ Whatever stock is over the amount at the time I purchase it, to be paid for at market prices. The above firm of Leslie & Patterson to assume the debts due on purchase of lumber • by me. Also to assume the amount of cash paid by me for H. D. Leslie’s account to the amount of $12,000, secured as follaws: $2,000 in cash and $8,000 in notes, tobe made payable in one, two, three, four, five and six months from date of purchase endorsed by T. G-. Patterson of New York City. An inventory of stock to be taken at once satisfactory to both parties. The firm of Leslie & Patterson to take control of.the business at once.

“Signed, T. G. Patterson.

“James Thompson.”

This agreement was dated 19th of May, 1889, but was not executed until the 5th of June following. The parties at once began to take an inventory and continued until the 13th of June, 1889, when Leslie & Thompson appraisers, left and did not return. The inventory was not finished. On the 8th of June, 1889, Henry D. Leslie handed a check to plaintiff’s son for $2,000, endorsed by T. G. Patterson, stating to him that everything was all right, and that he would take possession on Monday, June 10, 1889. The plaintiff had, therefor, delivered up the keys to him, and on Monday Leslie took possession. The plaintiff on Monday, June 10, 1889, returned the check to the defendant, who has since retained the same, and he notified Leslie-that he must not assume possession until the inventory had been taken and the notes given. On the 19th of June, 1889, this action was- commenced, upon Leslie claiming a right to take and keep possession of the yard. The defendant had no right to the possession. The general rule is well established that upon a sale of personal property for cash, the payment and delivery are to be simultaneous acts. Empire State, etc., Co v. Grant, 114 N. Y., 40; 22 N. Y. State Rep., 302.

The agreement is one which calls for payment on delivery. The sale is upon the express condition that the purchaser secure a debt of $12,000 by notes endorsed by T. Gr. Patterson, as well as the payment of $2,000 in cash. The expressions in the agreement that the inventory is to be given at once, and that the purchaser is to take control of the business at once, are not to be construed as making an exception to the general rule that the performance and the delivery must be simultaneous acts. There was no waiver of the condition. Proof of a waiver must be clear. On Saturday, June 5, 1889, the $2,000 check was given and no notes; the inventory was commenced on Monday and on Thursday all effort to take it fell through. On Monday the check was returned, and the plaintiff protested against Leslie assuming any control of the business. What was done was done upon the supposition that the inventory would be completed and the notes given, and did not amount to a delivery of possession with the intent to transfer the title and" waive the condition. The exceptions are not well taken. The contract alone controlled the time of delivery. The consideration paid by plaintiff in November, 1887, was immaterial; the contract made the consideration for the re-transfer. If there was lumber delivered by Leslie to plaintiff from the yard on the' 12th of June, 1889, it would not tend to establish a waiver under the other evidence in the case.

The judgment should, therefore, be' affirmed, with costs.

Dykhan and Pratt, JJ., concur.  