
    George Lekas and George Drivas, Appellants, v. Charles Schwartz, Respondent.
    (Supreme Court, Appellate Term,
    November, 1907.)
    Sales — Remedies of seller: In general — Election of remedies; Action ■ for price — Questions for the jury.
    Where the vendee, under an executory contract for the sale of personal .property, refuses to complete his purchase the vendor may keep the goods as his own and sue for the difference between the contract price and the market value of the goods at the time and place of delivery.
    Where defendant contracted for the purchase of one hundred cases of figs at a certain price per pound, and, after the delivery of thirty cases which defendant accepted and paid for, called at plaintiff’s place of business and stated that he would not take any more figs beeaqse they were damaged, and the remaining seventy cases were never delivered because no order was given for them, and the plaintiff, electing to sue for the difference between the contract price and the market value of the goods at the time and place set for delivery, makes out a prima facie case, a denial 'of his motion to go to the jury and a dismissal of,his complaint is error.
    Whether or not the figs sold were damaged and not according to sample was a question of fact, as was also defendant’s denial of refusal to accept the figs, and the difference of plaintiff and defendant as to the market value was also a question of fact for the jury-
    Appeal by the plaintiffs from a judgment of the Municipal Court of the city of Hew York, second district, borough of Manhattan, rendered in favor of the defendant.
    Henry Hoelljes, for appellants.
    Albert A. Hovell, for respondent.
   Gildersleeve, J.

The action was tried before the court with a jury, and the complaint was dismissed. Plaintiffs appeal. On or before December 24, 1906, .defendant called at plaintiffs’ store and examined five or six cases of figs, - which he found in good condition; and, on December 24, 1906, he made the following contract in writing, viz: “ This is to certify I have this 24th day of December, 1906, bought from Messrs. Lelcas & Drivas (plaintiffs), 17 Roosevelt St., City, 100 cases of string figs at five and three-quarter cents per pound, to be delivered at my store, 87 Ludlow St., from to-day until the 15th of February, 1907, value of which to be paid ten days after delivery of the goods.” Plaintiffs’ testimony shows substantially this state of facts, viz.: Thirty cases were delivered to defendant, who accepted and paid for the same. Thereafter the defendant called at plaintiffs’ place, and stated that he would not take any more figs because they were damaged. Paintiffs’ bookkeeper replied: “We will change them for you; you have signed the contract and you must take the figs.” The defendant said: “ You try to sell the figs, and, if you can, sell the balance of them.” Defendant took-some figs out of a case in plaintiffs’ store and said: “ I can’t use any more of your figs, they are damaged.” This statement was true as to these particular figs, as the figs which defendant showed plaintiffs’ bookkeeper had been damaged by being kept in a hot cellar; but, whether these were some of the figs which had been sold to defendant, does not appear. Defendant said he could not use any more figs like those, that they must he according to sample. The remaining seventy cases were never delivered, because defendant never gave any order for them, the bookkeeper says. The market value of figs on February 15, 1906, had fallen from five and three-quarter cents a pound, which was also the contract price, to three and one-half cents a pound, making the difference on the seventy cases amount to $118.12, according to plaintiffs’ testimony. One of the plaintiffs states that the figs were sold in sample, and that the samples shown defendant were good figs, and fair samples of the rest; but that defendant did not examine all of the one hundred cases, but only five or six of them. Some time in January, 1906, plaintiff went to defendant’s store and asked him: “ Shall I send you the balance of the figs ? ” Defendant replied: “ I don’t want them. They don’t look very good. They are damaged. I don’t like the quality.” He said he would not take them at the price; that he had bought them elsewhere at four and. one-half cents to four and one-quarter cents. A fig dealer named Calogeras swears he examined samples from the one hundred cases sold to defendant by plaintiffs and that they were good figs. He picked out five boxes at random from the .lot for examination. The defendant denies the fall' in market value of figs, as claimed' by plaintiffs, and swears that the figs were damaged and of poor quality. He also denies that plaintiffs ever offered to send the remaining seventy cases of figs, and claims that he never refused to accept the balance, if the figs were according to sample. Another witness was called by defendant to show that plaintiffs’ evidence as to the market value of the figs on February 15, 1906, was incorrect. At the end of the whole case defendant moved to dismiss the complaint and plaintiffs asked to have the issues submitted to the jury. The court refused to grant the plaintiffs’motion and dismissed the complaint. .It seems to us that the plaintiffs made out a prima facie.c&se, and that the issues of fact raised by the conflict of proof should have been left to the jury to decide. The main argument in support of the dismissal of the complaint is the failure to show a tender of the goods to the defendant on or before February 15, 1906. The rule is that, in cases where by the terms of the contract the acts of the parties are to be concurrent, it is the duty of one who seeks to maintain the action for breach of contract, either by way of damages for the non-performance, or for the recovery of money paid thereon, not only to be ready and willing to perform on his part, but he must demand performance from the other party; but the qualifications to this rule are to be found in cases where the necessity of a formal tender or demand is obviated by the acts of the party sought to be charged, as by his express refusal in advance to comply with the terms of the contract in that respect, or where it appears that he has placed himself in a position in which performance is impossible. Ziehen v. Smith, 148 N. Y. 558-561. Where the acts or declarations of a party are equivalent to notice to the other party that he does not intend to comply with the terms of the contract on his part and perform the contract, a tender by the first party is not necessary. Cornell v. Fox, 95 App. Div. 73; Cornwell v. Haight, 21 N. Y. 462; Stokes v. Mackay, 147 id. 235. The plaintiffs say, as we have seen,, that the defendant told them in January that he would not take the figs; and plaintiffs’ bookkeeper swears that defendant told him the same thing, although the bookkeeper offered to have the figs changed if defendant objected to the particular lot sold. So far as defendant denies a refusal to accept the figs, an issue of fact is raised that should have been submitted to the jury. Whether or not the figs sold were damaged and not according to sample was also a question of fact for the jury. The fact that plaintiffs kept the seventy cases does not deprive them of their right of action; for, when the vendee of personal property, under an executory contract of sale, refuses to complete his purchase, the vendor may keep the articles for him and sue for the entire purchase price; or he may keep the property as his own and sue for the difference between the contract price and the market value of the goods at the time and place of delivery. Ackerman v. Rubens, 167 N. Y. 408 ; Moore v. Potter, 155 id. 486. The plaintiffs adopted the latter remedy, and the difference in the estimates of plaintiffs and defendant as to the market value was another question of fact for the jury. The rule is that, if in any view of the evidence a verdict might have properly been rendered for the plaintiff, or if there were questions of fact which might-have been" determined for plaintiff, and which, if determined in his favor, would have entitled him to recover, the case should not be taken from the jury. Pratt v. Dwelling House M. F. Ins. Co., 130 N. Y. 212; Greene v. Miller, 74 Hun, 271.

The. judgment must be reversed and a new trial granted, with costs to appellants to abide the event.

Leventritt and Erlakger, JJ., concur in result.

Judgment reversed and new trial granted with costs to appellants to abide event.  