
    ROBERT J. GRAY, Respondent, v. FRANCIS T. WALTON, Appellant.
    
      Auction sale of chattels—failure of purchaser to remove property by time limited in terms of sale, and consequent loss thereof—when excusable—liability of vendor—implied warranty.
    
    Before Sedgwick, Oh. J., and Freedman, J.
    
      Decided June 5, 1885.
    Appeal by defendant from judgment entered against him upon the verdict of a jury, and from order denying motion for a new trial.
    Action to recover the value of certain goods purchased by plaintiff at an auction sale of the goods and chattels belonging to the St. James Hotel, which .he could not get, although he had paid for them. The sale took place on April 24 and 25, 1883. It was conducted by an auctioneer, under the direction of the defendant. The terms of sale, as expressed on the cover of the catalogue, put in evidence by the plaintiff, were as follows: “ Terms of sale. A satisfactory deposit required from all purchasers. All goods must be fully paid for before being-removed ; and, if not paid for within twenty-four hours after the sale, the deposit will be. forfeited, the sale annulled, and goods resold for account of the purchaser. All goods are sold as they are, and no allowance will be made for damaged articles. All goods must be removed at purchaser’s own cost and risk. Sale will also be made subject to terms as stated at time of sale.”
    it was also proved by the auctioneer and by his clerk that it was distinctly announced, at the opening of the sale and several times during the sale, that the goods would have to be removed before May 1, on account of the property then going into the possession of parties other than the defendant. The fact of such announcement having been so made, was uncontradicted, and was held by the court to be an undisputed fact in the case. A bill of the articles purchased was made out and delivered to the plaintiff on the evening of April 26. This bill the plaintiff claimed was erroneous in that he was therein charged with the sum of $50 for each of two washing machines, when in fact, as he contended, he had purchased both for the sum of $50. The plaintiff sought to have this error corrected, but the auctioneer was so busy, as he said, with the sale, that he was unable to see the plaintiff in regard to it until May 2, when an agreement in regard to this difference was effected. Then the plaintiff paid his bill, and the auctioneer stated to the plaintiff that the doors would be open in the afternoon, and that then he, the plaintiff, could get his goods. Plaintiff went on said .afternoon for his goods, but could not get them, and thereupon immediately notified the auctioneer, who then promised that he would see to it that plaintiff should obtain the goods. The defendant received the money paid to the auctioneer. The plaintiff having made several other attempts to get his goods, which proved unavailing, and all applications to the auctioneer and the defendant for them having resulted in nothing but promises, this action was brought. As the plaintiff and the auctioneer disagreed upon the trial as to the terms of the settlement of May 2, the learned judge who presided at the trial, submitted to the jury the questions as to what the original agreement was, and in doing so instructed them that, if the plaintiff agreed to pay $50 for each of the two machines, then it became his duty to remove his goods before May 1, and in such case he was not excused, by reason of the dispute which he had created, for not removing them before that time ; but that, on the other hand, if plaintiff’s version of the transaction was the correct one, and he had bid $50 for both machines, and it was so stated at the time to the auctioneer, the failure of the auctioneer to deliver a correct bill, and the subsequent negotiations based thereon, would excuse the plaintiff’s neglect in not talting the goods before May 1.
   The Court at General Term (after stating the facts as above), said :—“Of this disposition the defendant has no right to complain. There was a conflict which could only be determined by the jury. If the plaintiff had the truth on his side, there was no complete contract between the parties until May 2, and till then he had no right to remove the goods. Agreement in respect to the terms of the contract and payment then completed the contract, and then, for the first time, the title passed, and the plaintiff became entitled to the goods. Under these circumstances the defendant impliedly warranted the title, for the sale was not a sale of a right of action, but a sale of the goods themselves, and if nothing had been said as to a delivery, the law would imply, as a part of the contract, a license to call for the goods and to take them away. But the evidence went beyond, that. It showed that the defendant, through his agent, the auctioneer, at the time of the payment of the' purchase money which • the defendant subsequently accepted and retained, expressly agreed that the doors should be open in the afternoon of May 2, for the plaintiff to obtain his goods, and that after the plaintiff had thus called and failed to get the goods, further promises were made that he should have them. There was also evidence that the defendant delivered goods to other purchasers on May 2 and 3. Upon the whole case, therefore, there was abundant evidence to authorize the jury to find that the plaintiff was excusable in not having called for the goods before May 1, and, they having found so, their verdict should not be disturbed.

“ The fact that the goods were sold to be removed at the risk and cost of the purchaser, cannot relieve the defendant from liability. If the goods had suffered injury during removal, the loss would have fallen on the plaintiff. But that is not the contention. The plaintiff could not get the goods which the defendant by his contract was bound to deliver, in any condition whatever.

“Upon the facts which the jury must be deemed to have found, the measure of damages is the actual value of the goods at the time of the failure of the defendant to deliver them ; viz., on May 2, 1883. In this respect the jury were correctly instructed and their verdict does not appear to be excessive.

James K. Hill, Wing & Shoudy, for appellant.

Jacob IF. Miller, for respondent.

Opinion by Freedman, J. ; Sedgwick, Oh. J., concurred.

Judgment and order affirmed, with costs.  