
    International Money Box Company, Appellant, v. Southern Trust and Deposit Company, Respondent.
    
      Contract of sale of merchandise “ F. O. B. New York City ” — a delivery to a carrier, with direction to deliver it to the vendee at Baltimore, Md., and collect cha/rges, is not a compliance therewith — effect of a repudiation of the contract — admission in a defense to which a demurrer has been sustained—it must be considered as a whole.
    
    "Where a contract for the sale of merchandise provides that delivery should be made “ F. O. B. New York City,” the delivery of the merchandise to an express company at New York city, with directions to deliver it to the vendee at its place óf business in Baltimore, Md., the cost of carriage to be there collected,' is insufficient to pass the title of the merchandise to the vendee, as the vendor cannot bind the vendee by a tender of the merchandise at a place different from that specified in the contract, nor annex to the tender the burden or condition of paying the carrying charges.
    The repudiation of the contract by the vendee obviates the necessity for a tender of the goods.
    Where a demurrer interposed by the plaintiff to one of the separate defenses set up in the answer has been sustained, the plaintiff cannot avail himself of an alleged admission contained in such defense.
    If an allegation in a pleading be offered in evidence as an admission by the pleader, the entire allegation must be taken into consideration.
    Appeal by the plaintiff, the International Money Box Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day ■ of November, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      Clarence D. W. Rogers, for the appellant.
    
      Omar Powell, for the respondent.
   O’Brien, J.:

The action was for goods sold and delivered under a contract between the parties as follows : The party of the first part hereby agrees to and does sell unto the party of the second part and the party of the second'part hereby agrees to and does buy of the party of the first part 500 savings boxes patented in the United States of America under Letters Patent No. 664990 for the sum of One dollar ($1.00) each net cash, F. O. B. New York City. Shipments to be made as follows : 100 to be shipped. at once and the balance as ordered by party of the second part. It is understood and agreed that the party of the second part shall order all of the said 500 j savings boxes from the party of the first part within one year from" date of . this agreement. It is understood and agreed that the International Money Box Company is not held responsible for anything further than that which is written in this contract, and this contract or any portion of it is not subject to countermand.”

On the trial the evidence offered by the plaintiff consisted of proof of the making of the contract and the introduction of stipulation dated June 29, 1903, between the attorneys, which states :

“I. On or about April 1st, 1902, in part' performance of the contract mentioned in the complaint herein and upon which this action is brought plaintiff delivered to defendant 100 boxes of the kind and quality specified in said contract for which the defendant paid to the plaintiff the contract price, to wit, $100.
“II. On or about February 28th, 1903, without further order or direction from defendant, and in order to carry out and complete performance of said contract on its part, plaintiff delivered to an express company at New York City 400 additional boxes of the kind and quality specified in said contract and the complaint herein, with proper direction to deliver the same to the defendant at its place of business in Baltimore, Maryland (charges of carriage collect).
“III. On March 1st, 1903, said express company tendered the same to defendant at defendant’s place of business at Baltimore, Maryland.
“ IV. Defendant then and there refused to receive or accept said goods.
“ V. Said express company thereupon took said goods away and offered same back to plaintiff, but plaintiff refused to accept' them and the express company has ever since retained possession thereof.
“ VI. Defendant has made no other payments on account of said contract than the $100 above' specified.
“ The parties hereto reserve the right to object to the introduction in evidence of the foregoing stipulation or any part or paragraph thereof upon the ground that the facts stated therein are irrelevant, immaterial and incompetent.”

With respect to delivery it was incumbent upon the plaintiff to prove either that the defendant had expressly repudiated the contract, which would have made a delivery needless and futile, or that a delivery was made in accordance with the terms of the contract. Upon the latter subject the contract provided that the delivery was to be made F. O. B. New York city, and the proof was that without a request from the defendant the plaintiff delivered to an express company at New York city the 400 boxes with directions to deliver the same to the defendant at its place of business at Baltimore, Md., the charges of carriage to be there collected. Such a tender we do not think was sufficient to pass the title of the boxes to defendant because the plaintiff could not bind the defendant by tender at a place different than that specified in the contract nor could it annex to the tender the burden or condition of paying the carrying charges.

The failure, therefore, to prove a proper legal tender was fatal to plaintiff’s right to recover upon this branch of the case.

The plaintiff insists, however, that there was evidence tending to show that the defendant had repudiated the contract, and that, therefore, a tender was unnecessary. Our attention is called to "what is said to be an admission in a separate defense embodied in the original answer in which the defendant alleged that the contract was canceled on August 29, 1902, upon which date “ the defendant notified the plaintiff not to manufacture or ship any more savings boxes .* * * and that the defendant would not accept the said savings boxes, and that the defendant would not keep or perform the contract.”

This so-called defense cannot aid the plaintiff and for the reasons, first, that this defense was demurred to by the plaintiff, and the demurrer was sustained, and strictly speaking it should not have been included in this record. And furthermore, if we are to consider it, the record does not show that it was offered by the plaintiff in evidence as an admission, and if it had been it would be necessary to take it as a whole from which the inference would follow that the reason for refusing to accept the boxes or to keep or perform the contract was as alleged by the defendant, that it had been canceled. Upon the failure to prove as alleged that the plaintiff had sold and delivered to the defendant the boxes, the court properly held that the plaintiff could not recover the amount sued for. The dismissal of the complaint, therefore, was right, and the judgment thereafter entered should accordingly be affirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed, with' costs.  