
    Stanton v. Small. The Same v. The Same.
    A contract for the sale of goods, to be delivered at a future day, Is not Invalidated by the circumstance, that at the time of the contract, the vendor neither has the goods in his possession, nor has entered into any contract to buy them, nor has any reasonable expectation of becoming possessed of them at the time appointed for delivering, otherwise than by purchasing them after making the contract.
    Where a valid executory contract is entered into for the purchase oí a large quantity of flour of a specific quality, to he delivered at a future day, a notice on the day fixed of readiness to deliver, accompanied by accepted orders upon the party having the flour in store, with an offer to make an actual delivery, is sufficient.
    Where goods are ponderous or bulky, or cannot conveniently be delivered manually, the law does not require an actual delivery thereof, but only that they should be put under the absolute power of the vendee, or that his authority as owner should be formally acknowledged ; or that some act should be done typical of a surrender of them on the one side, and of an acceptance of them on the other.
    The law only requires such a delivery as is consistent with the nature and situation of the thing sold.
    Where, in an action upon a contract for the sale and purchase' of flour, brought by the vendor against the purchaser, it. is proved that it is the usage for flour, in a storehouse or vessel, to be sold by accepted delivery orders, and to pass by the transfer of the orders from hand to hand, without actual delivery of the flour, such usage will be held to have entered into the contemplation of the parties, and to have constituted a part of the contract.
    Where a vendor of flour, upon the purchaser’s objecting to the manner of the tender of the flour, (which was made by accepted orders of persons having it in store,) offers to turn it out on the side-walk, or to cart it to the purchaser’s door, or to any other part of the city he will name, provided the purchaser will say he wall take it, and the purchaser tells the vendor to do as he pleases, without telling him what to do, nor whether he will take it, it is a sufficient tender, on the part of the vendor.
    Upon an agreement for the purchase of flour, deliverable at a future day, the damages for a refusal to accept, and pay for the flour, is the difference between the contract price and the market price at the time specified for delivery, with interest.
    (Before Oakley, Ch, J., and Vanderpoel and Sandpoiid, J. J.)
    Sept. 20, 21 ;
    Oct. 20, 1849.
    These were actions brought to recover damages for the nonacceptance of a quantity of flour sold by the plaintiff to the defendant, under the following contracts:
    “In consideration of one dollar, to me in hand paid, the receipt of which is hereby acknowledged, I have purchased of A. P. Stanton fifteen hundred barrels superfine flour, (Ohio, Genesee, or Michigan,) flat hoops, in good order, at the rate of eight dollars, thirty-seven and a half cents per barrel, deliverable, at the option of the seller, at any time (half each month) during the months of July and August next, cash on delivery, and not to consist of more than six different brands.
    “ New York, June 11th, 1847.
    “ William Small.”
    “In consideration of one dollar, to me in hand paid, the receipt of which is hereby acknowledged, I have purchased of A. P. Stanton fifteen hundred barrels superfine flour, (Ohio, Genesee, or Michigan) flat hoops, in good order, at the rate of seven dollars per barrel, deliverable, at the option of the seller, at any time (half each month) during the months of July and August next, cash on delivery, and not to consist of more than six different brands.
    
      “ New York, June 17, 1847.
    “William Small.”
    The causes came on to be tried before Sandford, Justice, and a jury, on the 20th June, 1848. Upon the trial, after proof of the contracts, it appeared in evidence, that on the 30th day of July, 1850, the plaintiff made to the defendant two tenders in writing, each of 750 barrels, upon each of the two contracts, with an offer to deliver the flour, at the same time tendering accepted orders for the flour upon the parties having the same in store, on the wharf, or in barges. At the time of the tender, the plaintiff rendered to the defendant the bills of the flour, and demanded payment. It further appeared, that on the 24th of August, the plaintiff made to the defendant similar tenders upon each of the contracts, accompanied as before by accepted orders for the flour upon the persons having the same in store and in barges. Bills of tbe flour were also rendered, and payment demanded. In each case the written tenders stated the flour to be in accordance with the terms of the contract. It further appeared in evidence, that the flour embraced in the tender of the 30th of July, was superfine Genesee flour, in barges at piers Nos. 4, 5, and 6 East Elver, and that on the orders being tendered, the defendant said he would take no man’s orders for the flour. The acceptor of the orders being present, informed him, that he, the acceptor, had 1500 barrels of flour of plaintiff’s, which he was ready to deliver to the defendant on those terms. That subsequently, however, he accompanied the plaintiff to examine the flour. That at pier No. 4, there was a lot of flour of 699 barrels, marked “ Orleans Culvert,” partly on the dock and partly landing. At pier No. 5, a lot marked “ II. B. Williams,” of 550 barrels, landing from a barge; and at No. 6, a lot marked “ S. Mills,” on a barge, sufficient to make up the 1500 ban-els. Each of these lots was tendered to the defendant. At the time the tender of the first two lots was made, the defendant simply remarked, “ oh ! well, where is the rest of it ?” but he made no objection as to quality. To the third lot he remarked, that it was not such flour as the contract called for. It appeared from the testimony, that the flour corresponded with the contract, and was in good order.
    On the 24th August, the defendant replied to the tender made at that time, that he would take no man’s orders for the flour; but subsequently accompanied the plaintiff to examine it. A portion was “New York Mills,” 341 barrels on the wharf at Cortlandt street. Tbe plaintiff tendered this to the defendant, so far as it was superfine and in good order. The next lot, 222 barrels, was in the hold of the barge Superior. A barrel of this was exhibited, and the plaintiff made a similar tender. The next lot was 100 or 800 barrels, in the loft of Dows & Cary’s store. Out of this the plaintiff tendered sufficient to make up the 1500 barrels, after taking what there was of the previous lots in good order, and also which was superfine and in order of a lot of 500 barrels in Greenwich street, of Erie Mills. After the examination was concluded, the plaintiff again offered and tendered the several lots on either of the contracts, and demanded payment. The defendant replied, he did not think he was bound to take flour in the hold of a vessel, or in the fourth story of a store. The plaintiff then offered to turn the flour out on the sidewalk, or cart it to the defendant’s door, or to any other part of the city he would name. The defendant replied, he could do as he pleased. No objection was made to the quality or condition of the flour. It was all Genesee flour, and in good order.
    It appeared by the testimony on the paid of the defendant, that a portion of the flour tendered by plaintiff had been contracted for by the party by wdiom the accepted order had been given, upon a verbal agreement, and that nothing had been paid on the purchase, although it was in his possession. That another portion had been agreed to be purchased for a price not then named. That some of it had not been inspected or coopered, and upon some the freight remained unpaid, and that no particular 1500 barrels had been set apart for tbe defendant at the time of either tender. A witness for the defendant swore to the inferior character of some of the flour, and the defective condition of some of the barrels embraced in the quantity examined.
    Evidence was given of a usage in respect of the delivery of flour, when sold in large quantities in the city of New York, and as to inspection and cooperage, which is stated in the opinion of the court.
    It appeared that the market price of the flour in July was $5 75, and in August, $5 81J per barrel.
    A verdict was rendered for the plaintiff, subject to the opinion of the court on a case to be made, for tbe amount claimed, being the sum of $3309 76 in one cause, and $3072 43 in the other, besides costs.
    
      F. B. Cutting, for plaintiff.
    I. By the memorandum of the defendant, (dated 11th June, in the first cause, and 17th June in the other,) a valid executory contract was made by him to purchase flour, not identified at the time, but to be taken of a specified quality, on a future day, and at a specified price, payable on delivery, leaving it undecided and unimportant whether the vendor had an article of the kind on hand at the time of the contract, or was to procure it after-wards. The validity of the contract was assumed by both parties, by their conduct. There is nothing to show that either understood it was a wager, and no point was made as to its validity, on the trial. Every intendment, even of extraneous facts and circumstance, may he made if necessary to maintain it. (1 Comstock 90.) For contracts of similar character, and for distinction between executed and executory, &c., see Howard v. Homy, 23 "Wend. 350, and cases there cited; 17 Wend. 277 ; Downer v. Thompson, 1 Hill 138; 6 Ibid. 208; Hague v. Porter, S Hill 141, and cases there cited. The English courts also maintain such contracts. (HeJMewMte v. Mclforine, 5 Meeson & Welsby, 462.)
    II. It appears the defendant has not taken nor paid for the flour, nor demanded its delivery, nor offered to pay for it. The plaintiff had only to satisfy a jury, that when he gave notice, and offered to complete the contract, lie could and would have done so, if the defendant had performed on his part. It is a question of fact, whether he was substantially ready and willing. A technical tender, with the exact formalities required to pass the title, or to place the goods at the risk of the buyer, was not necessary to entitle the plaintiff to the difference between the contract and the market price. The action, in this view, is not for goods sold and delivered, nor even for goods bargained and sold, in which the full price might he recovered; hut on the special contract, for not taking and paying for the flour. (Starkie oil Evidence, part 4, p. 162 — 4; Sands v. Taylor, 5 John. Rep. 395; Dement v. Smith, 15 Wend. 493; Downer v, Thompson, and Hague v. Porter, before cited.)
    HI. The notice of readiness to deliver, was abundant. The interest of the plaintiff to perform the contract is apparent. The evidence shows clearly that he was ready and willing to deliver. The fact of his readiness and design to make a full delivery, is not shaken by the defendant’s objections. Until the defendant showed an intention and readiness to accept and pay, (which he did not,) the plaintiff was not bound to go further. (Milk v. 
      (Jhrixdr, t ITiH’s Rep,lufi; Coke, Lift., 21u, b.; 2 Kent’s Com. 506-7.)
    TY. The flour be¡ug bulky and ponderous, a tender of the goods from the stores and boats, In' mere notice, and by orders, in compliance with the usual custom, was sufficient, i 12 Mass. Rep. 3o0 : 1 Shaw’s Rep. 144 ; C>(f r. Jlms-fmi, ?> John. Cases, 243 ; S'niii/sv. Tayh>i\ 5 John. Rep. 305 ; Sf/tu/i 8a nd w Morse, 8 John. Rep. 372; Phoney v. Hull, 1 Hill 89: Plmsnnt v. Paallefim, G Rand. 474, 486.)
    Y. The existence of liens, for freight, &c., was unimportant. They were not claimed nor enforced by the parties entitled to them. The objections as to liens, inspection, quality, place, Me., are all unimportant, were not made at the time, and were obviated by the general otters to deliver free of charge, and according to the contract. These miuufhn must obviously be left until an actual delivery, which defendant at no time acquiesced in or entered into.
    Yl. The damages are the difference between the contract price and the market price, at the time of the offer, with inf ere,-t, and the actual expense of finally disposing of the flour.
    
      A. 8. Johnson, for defendants.
    I. Upon a contract of sale, the vendor, in order to put the vendee in fault in not accepting and paying for the subject matter of the sale, must perform everything which in compliance with his contract he is bound to do, save the actual delivery and parting with the possession, so that the vendee, upon payment, may, without any further act on the part of the vendor, take into his actual possession the subject of the sale, in such condition as by the contract lie is entitled to have it, and thereby obtain a complete and perfect title to it. If the subject of the sale be indeterminate, the vendor must select and specify the objects on which he intends the sale to operate. (Bell’s Gout, of Sale, 82, 79; Smith’s Law of Contracts, 331.) The rule does not embarrass real business, and the court should not frame a rule for the convenience of speculative business, or which will encourage it.
    II. The offers made by the plaintiff to the defendant, relating to the July delivery, were not such as to put the defendant in fault, especially as they were accompanied by a demand of payment. (1.) As to the IT. B. Williams lot. The title had not passed from Wolfe to Cowing & Co., there being no contract in writing and no delivery, and no money having been paid — nor from Cowing & Co. to Stanton, for the same reasons. If the property did pass, Wolfe & Cowing had each a lien for the price. The carriers had likewise a lien, so far as the flour remained in their possession. (2.) As to the “ Orleans Culvert” lot. So much as remained in the boat was subject to a lien for freight. None of it was coopered, and some not inspected. (3.) As to the “ United States Mills.” Cowing & Co. had no title, nor any right to dispose of it. They held it as warehouse-men. They had not agreed to take it at all. No price for it was agreed upon between them and the owner.
    III. Take the three parcels together, no particular 1,500 barrels were set apart by Cowing & Co. for Stanton, not by Stanton for Small. As to part, neither Cowing nor Stanton had the property in the flour. Some of it was subject to liens for the price, and some for freight. Some was not inspected nor coopered.
    IY. The offers made by Stanton, were made as a full compliance with the contract on his part. lie proposed to do nothing further, except to receive the money. If Small, when Stanton finally offered the flour and demanded payment, had yielded to the demand and paid, he could not have taken any particular 1,500 barrels of flour as his own. If he had accepted it, and taken some 1,500 barrels from the lots, Banks might have replevied from him the “United States Mills” flour, Wolfe might have refused him possession of Ms lot, and the carriers of that on which they had a lien; and he would have had no remedy for the expense of coopering or inspection,
    Y. Small ovas not bound to take the risk of the loss of the flour, not landed from the boats at the time of the tender, as he would-have done, had he accepted Stanton’s offer as a delivery, and paid the price.
    YI. The non-delivery by Stanton in July, formed a complete answer to any demand founded upon the contracts for delivery in August, the contracts being entire.
    
      TIL At the time of the August tender, the title to the flour offered, remained in Dows & Cary. There was no contract of sale in writing, no part of the price paid, and no actual delivery or acceptance of any part of the flour, and no designation of any particular 1,500 barrels. (1.) As to so much as was not landed, it was uninspected, not coopered, nor completely delivered. While on the boats it was at Dows & Cary’s risk, and subject to a lien for freight. (2.) The 500 barrels in Hobby’s store were not inspected, formed part of a larger lot from which they were not separated, and were not so delivered, as to pass the title to Cowing & Co. or Stanton. (3.) The portion tobe delivered from Dows & Cary’s store was uninspected, was not set apart, and the title had not passed to Cowing & Co., and Dows & Cary had a lien for the price.
    VIII. The defendant had a right, before accepting or agreeing to accept, to have an opportunity to examine the flour; and his objections on this ground, and also because the flour was in the boat and in the loft, were well founded, and were not obviated. {Avery v. Stewart, 2 Conn. K. 69 ; Barnes v. Graham, 4 Cowen 452; Lorimer v. Smith, 1 B. & C. 1; Isherwood v. Whitmore, 11 M. & W. 347.)
    The same matters urged against the July tender, are also applicable to the August tender.
   By the Court.

Vanderpoel, J.

The actions are brought on two executory contracts, the one dated on the 11th, and the other on the 17th June, 1847, each for the purchase by the defendant, of fifteen hundred barrels of flour, at the rate of $8 37⅛ per barrel, deliverable at the option of the sell,or, at any time, (half each month.) during the months of July and August. The actions are brought for the non-acceptance of the flour, when offered to the defendant.

By these memorandums of the defendant, a good executory contract was made by him to purchase flour at a specified price, payable on delivery, and we regard it as immaterial whether the plaintiff had an article of the kind on hand at the time of the contract, or was to procure it afterwards. Many moralists doubt the policy of permitting a party to contract for the sale of goods which he does not own at the time of making the contract, because it partakes of the nature of a gambling transaction ; but it is now well established, that a contract for the sale of goods to be delivered at a future day, is not invalidated by the circumstance, that at the time of the contract, the vendor neither has the goods in his possession, nor has entered into any contract to buy them, nor has any reasonable expectation of becoming possessed of them by the time appointed for delivering them, otherwise than by purchasing them after making the contract. (Hebblewhite v. McMorine, 5 Mees. & Wels. 462.) Alderson, Baron, there says, that if it were necessary that the vendor should own the property at the time of the contract, it would put an end to half the contracts made in the course of trade. In that case, the nisi prius decision of Ch. J. Abbott, in Bryan v. Lewis, (1 Ryan & Moody 382,) was overruled. And see Mortimer v. McCallan, 6 M. & W. 58. The legislature has seen fit to interfere and regulate stock jobbing, by providing that all contracts for the sale of shares of stock shall be void, unless the party contracting to sell or transfer the same, at the time of making such contract, shall be in the actual possession of the certificate or other evidence of such shares, or be otherwise entitled, in his own right, or be duly authorized by some person so entitled, to sell or transfer the certificate or other evidence of shares so contracted for. (1 R. S. 710, § 6.) This act is peculiar, and applies only to stock jobbing operations. The lawmaking power has not yet seen fit, by similar provisions, to regulate or embarrass ordinary commercial contracts. In the absence of any legislative prohibition, I concur with Maule, Baron, in Hebblewhite v. McMorine, that the doctrine laid down in Bryan v. Lewis is against all law, and against all commercial convenience. The contracts were, therefore, valid executory contracts, which the defendant was bound to fulfil, if the plaintiff performed all that devolved upon him by way of condition precedent. As the case stands, was the defendant excused from accepting the flour %

It is alleged that no sufficient delivery or tender was made of that flour. First. As to the fifteen hundred barrels to be delivered in July. It must be borne in mind, that the action is not for goods sold and delivered, nor for goods bargained and sold, where the full price is sought to be recovered; but on the special contract, for not taking and paying for the flour. From the evidence of Cowing, it appears that while the plaintiff evinced an entire willingness to deliver, the defendant showed a decided unwillingness to receive. Ilis studious attempt not to commit himself, his want of frankness in not specifying objections to bis receiving the flour, all showed a design, if possible, to get rid of his contracts. After the plaintiff tendered the flour on piers Mo. 4, 5, and 6, the defendant barely remarked, that “he did not think it such flour as the contract called for,” or something to that effect. No objection was made by him as to the character of the tender or oiler to deliver. He saw fit to repose upon a single objection ; that is, the quality or kind of the article. If not satisfied with the place at which, or the manner in winch, the delivery was made, or offered to be made, he ought to have stated his objection to these particulars. He omitted to do so, but took another objection, which turns out not to have been well taken. This objection, however, to the quality or kind was applied only to the flour at pier No. 6, on board of the ba$ge “Iowa.” As to the first two lots, he did not object that the description of the flour was not according to the contract; but remarked, “ Oh, where is the rest of it ?” All this time he was perfectly silent as to the insufficiency of the delivery.

Considering the ponderous character of the article, we think here was a sufficient delivery or offer to deliver. At all events, enough to impose upon the defendant the obligation of saying where he wanted to have it delivered. But the character of the tender or delivery did not then seem to trouble him. Ho merely felt, or affected to feel, some concern about the quality or kind of the flour ; but even, his objections in this respect, he would not condescend to particularize. It was not incumbent on the plaintiff, especially when the defendant was so taciturn and mysterious, to roll out every barrel on the dock, or cart it to the defendant’s store or place of business. His whole conduct showed an unwillingness to receive and pay the contract price, and neither is the law, nor the custom of dealers in the article, so unreasonable as to require that the plaintiff should have gone through, the expensive ceremony, unasked by the defendant, of rolling out the flour on the dock, or carrying it to his store. Where goods are ponderous or bulky, or cannot conveniently be delivered manually, the law does not require an actual delivery thereof, but only that they should be put under the absolute power of the vendor, or that his authority as owner should be formally acknowledged; or that some act should he done, typical of a surrender of them on the one side, and of an acceptance of them on the other. (Story on Sales, § 301.) Thus, the delivery of the key of the warehouse containing the goods sold, or the bill of lading of goods at sea; or of the receipt, ticket, sale note, dock warrant certificate, bill of parcels, or other usual type and evidence of title to goods, will, in most cases, be a sufficient constructive delivery of them to pass the title. (Chaplin v. Rogers, 1 East 3 R. 192; Wilkes v. Ferris, 5 John. 335; Story on Sales, § 311.) The law only recpiires such a delivery as is consistent with the nature and situation of the thing sold. When the articles are ponderous and bulky, a different rule prevails from what would be applicable to articles easily capable of manual transfer. In Jewett v. Warren, 12 Mass. 300, the vendor, on the sale of certain logs lying within a basin, took the vendee in sight of them, and showed them to him; it was held to be a sufficient delivery, on the ground that no other delivery was practicable under the circumstances, and that this act was intended as a delivery of the logs.

We have thus far considered the case independently of any usage proved, or attempted to be proved, in reference to this article. We think, considering the ponderous nature of the article, that the defendant only urged the inferiority of the flour to the contract standard, and that he showed anything but a willingness to receive it; the tender of the fifteen hundred barrels deliverable in July was sufficient for the purposes of this action. The plaintiff, in law, and according to good morals, did enough to place the defendant in the wrong. The plaintiff showed a desire to fulfil, the defendant the opposite sentiment. The frankness and apparent anxiety of the plaintiff to deliver to the defendant the property according to the contract, were met by a most significant spirit of non-committalism, a spirit showing a design not to fulfil his contract, but by skilful manoeuvre to escape, if possible, its unpalatable consequences. The law is not so unreasonable as to require from the vendor more than the plaintiff here did or offered to do, nor is it so blind as not to see that more pains and ceremony on bis part would not have changed the manifest predetermination of the defendant, not to accept of the flour. The delivery was in our view sufficient, without reference to the question of usage.

.But the usage testified to, surely fortifies the plaintiff’s case. In Pleasants v. Pendleton, 4 Rand. 474, it was held that an established usage constitutes the common understanding of parties, and ought to be resorted to as the interpretation of the contract; and that an usage that flour in a store is sold by order, and passes by the transfer of the order from hand to hand, without actual delivery of the flour, is a reasonable usage, and ought to be enforced as part of the contract. There, too, the court received and sanctioned evidence as to cooperage, as to where and at whose expense it was done. Cabell, Justice, says that the usage of trade there proved, for flour in store to be sold by mere draft or order on the warehouse-man, and to pass through many hands before it is called for, is entitled to great consideration ; that the usages of trade are presumed to enter into the contemplation of the parties to a contract, and that they are supposed to contract on their basis. See also as to usage, Bourne and others v. Gatliffe, 7 Man. & Grang. 851. According to the usage as testified to by Cowing, Dows & Wolfe, the plaintiff placed himself in a right position. According to this testimony, particularly that of Cowing, it is the usage hi the sale and transfer of flour in large quantities, for the seller to deliver to the buyer his orders, or the orders of some other person, on the barge or store where it may be. The buyer receives these orders, and then usually goes and looks at the flour. If it agree with the purchase, lie takes it, and if not, lie reports to the seller. If the flour is in barges, the practice is to cooper it at the time it is delivered to the cart. The usage proved, as to coopering, inspecting, and separating a smaller from a larger lot, favors and fortifies the plaintiff’s case.

As to the fifteen, hundred barrels, deliverable in August, the plaintiff’s case is, if possible, stronger than the one proved in respect to the July delivery. As to the August delivery, the defendant said he did not think the plaintiff had complied in delivering-, according to contract; that he did not think he was bound to take flour in the hold of a vessel, or in the fourth story of a building. Plaintiff said he would turn the flour out on the walk, or cart it to his door, or to any other part of the city he would name, provided he wmld say he would take it. Defendant remarked, plaintiff “ could do as he pleased.” He did not tell him where to cart it to, nor whether he would take it. It seems to have been impossible to satisfy the defendant. We think the plaintiff is entitled to recover in each suit the difference between the contract price and the market price at the time of the offer, with interest.

Judgment for the plaintiff.  