
    James B. Guild, Resp't, v. John N. Huwer, App'lt.
    
      (City Court of Brooklyn,
    
    
      General Term,
    
    
      Filed December 27, 1892.)
    
    Sale—Deposit—Recovery of on failure to deliver.
    Plaintiff deposited a certain sum with defendant as payment in advance for goods to be manufactured for him, defendant also agreeing to retain possession thereof at his own risk till they were actually delivered on plaintiff’s orders. A portion of the goods were so delivered, when defendant’s factory was burned down. Held, that, under the circumstances, nothing short of an actual manual delivery on plaintiff's orders could be deemed a delivery, and that defendant was liable for the balance of the deposit.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    On or about June 1, 1891, the respondent, James B. Guild, desiring to purchase goods of defendant, and as a security for the performance of his agreement with defendant, deposited with defendant six hundred and forty-two ($642) dollars, the value of goods so to be purchased by him, in consideration of which defendant agreed to furnish and deliver to the respondent glassware of a certain quality, in such quantities and at such times as he should require and order the same, of the said value of $642.
    Between said 1st day of June, 1891, and the 20th day of November, 1891, defendant filled respondent’s orders and delivered goods pursuant to his orders and to said agreement of the value of $117.36 only.
    Between November 17 and November 24, 1891, inclusive, the respondent gave defendant further orders on account of said deposit of the value of $26.21, which last orders defendant failed and refused to fill, and said last named orders have never been filled.
    On or about November 26, 1891, defendant’s factory was burned, and on or about the 29th day of December, 1891, defendant paid to respondent the sum of two hundred and four dollars ($204), and refused to pay the balance still remaining, viz., $320.-64, or to furnish goods of that value to respondent.
    The respondent then brought his action for said sum of $320.-64, and on a trial before this court and a jury, on May 9, 1892, recovered judgment therefor with interest and costs.
    
      Brunnemer & Bennett, for resp’t;
    
      Edwin R. Root, for appl’t
   Yah Wyck, J.

According to the pleadings and the charge of the trial judge the right of plaintiff to recover was defeated if the goods contracted to be purchased from the defendant were, in law, delivered upon the complete manufacture thereof, though remaining in defendant’s factory. The testimony tends to show, and the jury thereupon finds, that the plaintiff agreed to purchase, at fixed prices, certain goods from the defendant, to be manufactured, the defendant agreeing to retain possession thereof at his own risk till they were actually delivered upon plaintiff’s orders. We see no reason to disturb this finding of the jury that the goods were not delivered. The testimony that the goods were to be retained by defendant at his own risk till they were actually delivered upon plaintiff's orders was clearly admissible, under the pleadings, to show that it was the intention of the parties that nothing short of actual manual delivery, on plaintiff’s orders, should be deemed a delivery.

Judgment and order must be affirmed, with costs.

Clement, Ch. J., concurs.  