
    Paul R. G. Horst, Appellant, v. Montauk Brewing Company, Respondent.
    First Department,
    March 22, 1907.
    Sale — delivery of goods to railroad to order of vendee.
    In an action' by a seller for damages by reason of the failure of the buyer to accept and pay for goods, it appeared that the contract called for the sale and delivery of twenty-four bales of hops; that after the.delivery of sixteen bales by the seller the buyer did not reply to the seller’s demand that the delivery'of the balance be accepted. The seller stored the balance of, the hops, branded and tagged with the name of the buyer, with a warehouseman and with a railroad company, sending the invoices to the buyer, who retained the same without objection but failed to remove the hops. The seller sent the huyera second copy of the invoices. The buyer replied claiming the right to take the hops at his convenience, and the seller being notified by the railroad to remove the hops-' stored them in a warehouse for the buyer’s account and sent him the warehouse receipts, which were also retained.
    By the custom of trade, where no time is specified for-delivery of hops, it must - be made before new crops come in.
    Held, that the complaint was improperly dismissed;
    That in an action for goods sold and delivered the seller may, upon tender of performance and demand of payment and refusal, treat the property as belonging to the buyer and sue for the recovery of the agreed price;
    
      That an actual physical delivery of the goods is not necessary, and where manual delivery of the goods is inconvenient on account of bulk, placing them in the power of the buyer with a symbolic delivery by forwarding the warehouse receipts, is sufficient.
    Hoxjghton, J., dissented.
    Appeal by the plaintiff, Paul R. G-. Horst, 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 19th day of October, 1906, upon the dismissal of the complaint by direction of the court at the close of. the plaintiff’s case upon- a trial at the New York Trial Term.
    
      George A. Strong, for the appellant.
    
      Martin S. Lynch, for the respondent.
   McLaughlin, J.:

On the 1st of March, 1905, the defendant purchased from the plaintiff forty bales of hops, as evidenced by a written instrument, of which the following is a copy:

“Brooklyn, H. Y., March 1st, 1905.
“Bought to-day off Mr. Paul Horst (20) twenty bales choice Oregons at 29 cts., (20) twenty bales choice Hew York State hops at 30 cts. per lb., deliverable in 10 or 15 bale lots, as per written order of Montauk Brewing Company, payable in ten days after delivery. Samples to be submitted must be satisfactory.
“MOHTAUK BREWIHG- COMPAHY.
“By C. D. Rhinehart.
Charles Albresch.”

In May following sixteen bales of the Hew York State hops were delivered and paid for. This action was brought to recover the purchase juice of the other twenty-four bales, the complaint alleging delivery and defendant’s failure to pay. The answer admitted the agreement and delivery of the sixteen bales which were paid for, but alleged that the plaintiff failed and refused to submit samples of the Oregon hops, and denied that any of the hops called for by the agreement were delivered except the sixteen bales.

At the trial the complaint was dismissed at the close of plaintiff’s case and he appeals. The question presented turns upon whether the plaintiff had in fact, prior to the commencement of the action, delivered to the defendant the hops, or had so far performed in that . respect upon his part as to entitle him to recover the purchase price. The facts relied upon by the appellant, as entitling him to maintain the action, are as follows: After the delivery of the sixteen bales in May the defendant did not call for the remaining twenty-four bales, and on the twenty-first of August following the plaintiff' wrote the defendant asking when it would be convenient for it to receive the balance — saying that he did not wish to hurry defendant, but, nevertheless, would like to make delivery in the near future. The letter was not answered, nor was any attention paid to it. Albresch, the broker who represented the plaintiff in the transaction) also made repeated efforts to have defendant order the balance of the hops delivered. His efforts, however, were unsuccessful, and on the sixth of Hovember the plaintiff stored with one Loewi, 35 Pearl street,-Hew York city, four bales of Hew York State hops, and with the Southern Pacific Railway Company, pier 37, Horth river, Hew York city, twenty bales of Oregon hops, all of which he had branded or tagged with the name of the defendant. On the same .day he sent delivery orders, weigher’s returns and invoices for these twenty-four bales to the defendant. Defendant retained these documents without objection, but did not remove the hops, and on the seventeenth of Hovember plaintiff again wrote defendant, by registered letter, to the effect that he had on the sixth of the same month sent invoices and delivery orders, but, not hearing from defendant in the meantime, feared the orders might have been misplaced, and, therefore, inclosed duplicates of the same. To this letter the defendant replied on the following day, saying it inclosed a copy of the contract, and according to its understanding of the same, defendant was at liberty to take the hops at its convenience. It made no other objection to the delivery as made, nor did it return or offer to return the delivery orders, either - duplicates or originals, but retained them and produced all of them at the trial. On the nineteenth of December following plaintiff wrote defendant that he had been notified by the railroad company and Loewi to immediately remove the hops stored with them respectively; that he had done so, and stored the same in a warehouse for defendant’s account and risk, and inclosed the warehouse receipt therefor, at the same time asking for a remittance on or before a time specified. The warehouse receipt was also retained by the defendant and produced at the trial.

It also appeared, without objection, that where hops are sold and no time specified for delivery, according to the custom of the trade, delivery must be made before new crops come in, which is in September or October of each year.

Upon these facts I am of opinion that the complaint- was improperly dismissed. The rule now seems to be well settled that in an action for goods sold and delivered the seller may, upon tender of performance on his part and demand of payment and refusal of the purchaser to perform, treat the property as belonging to the defendant and sue for a recovery of the price agreed to be paid (Mason v. Decker, 72 N. Y. 596); that he is entitled to recover the price when he shows not only that the purchaser failed to pay, but that he himself was ready to perform and has delivered or offered to deliver the goods (Dunham v. Mann, 8 N. Y. 513); that the omission to prove an actual physical delivery does not prevent a recovery (Butler Brothers v. Hirzel, 87 App. Div. 462; affd., 181 N. Y. 520); that where manual delivery of goods is inconvenient on account of their bulk it is unnecessary; placing the goods in the power of the vendee is sufficient; an actual delivery is not required; a symbolic delivery suffices, and delivery of an order on the warehouseman may be enough. (Salmon v. Brandmeier, 104 App. Div. 69.) It was unnecessary for the plaintiff to take the hops to. the door of the defendant’s brewery. It had refused, though requested to do so, to order the hops delivered either there or anywhere else. Under such circumstances the plaintiff had a right to make the delivery as he did, inclosing documents which evidenced that the defendant not only had the title but could go and get the hops whenever it saw fit. It is true the plaintiff, after the delivery orders had been sent to and retained by the defendant, put the hops in a warehouse, but he was under no obligation to do this. He might have left them where they were and let the defendant stand the consequences. However, what was done in this respect was for defendant’s benefit. It was at once informed of what was done, and the- warehouse receipts were sent to it, which were retained without objection.

In Butler Brothers v. Hirzel (supra) the plaintiff brought an action for the purchase price of goods alleged to have been sold and delivered. On the trial it appeared that the plaintiff had taken the goods to the place of delivery and defendants had refused to accept them, so that they were never actually out of the possession of the plaintiff. The complaint was dismissed, substantially on the ground that the cause of action therein .set forth was not'proved, but this court held there was sufficient proof to entitle the plaintiff to maintain the action for the price agreed to be paid, and the judgment was reversed and a new trial ordered. In the case now under consideration the proof of the delivery of the hops is much more favorable to the plaintiff than in that case.

If the foregoing- views be correct, then it necessarily follows that the court erred in dismissing the complaint.

' Other questions are presented by the appellant as to the-exclusion of- evidence,' which, except for the conclusion reached, would require serious consideration.

The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.

Ingraham and Clarke, JJ., concurred; Patterson, P. J., concurred in result; Houghton, J., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide-event. Order filed.  