
    Frank W. Stanley, Appellant, v. Daniel S. Dryer, Respondent.
    (Supreme Court, Appellate Term,
    February, 1911.)
    Sales — Payment and tender — Time of payment — On delivery.
    The language of an agreement in writing to pay commissions to an agent for effecting a sale of wagons to a municipality, payable as soon as the wagons are delivered, imports an acceptance on the part of the buyer; and the admission of evidence of a conversation at the time of the making of the agreement to the effect that the agent would not get his commissions unless the wagons were accepted will not vitiate a judgment "for the defendant in an action brought by the agent to recover commissions on the sale, where it appeared that the wagons had not been accepted.
    Delaney, J., dissents.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant.
    Wilber, Rorman & Kahn, for appellant.
    August Dreyer, for respondent.
   Lehman, J.

The plaintiff acted as agent for the defendant in submitting a bid upon a contnact to be awarded by the police department. The defendant signed a written ■agreement to pay plaintiff five per cent, if his bid was accepted. This agreement contains the words: “.Payment to be made as soon as carriages aré delivered.” The bid was accepted and the defendant subsequently offered some carriages to the police department, or, according to the witnesses, “ delivered ” them; but the department refused to accept the carriages. It does not appear whether the refusal' was justified or not. Parol evidence was admitted over plaintiff’s objection to show that before defendant signed the contract he "insisted upon the insertion of the words quoted above, and that plaintiff said “ he would not get his commission unless the wagons were accepted.”

The trial justice rendered judgment for the defendant; and the plaintiff claims that this judgment should be reversed on the ground that the parol evidence was introduced to vary the written instrument. If the word “ delivery ” in its context hears the unequivocal meaning of an attempt or offer to transfer possession, then the admission of this evidence was erroneous; if, however, its meaning is ambiguous, or if it unequivocally denotes a completed transfer of dominion, then the parol eyidence did not vary the written agreement. There is high authority for regarding the word “ delivery,” used in connection with a sale of chattels, as ambiguous. “ There is no branch, of the law of sale more confusing to the student than that of delivery. This results from the fact that the word is unfortunately used in very different senses; and, unless these different significations are carefully borne in mind, the decisions would furnish no clue to a clear perception of principles. First, the word 1 delivery ’ is sometimes used with reference to the passing of the property in the chattel; sometimes to the change of the possession of the chattel; in a word," it is used in turn to denote transfer of title or transfer of possession.” Benj. Sales, §§ 674, 675. See also 1 Bouvier Law Diet. (6th ed.) 536; 2 Words & Phrases, 1960.

Other authorities of equal dignity have questioned the accuracy of Hr. Benjamin’s statement. “ It would perhaps be more correct to say that a delivery which is effectual for one purpose is ineffectual for other purposes.” Lióte to Sale of Goods Act, 1893, drafted and annotated by Mr. Justice 'Chalmers (7th ed.) 139. That act itself defines delivery as the “ voluntary transfer of. possession from one person to another.” Even if we adopt this definition, the appellant’s position is not strengthened. A transfer of possession does not mean an offer to transfer and a refusal to accept. It means an actual transfer of dominion. In all cases the essence of delivery is that the deliveror by some apt and manifest acts puts the deliveree in the same position of control over the thing, either directly or through a custodian, which he himself held immediately before that.” Pollock, Possession, 46. a Both actual and constructive delivery contemplate the absolute giving up of the control and custody of the goods on the part of the seller and the assumption of the same by the buyer.” 35 Cyc. 189.

I have searched the oases unsuccessfully for a case where it was held that a mere attempt to transfer constituted a “ delivery ” without any further acts. Even the difference in the measure of damages between actions for breach of contract and actions for goods sold and delivered is based upon the essential facts that, in the theory of the law, title in the one case is in the vendor and in the other case in the vendee. In every case the words used in a contract should be interpreted with reference to their context. Where the word delivered ” is used in a contract for the sale of goods without any qualification by other words, it seems to me that it means not merely an offer to transfer, or even a parting with possession as by a transfer of custody, but an actual completed transfer of control over the goods; a transfer sufficient to enable the vendor to sue for goods sold and delivered, instead of for goods bargained and sold, or for breach of the special contract to accept and pay. It means ■at least a divestment of control in favor of another, and a divestment of control is complete only when acquiesced in by the other party.

It, therefore, seems to me that, regardless of whether or not the parol evidence was properly admitted, the plaintiff cannot recover without showing either that there was an actual transfer of possession to the department or that the failure to make such a transfer was due to the defendant’s fault.

Judgment should be affirmed, with costs.

Hendbiok, J., concurs.

Delany, J. (dissenting).

I dissent. The written agreement between the parties provided that the plaintiff should receive his commission on delivery of the carriages which defendant contracted to furnish. The language is, “ payment to 'be made as soon as carriages are delivered.” All that was to have been done on the part of plaintiff had been performed — the only question was the time when he was to ■have been paid for his services. The testimony showed that they (the carriages) were delivered, but seemingly rejected because it was claimed they were not according to sample. The defendant was permitted over exception to explain that the meaning of the paper included the acceptance of the carriages as well as their delivery. This in "my judgment was error. In the abstract “ delivery ” may be an ambiguous term and, in certain instances, as in our modem substitute for the feudal livery of seizin — the giving of a deed to land — may mean the passing of the title as well as possession. But the term must not be considered here except with its context, and it here refers to the delivery of carriages — the placing into the possession of the buyer — as in goods sold and delivered.” Under this aspect the term is unambiguous and must be so accepted. Parol testimony should not have been admitted to give the word a more comprehensive meaning. Drew v. Swift, 46 N. Y. 204; Collenden v. Dinsmore, 55 id. 200; Mullen v. Ford, 28 Fed. Rep. 639; Leppert v. Sagamore Milling Co., 108 Wis. 512.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Judgment affirmed.  