
    WILLIAM MOSES, Plaintiff and Respondent, v. GEORGE W. BANKER and Others, Defendants and Appellants.
    
      [Decided April 2, 1870.]
    A vendor of goods cannot recover either the contract price nor on a “ quantum meruit ” for a part of the goods delivered under the contract, although the same are accepted by the vendee. He must perform his contract fully before he can recover, and performance must not only be averred in the complaint but proved. The leading cases in support of this rule briefly reviewed.
    Before Monell, Freedman, and Spencer, JJ.
    The case was tried before Mr. Justice Jones and a jury.
    The complaint in this action claimed to recover the price of fifteen barrels of oil, containing 609-|~ gallons, at the price of $1.85 per gallon, alleged to have been sold and delivered by plaintiff to defendants.
    The defense in the action was based upon the fact of the nondelivery of the oil or any portion of the same.
    The contract of sale introduced in evidence in the ease was as follows:
    “ Rew York, July 20, 1866.
    “I have sold Messrs. Banker & Carpenter, for account of William Moses, fifteen (15) barrels of prime winter lard oil, in prime order, to be equal in all respects to sample showed Mr. Woodbury on ’Change to-day. Terms $1.85 per gall., cash on delivery.
    “ Geo. Leonard.”
    The main question in the case on the trial was the delivery of the oil, in relation to which there was some conflicting evidence.
    The third proposition charged by the court to the jury was to the effect that if only a part of the fifteen barrels of oil was delivered the plaintiff would be entitled to recover for that portion, although there was no delivery as to the balance, and to this portion of the charge an exception was taken by the defendants’ counsel.
    The jury found a verdict for the plaintiff for the value of six barrels of oil, computed at the sum of $541.79, including interest, they arriving at the conclusion that six barrels had been delivered under the contract.
    
      Mr. Hamilton Odell for appellants.
    The agreement was void by the statute of frauds. Bo note or memorandum thereof was subscribed by or on behalf of the defendants, nor was there any “ acceptance ” of the oil by them (Shindler v. Houston, 1 Comst., 261).
    The law is settled in this State, that where a contract for the sale of property is' entire, and payment is to be made upon delivery, full performance by the vendor is a condition precedent to his right of action against the vendee (Champlin v. Rowley, 13 Wend., 25; S. C. in Error, 18 Wend., 187; Mead v. Degolyer, 16 Wend., 632; Paige v. Ott, 5 Denio, 406 ; McKnight v. Dunlop, 4 Barb., 36; Solomon v. Neidig, 1 Daly, 200; Baker v. Higgins, 21 N. Y., 398; Catlin v. Tobias, 26 N. Y., 217; Reimers v. Ridner, 2 Robt., 11).
    In Mead v. Degolyer a certain quantity of timber was sold, and only a part was delivered, for the value of which the suit was brought. Judge Bronson says: “The mere statement of the case furnishes a complete answer to the action.' The delivery of the timber was a condition precedent to the payment of the price— and the plaintiff must first perform on his part before he has any ground of complaint against the defendant. This court has never held any other doctrine.”
    In Baker v. Higgins the agreement was for 75,000 brick. Only one "cargo—of 21,000—was delivered. The court say: “The plaintiff was not entitled to pay for any part until the whole was delivered, etc.”
    The vendor does not comply with his contract by the tender or delivery of either more or less than the exact quantity contracted for (Benjamin on Sales, 510; 2 Kent, 509, marg.).
    So in cases of contracts for personal service. Full performance is a condition precedent to any right of action (McMillan v. Vanderlip, 13 Johns., 53; Jennings v. Camp, id., 94; Webber v. Duckingfield, id., 290; Reab v. Moore, 19 Johns., 341; Lantry v. Parks, 8 Cow., 63; Marsh v. Rulesson, 1 Wend., 514; Sickels v. Patterson, 14 Wend., 257; Bonesteel v. Mayor, etc., 22 N. Y., 162; Walker v. Millard, 29 N. Y., 375).
    So in cases of building contracts where the specifications are not complied with by the contractor (Pullman v. Corning, 9 N. Y., 93; Smith v. Brady, 17 N. Y., 173; Pike v. Butler, 4 N. Y., 360; Cunningham v. Jones, 20 N. Y., 486).
    Even where, before completion, the work is destroyed by fire (Tompkins v. Dudley, 25 N. Y., 272; Niblo v. Binsse, 45 Barb., 54).
    
      Mr. W. W. Niles for respondent.
    The jury have found upon the facts, upon evidence all with the respondent, or at worst, upon conflicting evidence, and their verdict will not be disturbed, unless there was error on the part of the judge.
    The question whether plaintiff had proved a delivery was for the jury. We say the evidence was conclusive; but, at least, there was some evidence tending to establish a delivery.
    Even if good at the time, the defect was cured by the subsequent evidence and verdict.
    The evidence that Leonard was a broker, and was acting, and was understood to be acting as such, is positive and uncontradicted. The charge throughout was good law, but was certainly very favorable to the defendants. This is not the case of a seller withholding part, or failing to deliver part of one purchase, but the act of the law; and we say the whole was delivered when carted, to defendants’ store, if done by “ the direction of the defendants.”
    
      It is not a part of delvoery to put the goods up the hatchway into the loft, but a mere courtesy, and the judge should have so charged, in our favor.
    • But taking the case as it is: Supposing the goods had been many loads, and the first load had arrived “ by the direction of the defendants,” and “ by their directions ” been put into the third loft of their store, and had there been stolen or burned, or seized by a sheriff, would it be at the loss of the seller %
    
    There is no suspension of the delivery to allow time to inspect, unless a party expressly at the time claims it. But if a purchaser, within a reasonable time, examines and finds the goods not according to contract, and notifies the seller, and tenders back the goods, and proves these things affirmatively, he will be relieved from his covenant to pay; otherwise he may be compelled to pay for goods not according to sample (Ely v. O’Leary, 2 E. D. Smith, 356; Hargous v. Stone, 1 Seld., 86).
    The broker is the agent of both parties, and signs for both, and one memorandum of the contract—sufficient within the statute of frauds—is enough, though not delivered to either party (Dunlap’s Payley’s Agency, pages 313 to 317, and 331, note; Pitts v. Becketts, 13 Meas & Wils., 743 to 757; Merrit v. Classon, 12; Johns. R., 102).
   By the Court:

Spencer, J.

I hold that theré was error in the charge, and the verdict.

This contract' was for fifteen barrels of oil—no more, no less— and until that amount was delivered under the contract plaintiff could recover no part of the contract price. This contract was an entirety and was not divisible.

Mr. Justice Monell, in reviewing the case of Flanagan v. Demarest (3 Robertson, 183), states very clearly and forcibly the rule of law applicable in this case: “ It is well settled in this State that a vendor of goods cannot recover either the contract price nor on a ‘ qua/ntum meruit ’ for a part of the goods delivered, even although accepted by the vendee. The reason of the rule is that full performance of such contracts by the vendor is a condition precedent, and must be averred and proved.”

This principle of law was announced as applicable to contracts for personal services in the Supreme Court of this State, in the case of McMillan v. Vanderlip (12 Johnson, 165), wherein Chief-Justice Spencer reviewed, and criticised, and corrected the decisions of the English courts, which were then favoring recoveries on a quantum meruit, where the contract had not been fully fulfilled. The judge says of the rule adopted in these English cases: The rule contended for holds out temptations to men to violate their contracts.”

In the case of Champlin v. Rowley (13 Wend., 260), Judge Nelson applies the rule enunciated in McMillan v. Yanderlip to contracts for the sale and delivery of property, and says in relation to the case before him: “ The plaintiff assumed to deliver the whole quantity of hay, previous to the last run of the sloops, and he must abide the consequences of his default. We know that it was possible to have performed the contract on his part. The case falls within principles familiar in this court which inculcate the observance of good faith in the fulfilment of contracts,” and he also notices the English cases with disapproval. The principles in these cases were, affirmed in the Court of Errors (18 Wend., 187), and they have been followed and sustained by the courts of this State to the present time.

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