
    The Baltimore and Ohio Railroad Company, Appellant, v. Benjamin Lowenstein, Doing Business under the Registered Trade Name of Tottenville Copper Company, Respondent.
    First Department,
    January 21, 1916.
    Sale—Personal Property Law as to delivery of goods by installments — foreign contracts — provision that seller may deliver at his convenience within specified number of days—when tender of partial delivery does not constitute breach.
    Section 126 of the Personal Property Law of this State, providing that a buyer of goods is not bound to accept delivery by installments unless otherwise agreed, has no application to a contract of sale made and to be performed without the State. It will be presumed by our courts that the common law is applicable to such sale in the absence of proof to the contrary.
    Where a written contract for the sale of a specified number of pounds of scrap metal which was stored by the seller in warehouses in various localities provided that delivery was to be F. O. B. at the place where the goods were located “at our convenience within 30 days from date,’ under the common law the seller, by tendering a shipment of less than the total number of pounds before the expiration of the thirty days, was not guilty of a breach which entitled the buyer to rescind, for under the contract the seller had the balance of the thirty days within which to make full delivery.
    Appeal by the plaintiff, The Baltimore and Ohio Railroad Company, from a determination and order of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of May, 1915, affirming a judgment of the City Court of the City of New York dismissing the complaint, with costs, on motion of the defendant made at the opening of the trial for judgment on the pleadings.
    
      Marvin W. Wynne, for the appellant.
    
      Samuel Fleischman, for the respondent.
   Page, J.:

The complaint alleges that on June 9, 1913, the defendant offered in writing to purchase of the plaintiff all or any part of 100,000 pounds of scrap then for sale by the plaintiff, upon cerain terms and conditions at thirteen and one-quarter cents per pound; that on June 11, 1913, the plaintiff accepted the said offer to the extent of 75,000 pounds and issued .to the defendant a certificate of purchase as follows: “This certifies that Tottenville Copper Co., Tottenville, N. Y. has purchased the following scrap: 75,000# Brass borings and turnings clear $13.25 per cwt. Delivery, F.O.B,; B&O RR Tracks at Where located. * * * Shipment: At our convenience within 30 days from date.” The certificate specified other terms immaterial to this controversy, which are, therefore, omitted. It was dated “Baltimore, Md. 6/11, 1913.”

The complaint further alleges that the plaintiff duly performed all the conditions of said contract on its part to be performed, and on or about the 16th day of June, 1913, notified the defendant that it was ready and willing to deliver to the defendant 70,050 pounds of said scrap at the city of Baltimore pursuant to the terms of said contract, but that prior to the expiration of the time appointed for the delivery of said scrap the defendant notified the plaintiff that he would not accept the same and would not carry out the terms of said agreement. It also alleges that plaintiff was ready, willing and able to deliver said scrap to the defendant but for the defendant’s said refusal.

The complaint then alleges that upon said refusal the plaintiff duly notified the defendant that it would sell the said scrap for his account, and did sell it in the open market for twelve cents per pound, which was the full market value thereof at the said time and place. Damage of $875 is thus shown and demanded.

The contention of the defendant, respondent, is that under the Personal Property Law (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], § 126, subd. 1, as added by Laws of 1911, chap. 571), providing that “unless otherwise agreed, the buyer of goods is hot bound to acccept delivery thereof by installments,” the plaintiff’s offer of delivery of only 70,050 pounds was not in accordance with the contract to sell 75,000 pounds, and the defendant committed no breach of the contract in refusing to accept that quantity.

The contract was made and to be performed outside the State of New York, and is, therefore, not governed by the statute relied upon, but by the law of the place where the agreement was made (Valk v. Erie R. R. Co., 130 App. Div. 446), which will be presumed to correspond with the common law of this State, in the absence of proof to the contrary. Under our common law the provision of the contract that plaintiff was to make delivery “ At our convenience within 30 days from date,” might well be construed to comprehend a delivery in installments, if such delivery happened to be more convenient for the plaintiff. (Canda v. Wick, 100 N. Y. 127.) The words “at our convenience” must, under the circumstances shown by the exhibits by which the contract was evidenced, be construed to mean either in such quantities as might be most convenient for the shipper, or at such time as would best suit its convenience. As the following words, “within 30 days from date,” clearly fixed the period within which delivery could be made, effect can only be given to the words “at our convenience” by adopting the former construction, namely, in quantities suitable to the shipper’s convenience. This construction is also aided by the fact that the circular offering the scrap for sale showed that it was distributed at various shops of the plaintiff at Baltimore, Cumberland, Md., Cleveland, O., and four or five other places, and the place of delivery named in the contract was “B&O BB Tracks at Where located,” thus giving plaintiff the option to deliver on its tracks at the various places at which the scrap happened to be situated. Under these circumstances a tender of 70,050 pounds of scrap before the termination of the time for delivery was within the terms of the agreement, and refusal of the defendant to accept it and its repudiation of the contract constituted an anticipatory breach of the contract, excusing further tender on the part of plaintiff and giving rise to a cause of action for the breach. (Wester v. Casein Co. of America, 206 N. Y. 506, and cases cited.)

The determination of the Appellate Term and the judgment of the City Court should be reversed and a new trial ordered, with costs to the appellant in all courts to abide the event.

Olarke, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Determination of Appellate Term and judgment of City Court reversed and new trial ordered, with costs to appellant to abide event.  