
    Potter Printing Press Company, Appellant, v. Joseph J. Schreiner, Respondent, Impleaded with Others.
    
      Sale of .personal property — what constitutes a waiver of a condition, on performance of which the title is to pass.
    
    The question whether a vendor of personal property has waived a condition,, upon the performance of which the title was to vest in the vendee, -is usually a. question of fact depending on the intention of the parties and on all the circumstances attending the contract of sale and delivery.
    
      Evidence considered which is sufficient to raise a question of fact for the jury, as to whether the vendor of a press (sold under a contract by which the vendees were to pay a portion of the purchase price when the press was set up and put in satisfactory running order), at an interview • with the vendees a few days after the press was in working order, consented to allow it to remain in the vendees’ possession without insisting upon the stipulated payment, with intent to transfer the title to the press, or simply in order to enable the vendees to procure a partner with whose aid they would be able to carry out the contract.
    Appeal by the plaintiff, The Potter Printing Press Company, from a judgment of the Supreme Court in favor of the defendant Joseph J. Schreiner, entered in the office of the clerk of the county of Kings on the 1st day of May, 1899, upon a dismissal of the complaint by direction of the court after a trial before the court and a jury at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 31st day of May, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Hector M. Hitchings, for the appellant.
    
      George F. Roesch, [Joseph Steiner with him on the brief], for the respondent.
   Willard Bartlett, J.:

In this action the plaintiff corporation seeks to charge Joseph J. Schreiner, as a partner of the other defendants Herman C. Boedicker, Robert Rummel and Gustave Gutgemann, with liability for their refusal to carry out a contract for the purchase of a lithographic press. The other defendants did not interpose any defense, and two of them testified in behalf of the plaintiff upon the trial.

In their transactions with the plaintiff corporation the defendants (whether the defendant Schreiner was a participant or not) acted under the name of the Decorative Designer Company. The plaintiff corporation, agreed to sell to the Decorative Designer Company, and the Decorative Designer Company agreed to buy from the plaintiff corporation, a lithographic press for which the purchasers were to pay $500 cash when the press was set up and put in satisfactory running order, and $1,900 more six months later, the latter payment to be secured by a chattel mortgage on the press. The press, was put up, some work was done upon it, and in the middle of October, 1897, a conversation took place between Robert Rummel, ■one of tile defendants, and Horace W. Fish, the vice-president of the plaintiff corporation, in regard to the manner in which the press was working, and the fulfillment of the promise of the purchasers to pay therefor. No payment having been made, the.plaintiff corporation subsequently took possession of the press-and sold it at auction, after notice to the defendants of the time and place of sale. The present suit is brought to recover as damages the difference between the contract. price of the' press and the net juoceeds of the sale thereof at auction, which difference is alleged to amount to $1,270.40. The proof shows that the press was bought at the auction by Mr. Fish for the Potter Printing Press Company, so that it went back into the hands of the vendors after having been used a short time by the defendants, bringing with it the claim for damages which is asserted in this action.

At the conclusion of the evidence in behalf of the plaintiff the learned trial judge dismissed the complaint. The grounds of the dismissal are made very plain in the oral opinion which he delivered in granting the defendants’ motion. He held that the sale of the press was conditional upon the payment of so" much of the purchase money as was payable ora delivery; so that the title did not pass immediately upon* the delivery. “ If the parties refuse to pay a stipulated sum on delivery,” he said, “ then the seller may retake his property ; but if he extends the time to pay the money that is to be paid at the time of delivery for a definite period, as was done in this case, it ceases to be a conditional sale. When he agreed to wait two weeks I think the title vested absolutely in the vendee, and if the plaintiff no longer had a lien irpon it he had parted with possession and title, and had not a vendor’s lien which would justify a retaking of the property.” Such retaking was declared to be a rescission of the whole sale, the vendor having his property and the purchaser having nothing.

Again, in an opinion handed down on denying plaintiff’s motion for a new trial, the learned judge stated the theory upon which he had dismissed the complaint in these words: “ There was no express stipulation that title to the press should not pass until payment was made, and while delivery in the first instance did not pass the title until the cash payment was made or waived the title did pass when a definite credit for that payment was given. A retaking of the press after that, there being no lien for purchase money to justify, it, amounted to a rescission of the sale, and the plaintiff having taken the property cannot recover the price.”

This disposition of the case was unquestionably correct if the evidence in regard to the October interview between the defendant Rummel and the plaintiff’s representative, Fish, left no room for any inference, except the conclusion that the vendor had then waived that condition of the contract which required $500 to he paid when the press was in satisfactory running order, so that the title passed to the purchasers. The question whether a vendor has waived a condition upon the performance of which the title was to vest in the vendee, is usually a question of fact depending upon the intention of the parties and all the circumstances attending the contract of sale and delivery. (Adams v. Roscoe Lumber Co., 2 App. Div. 47; affd., 159 N. Y. 176.) Oases may occur, however, in which the uncontroverted proof is so clear as to warrant no other inference, except that of a waiver; and if such was the character of the evidence in this record, we should have no trouble in affirming the judgment on the ground upon which the learned trial judge placed the dismissal.

A careful scrutiny, however, of all the testimony relating to the conversation relied upon as establishing the waiver convinces us that this evidence is fairly capable of sustaining different inferences. Hr. Fish gives this account of his interview with Hr. Rummel: Q. State the conversation. A. I called there to see if it was running satisfactory; he said it was. I said, then, c You will probably he able to settle for the press soon ? ’ He said, Yes, I think we will, but we would like a week or two more, and call again.’ I called again. * * Q. Did you give him a week or two more ? A. Yes, sir. Q. Did he tell you anything about Hr. Schreiner at that time? A. No, sir; not at that time. * * * At that time I thought they would be willing to pay for it.” If this stood alone it would go very far toward sustaining the action of the trial court; but Hr. Rummel’s testimony tends to shew that Hr. Fish consented to leave the press there and wait for the payment, not with any intent to make a delivery thereof, irrespective of the promised payment, and thus transfer title, but simply in order to enable the purchasers to procure a partner, with whose aid they would be able to carry out the contract. Thus Mr. Hummel says : “ When Mr. Fish called on us to inquire why we had not "paid for the presses, it ivas in the 1st _ part of October or middle of October. A few days after the presses were in working order; it might be a week. I did not give any order to take the presses away, but only told him the circumstances, how we were fixed, and if we got a partner we should take possession. of the press, and lie thought he might make arrangments to leave it standing till they could take it right.” The statement by Mr. Hummel to Mr. Fish, that they would take possession of the' press if they got a partner, is opposed to thé idea that either of the parties to the conversation then supposed that the legal title to the press had been, or was being, transferred to the defendants.

On the authority of Adams v. Hoscoe Lumber Co. (supra), and the cases therein cited, I think there was a question of fact in respect to the alleged waiver which entitled the plaintiff to go to the jury; •and inasmuch as its counsel expressly asked to go to the jury upon the question of whether there ever ivas a delivery of the press to the. defendants, the denial of that request ivas error, for which the judgment must be reversed.

All concurred, except Hibsohbebg, J., taking no part.

Judgment and order reversed and new trial granted, costs to abide the event.  