
    Charles D. Williams, Respondent, v. Wilson & McNeal Company, Appellant.
    Second Department,
    March 2, 1906.
    Sale — when contract for sale of goods not entire —"finding that there was no “delivery.” construed.• „
    When the vendor has named the price of certain goods, and the vendee has ordered some of them, which were delivered hut not paid for, and the vendee subsequently orders other -goods, which the vendor refuses to deliver without payment, the contfact of sale is not entire, and the refusal of the vendor, to deliver the last orders does not prevent a recovery for the goods previously delivered.
    In the absence of a contract giving credit the. vendor may require payment on delivery. ■ "
    A finding by the court that certain goods were ordered t¡ut not “ delivered ” is not-equivalent to á finding that the vendor has "broken thd contract, as such finding may mean only that the vendor refused to turn over the goods, which he had a right to do.
    
      Appeal by the defendant, the Wilson & McNeal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on, the 4th day of April, 1905, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.
    
      Isaac N. Miller, for the appellant.
    
      William B. Hurd, Jr., for the respondent.
   Jenks, J.:

This action for goods sold and delivered was tried before the court, without a jury, which found for. the plaintiff. The plaintiff put prices upon various goods, and thereafter the defendant ordered some of them, which were furnished but not paid for. The defendant contended that certain goods thereafter ordered were not furbished, and the court found that they were not “ delivered,” although demanded.

The. points raised upon this appeal are that there was an entire contract, that nothing was to be paid until its complete performance, and. that the finding of the court necessarily led to a judgment upon the counterclaim for damages for the non-delivery. There is no evidence that establishes that there was any entire contract^ and the dealings between the parties do not indicate one. There is no proof that any credit was extended, or that there was any agreement that the payment for any goods furnished should be deferred until all goods which might be ordered from time to time were delivered. The general rule is that in the absence of agreement for credit or delay, delivery and payment aré each a condition of the other. (Tipton v. Feitner, 20 N. Y. 423; Benj. Sales [7th Am. ed.], § 677. See, too, Ming v. Corbin, 142 N. Y. 334, 340 et seq.) If the defendant had'proved that the contract was entire, or that under the order for this lot and its acceptance credit was to be extended or payment delayed, or that the plaintiff was to give up the goods to it at its place of business before he was entitled to demand payment, then a different question might have been presented to the court. The learned counsel for the appellant cities Woolner v. Hill (93 N. Y. 580), where the court say : “We think it was sufficient that the plaintiffs were ready and willing to pay the contract priee of the alcohol when delivered, and no tender was necessary. This rule is well settled in this- State. (Coonley v. Anderson, 1 Hill, 519; Vail v. Rice, 5 N. Y. 155; Bronson v. Wiman, 8 id. 188; Isaacs v. New York Plaster Works, 67 id. 124.) ” But in that case the stuff was to be delivered at defendant’s .vessel,, and the court had said immediately before the utterance quoted that the plaintiffs had demanded the delivery offering to pay thq purchase price on delivery. In the case at bar • the plaintiff answered the demand for delivery by writing: “ Give us either $600.00 on account of the old bill and leave the balance until the dispute is settled'or else pay for these goods-we have here and let the first bill wait until it is settled complete. ■ We don’t want to give jmu any larger' line of credit than we have already given.” In the absence of any contract as to. terms, the plaintiff, was free to insist upon such terms as he chose, and consequently to demand payment before he shipped the goods to the defendant. I think that the. court did not use the word “ delivery ” in the sense that the defendant was entitled to the goods, and that the plaintiff thereby broke his contract. Benjamin on Sales (7th Am. ed. pp. 694, 695) says : “ 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. The word 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.” I think - that the expression as used, in view of the disposition of the case, simply meant that the plaintiff never parted with the possession of the goods, i. e., he did not. give them over to the defendant although a demand was made upon him. “ Ordinarily, and in the absence of an agreement to the contrary, the seller is- under no obligation to send or carry to the buyer the goods sold. His duty is fulfilled by so placing them at the. disposal of the buyer that they can be removed by him.” (24 Am. & Eng. Ency. of Law [2d ed.], 1068.) Without any proof as to the con- ' ditions of this sale, the seller asked payment for the goods which he had “ here.’’ The buyer' had theretofore written that it would promptly pay any bills when the seller proved the delivery of the goods. There is not the slightest proof that the seller, in insisting upon the terms indicated by him, ..violated any contract between them, and the mere finding of “non-delivery,” for the reasons already indicated, does not inevitably require a conclusion of his breach of contract.

The judgment must be affirmed, with costs.

Hookes, Gaynoe, Rich and Milleb, JJ., concurred. ' "

Judgment affirmed, with costs. ■ ,  