
    Robert J. Gray, Resp’t, v. Francis T. Walton, App'lt.
    
      (Court of Appeals,
    
    
      Filed October 28, 1887.)
    
    1. Auction—Sale of chattels—Place of delivery.
    The vendor on a sale of chattels is bound to deliver them to the vendee at the place where they are at the time of the sale, on performance by the latter of the terms of sale, although the contract is silent on the subject of delivery. The obligation, if not expressed, is implied. This obligation may be limited, qualified or excluded by the terms of the contract
    2. Same—Vendor cannot take advantage of delay caused by him.
    By the terms of an auction sale, the goods sold were to be called for before May 1. Certain of the goods bought by the plaintiff were charged in the bill rendered at twice the sum at which they were struck off to plaintiff. The plaintiff repeatedly called upon the auctioneer before the first of May to correct the bill, and expressed his readiness to pay the true amount, but was put off from day to day until the second of May, when the matter was settled, and the plaintiff paid the bill to the auctioneer. Held, that the delay having been caused by the defendant, in demanding a larger sum than he was entitled to receive, he was under obligation to deliver the goods on the premises, or put them within the dominion of the plaintiff, •notwithstanding the expiration of the period for removal fixed by the contract.
    2. Same—Value of goods—Measure of value.
    The plaintiff was entitled to recover the value of the goods on the 2d of May. • The recovery was not limited to the purchase price the goods brought on the sale, nor was the purchase price strong evidence of the value.
    Appeal by defendant from the judgment of the superior court of New York city affirming a judgment entered on the verdict of a jury at a trial term of said court and affirming, an order denying a motion for a new trial on the judge’s minutes.
    This is an action to recover the value of goods bought at an auction conducted by Mr. John H. Harnett, auctioneer, under the direction of defendant.
    The goods were struck off to the plaintiff on the 24th and 25th days of April, 1883, at the St. James hotel in the city of New York.
    
      The terms of sale were endorsed on the cover of the catalogues used at the sales, and were, “ A satisfactory deposit required from all purchasers. All goods must be fully paid for before being removed; and if not paid for within twenty-four hours after the sale, the deposit will be forfeited, the sale annulled and goods resold for the account of the purchaser. All goods are sold as they are, and no allowance will be made for damaged articles. All goods must be removed at purchaser’s own risk and cost. Sale will also be made .subject to terms as stated at time of sale.”
    A bill of articles purchased was m.ade out and delivered to plaintiff on the evening of April 26.
    The plaintiff found an error in the bill—two washing machines were purchased, as he contended, for fifty dollars for both. Mr. Harnett charged him fifty dollars for each in the bill. The plaintiff sought to have this error corrected; but Mr. Harnett was so busy, as he said, with the sale that he was unable to see Mr. Gray in regard to it till the second day of May, when an agreement of this difference was effected. Then the plaintiff paid his bill. He was at all times ready to pay.
    As the plaintiff and Mr. Harnett disagreed upon the trial as to the terms of the settlement, the court left that question and the question of what the agreement actually was to the jury who found with the plaintiff.
    On the second day of May, when the goods were paid for, Mr. Harnett stated to plaintiff that the door would be open, in the afternoon, when he could get his goods.
    Plaintiff went in the afternoon of the second day of May for his goods, but could not get them.
    Plaintiff complained at once to Mr. Harnett about his inability to get his goods. Mr. Harnett said he would see that plaintiff obtained them.
    Plaintiff made frequent attempts to get his goods, and. frequent applications to Mr. Harnett and to defendant for them with no result except good promises.
    Defendant received the money paid to Mr. Harnett with, full knowledge of all the facts.
    Defendant delivered goods to purchasers on the second and third days of May 1883.
    Failing to obtain his goods the plaintiff brought this action. The jury rendered a verdict for plaintiff for $1,000-upon which judgment was entered.
    
      Joseph A. Shoudy, for app’lt; Jacob F. Miller, for resp’t.
   Andrews, J.

—By the general rule of law, the vendor on a sale of chattels is bound to deliver them to the vendee at the place where they are at the time of the sale, on performance by the latter of the terms of sale, although the contract is silent on the subject of delivery. The obligation to deliver, if not expressed, is implied. 2 Kent’s Com., 677; Benj. on Sales, 555. The obligation, however, may be limited or qualified, or altogether excluded by the terms of the contract. The terms of the auction sale in,this case did not relieve the defendant from the obligation to deliver the property purchased by the plaintiff, except in the contingency that the purchaser failed to complete the purchase by paying for and removing the property from the St. James Hotel before the 1st of May. Up to that time the defendant, on payment being made, was bound to deliver the goods purchased on the premises, when called for by the plaintiff. The omission of the plaintiff to pay for the goods, or to call for or remove them before the first of May, released the defendant from any further responsibility, and the goods remained on the premises after that time at the risk of the plaintiff, unless the delay was attributable to the act of the defendant, or unless the defendant waived the condition as to payment and removal.

Upon the facts found we think the plaintiff was excused, and that the delay in paying for the goods until the 2d of May, was occasioned by the neglect and default of the defendant to correct the bill of items in time to enable the plaintiff to comply with the terms of sale. The jury have found that the two washing machines, which were charged in the bill at $100, were struck off for $50.

The plaintiff repeatedly called upon the auctioneer before the first of May to correct the bill, and expressed his readiness to pay the true amount, but was put off from day to day until the second of May, when the controversy was settled and the plaintiff paid the bill to the auctioneer, whe paid over the money to the defendant. The delay having been caused by the act of the defendant in demanding a greater sum than he was entitled to receive, he cannot, in justice, be permitted to insist that the omission of the plaintiff to pay for and receive the goods before the first of May discharged him from the obligation to make delivery. The limitation in the contract was inserted for his .protection, as he was to vacate the premises on the first of May, but it was connected with the correlative right of the purchaser to entitle himself by payment to call upon the defendant for the goods and to receive them before the expiration of the period mentioned. It is not, we think, an answer to the claim of the plaintiff that he might have tendered the true amount and thus have entitled himself to a delivery before the first of May. He was not bound to take this course. Having offered to comply with the terms of sale, he was not in default, and the defendant having, ou the second of May, accepted payment, he was, we think, under obligation to deliver the goods on the premises, or, at least, to put them within the power, or under the dominion of the plaintiff, notwithstanding the expiration of the period for removal fixed by the contract. See Story on Sales, § 310, and cases cited.

The sale, although comprising distinct articles purchased on separate bids, was treated by the parties as one transaction, and the separate sales as parts of an entire contract. Mills v. Hunt, 17 Wend., 333; S. C., 20 id., 431.

The charge, as to the rule of damages, was correct. The plaintiff was entitled to recover the value of the goods on the second of May, if entitled to recover at all, and the charge that the jury in determining the value, might consider the price the goods brought on the sale, and the refusal to charge that the recovery was limited to the purchase price, or that the purchase price was strong evidence of the value, was proper. Campbell v. Woodworth, 20. N. Y., 499; Gill v. McNamee, 42 id., 46; Hoffman v. Connor, 76 id., 124.

In view of our disposition of the main questions, the exceptions on other points do not call for special consideration.

The judgment should be affirmed.

All concur, except Ruger, Oh. J., not voting.  