
    William Salomon, Plaintiff, v. Eugene Corbett and Patrick McAuliffe, Defendants.
    
      Oontmat for the sale of several chattels — when entire — recovery for its breach'.
    
    A contract embraced in a letter, stating “I have sold you a spider phsston for §475, a brougham for §450, a sleigh for §175, total, $1,100, with the understanding that, upon resale by you of the spider phaeton, you are to pay me at once §550 cash, or, on sale of the brougham, §500 cash. The balance of the money (§550 or §600, respectively) to remain with you and be used up either in the purchase by me of carriages or repairs thereof,” is a contract for the sale of the three vehicles for §1,100, and not a sale of each vehicle separately; and where the vehicles are delivered and the phroton has been sold by the vendee, on account of which, he has paid only §300.80, the entire sum of §1,100 becomes due and payable, and the vendor is entitled, in an action to recover damages for the breach of the contract, to recover such sum of §1,100, less the amount actually paid.
    Motion by the defendants, Eugene Corbett and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court.
    
      Paul F. De Fere, for the plaintiff.
    
      Max Stevnert, for the defendants;
   Barrett, J. :

The action is for damages for the breach of a contract with, respect to the purchase and sale of three vehicles. This' contract is embodied in a .letter from the plaintiff to the defendants which •reads as follows : .

“ Messrs. Corbett & MoAuliffé :
“Dear Sirs.—I have sold yon a spider phseton for $475, a brougham for $450, a sleigh for $175, total $1,100, with the understanding that upon resale by yon of the spider, phaeton you are to pay me at once $550 cash, or on sale of the1 brougham $500 cash. The balance of the money' ($550 or $600 respectively) to remain with you and be used up either in the purchase by me of carriages or repairs thereof. In case you shall not have sold either the phaeton or the brougham in time to give me a check on or before May 16th, you will please, when the payment is to be made, make it for my account to Speyer & Company, Mills Building.
“.Please acknowledge correctness of this and oblige,
“ Tours truly,
■“ W. SALOMON.”

It is averred in the complaint, and admitted in the answer, that the plaintiff delivered to the defendants one of these vehicles—• the phaeton. It is also averred that the plaintiff tendered to the ■defendants the other two vehicles, but that the defendants refused to receive, accept or pay for them, and refused to further execute the agreement or to fulfill the terms and conditions thereof. This averment is denied in the answer. Upon the trial the plaintiff proved that he did more than tender the two other vehicles. • He in fact •delivered them. His coachman testified without contradiction that when the contract was made Corbett asked him “ to leave the carriage at the plaintiff’s stable until the plaintiff’s lease expired; ” and they were accordingly left there. Corbett testified that, when he received the letter which constitutes the contract, he called on the plaintiff, and the latter informed him that he could use the stable until such time as he (Corbett) eventually could take the carriages to his shop. There was thus in effect a delivery of the carriages under the contract. They remained thereafter in the plaintiff’s stable as the defendant’s property — the plaintiff being but a gratuitous bailee thereof. The evidence on the latter head was introduced without objection. No point was made of a variance between the -allegations of the complaint and the proofs. The case was tried upon these proofs .and determined upon their legal effect. The only point made by the defendants was that the plaintiff had failed to prove a cause of action. . The transactions referred to occurred in May, 1894, and the vehicles remained in the plaintiff’s stable until July, 1894, when the defendants removed the spider phaeton, which they had sold to one Bishop. Upon this latter sale the defendants became bound under the contract to pay the plaintiff “ at once $550 cash.” They failed to make this payment. It was not until the sixteenth of the following October that they made any payment, and then they paid but $300.80 upon account. That, in fact, is all they Have ever paid. They were told by the plaintiff's agents that they could have the other two vehicles when they paid the balance of the-$550. After many unavailing requests for this balance the. plaintiff sold these other two vehicles, realizing as the net proceeds of the sale $186.75. He credited the defendants with the latter sum on account of the total amountof $1,100, payable under the contract. , He.also-credited them with $32.10 for certain repairs which they had made to some broughams of his. These two sums, with the $300.80 paid upon account of the $550, aggregate $519.65. Deducting the latter sum from the $1,100 we have a balance of $580.35. For the latter sum, with interest, in all $697.77,.the learned trial judge directed a. verdict for the plaintiff.

There was no disputed question of fact, and the parties respectively requested a direction. Their requests were general and specified no-grounds.- Whether the direction was correct depends, therefore,, upon the proper construction of the agreement. All the vehicles, having been delivered, the right to payment depended upon the-terms of this agreement. That right is not affected by the plaintiff’s conversion of the vehicles. The defendants interposed no-counterclaim for such conversion, and they cannot well object to the credit which the plaintiff has chosen to give them as the result, thereof. The contract having been performed on the plaintiff’s part by the delivery of all the property, what were the rights of the respective parties thereunder with regard to payment ? We think the true construction of’ the contract is that there was a sale of the three vehicles for $1,100. It was not a sale of each vehicle separately. It is true that the price of each vehicle is specified, but that; was merely an indication of the process by which the price of’ $1,100 for the entire three was reached. This is plainly evidenced by the-context. If the intention'had been to sell each vehicle separately it would have been quite unnecessary to add the words and figures, “ total, $1,100.” It will be observed, too, that the payments upon a resale have no relation to the price of any one vehicle. If, for instance, the spider phseton is sold, the defendants are to-pay, not $475, but $550. So, if the brougham is sold, they are to-pay, not $450, but $500. What, in case of any such resale and payment, is then to be done ? “ The balance of the money ” (1550-in. the one ease, $600 in the other) is to remain with the defendants and "be used up, either in the purchase" by the plaintiff of carriages or repairs thereof. The balance of what money ? Clearly of the $1,100, less the sum so actually paid in cash. There could be no balance of the whole without payment of the part, otherwise we would make a balance out of nothing save an unfulfilled obligation to pay on account. The intention here is quite plain as evidenced.both by the letter and the spirit of the instrument. The defendants were to j>ay $1,100 for the three vehicles, but they were permitted to pay it in a particular way. Thus," if they sold the phaeton and then paid $550 upon account of the $1,100, they could pay the balance of $550 in the manner indicated, So if they sold the brougham and then paid $550, they could pay the balance of $600 in like manner. But surely if they sold either of these vehicles and did not then pay the agreed sum, they were not still to have the privilege of paying the balance in filie specified manner. Upon the defendants’ construction their privilege would continue notwithstanding the total breach of the agreement to pay upon a resale. They need not thereupon pay $1, and the plaintiff’s only remedy would be to sue for the $550 {or the $500 as the case might be) and to get the rest of the $1,100 in carriages or repairs. This is a preposterous view of the agreement. The balance of the $1,100 was only to remain with the defendants in case, upon a resale, they actually paid in cash “ at once ” the agreed sum. Failing to do that, the privilege as to the residue ceased and the contract took its natural course. "We think, therefore, that upon the defendants’ failure here to pay “at once $550 cash” upon the.saleby them of the pliseton the entire sum of $1,100 became due and payable. The direction was, therefore, right and the exceptions should be overruled and judgment ordered in the plaintiff’s favor for $697.77, with interest from the date of the trial, and costs.

Rumsey, O’Brien and Ingraham, JJ., concurred;' Van Brunt, P. J., dissented.

Exceptions overruled and judgment ordered in plaintiff’s favor for $697.77, with interest from the date of the trial, and costs.  