
    Henry E. Gourd, Respondent, v. Thomas Healy, Appellant.
    First Department,
    March 24, 1910.
    Sale — when title does not pass — failure to tender delivery.
    A contract for the sale of wine stored in undisclosed wine cellars in a foreign country and in cases not identified by marks or segregated from the general stock, the price to become due on delivery with custom duties paid by the seller, does not transfer.title to the buyer, being a mere executory contract of sale. .
    Hence, the seller cannot maintain an action for the purchase price .where he has not imported the wine, paid the duty, or tendered delivery to the buyer.
    Appeal by the defendant, Thomas Healy, from a judgment of the Supreme Court in favor of the plaintiff, enteréd in the office of the clerk of the county of Hew York on the 12th day of Hovember, 1909, upon the verdict of a jury, rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial, made upon the minutes.
    ' M. E. Kelley■ of counsel {Kelley da Connelly, attorneys], for the appellant.
    
      Frank E. Wynn of counsel [Townsend da Wynn, attorneys], for the respondent.
   Clarke, J.:

On May 21, 1906, the plaintiff, at Hew York, agreed to sell thirty-five cases of Chateau^Yquern, 1901,-quarts, and fifteen cases Chateau Yquem, 1901, pints, and the defendant agreed to purchase, the same for $740, payable on delivery, duty paid by plaintiff, on the dock, Hew York. The wine was then in certain undisclosed wine cellars in Bordeaux, France. The said cases of wine were never identified by marks or numbers or even, as to the wine cellars in which they were in storage, and Were never segregated from the general stock of, wine in Bordeaux.

The defendant wrote ón March 27, 1907, I consider I made a great bargain in purchasing those wines as they are very fine, but if you could accommodate me by carrying.th¿ same and not have them delivered to me until October, 1907, this year, I will pay iñtérest on same from now on at the rate of 6 per cent to you for the investment of your money; ” to which the plaintiff answered under date of March 28, 1907, “ I am in receipt óf your favor of yesterday in relation to the Chateau Yquem 1901, and beg to say that I will be happy to carry the merchandise until next October,, interest to be added on the value from the 1st inst.”

The plaintiff testified: “These wines were in Bordeaux. I was to transport • them to the United States and pay the cost of transportation and the duty of them in Hew York. I was to delivér them to the defendant on the dock in Hew" York. The goods havé never been brought; they are still in Bordeaux; the duty has never been paid; * * * the cost of transportation has never been paid; the price of $740 which the defendant was to pay for these goods included the cost df transportation, the freight and the duty. * * They were a part of a large quantity of goods, which were in the cellars there in Bordeaux.” notwithstanding these undisputed facts, the learned court directed a verdict for the full amount of the contract price, which included duties and freight. The theory evidently was that title to the goods passed to the. defendant when the contract of sale was made, and that plaintiff was entitled to recover the price as for goods bargained and sold without delivery or tender of delivery on his part. It is apparent that the title never passed to the buyer and that the contract was an executory contract of unidentified goods, because, first, the goods had to be selected out of a. mass and designated and appropriated to this contract as the property of the buyer; and, second, that the seller had to transport the goods when designated and transported to Héw York at his own risk df loss in transit and pay the import duty. This was never done. Until the seller had performed on his part by transporting the goods to New York and paying the duty he could not make a delivery or a valid tender to the buyer.

The situation is expressed in Delaware Trust Co. v. Calm (195 N. Y. 231), where the court said : “ It was the duty of the plaintiff or its assignors to tender performance on their part and to demand performance on the part of the defendants before subjecting them to the expense and annoyance of an action to recover the amount of the purchase price. . Otherwise the sellers would have both money and property and the buyers nothing. * * * The purchaser is not bound to pay the purchase money unless he receives the thing purchased; and how can it be said that he has refused to receive the thing purchased, and to pay. the money for it, when he has never had the opportunity of receiving it ? ’ (Lester v. Jewett, 11 N. Y. 453, 454.)”

In the case at bar the defendant has never repudiated the contract; the plaintiff has never tendered delivery or been in a position so to do. He has possession of the goods in France and a judgment for the price thereof, including freight and duties, and the defendant lias nothing but a judgment against him,

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., Lahghlin, Scott and Miller, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event:  