
    Sackett & Wilhelms Lithographing & Printing Company, Respondent, v. Frederick T. Cummins, Defendant, Impleaded with George C. Tilyou, Appellant.
    Second Department,
    March 2, 1906.
    Sale — contract to deliver goods F. O. B.—failure tó. show delivery.
    When a contract for the sale.and delivery of advertising posters provides tliat they are to he delivered by the vendor-F. O. B. at the city where the vendee resides, and the only evidence of delivery shows that some of'them were delivered to a hill-posting company in. that city, which company posted a few of them, but no delivery to the defendant is shown, it is error for the court to direct a verdict for the vendor. The question of delivery is for the jury.
    A letter' of the vendee to the vendor repudiating, the order for the posters given by his agent, which'letter was written on first learning of the order, is not as.a matter of law an admission of delivery, hut at the most raises a question, for the jury. - ■ ‘
    Gaynok, _ J. (concurring in result only) : Delivery to the hill-posting company would have been delivery to. the defendant; hut no such delivery was shown,. ’ for the fact that the hill-posting, company posted a few of the posters does not - show that it received the'whole order.
    Appeal by the defendant, George C. Tilyou, 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 30th day of March, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the. Kings County Trial Term, and also from an order entered in said clerk’s office on the 6th day of April, 19.05,. denying the said defendant’s motion for. a new trial macle upon the minutes.
    
      Henry E. Heistad, for the appellant.
    
      Yorke Allen, for the respondent.
   Hooker, J.:

This action was brought tó recover from the defendants the agreed price for printing certain lithographic posters ordered by the defendant Cummins, to advertise the Cummins Indian, Congress, which was at the time exhibiting at a resort of the defendant Tilyou at Coney Island." The defendant Cummins does not appeal, nor was he sworn as a witness upon the trial.

• The appellant contends that the proof of delivery of the posters was not conclusive; that the evidence on that subject was fairly open to the inference that no delivery had been made, and, therefore, that it was error to direct a verdict for the plaintiff.

The order'for these posters specified that they should be delivered F. O. B., Hew York. This order was accepted verbally by the plaintiff, and except as to irrelevant alterations, was the contract for supplying these goods. Plaintiff’s evidence establishes directly that there was no delivery to either of the defendants personally, but instead the delivery was to the American Bill-Posting Company of Brooklyn. While it is true that this bill-posting company caused the lithographs to be posted on billboards and rented fences under its charge and upon which it was customary for it to affix advertising matter of this description, there is no direct evidence to suggest that either of the defendants authorized the American Bill-Posting Company to receive these lithographs or to post them, and for aught that positively appears their receipt by the bill-posting company and their later posting may have been a voluntary act on the part of this company. .While it may be quite, probable that Cummins had made some arrangement with the bill-posting company about receiving and' posting the lithographs, thereby creating it a receiving agent'so. that a delivery, to .this company should be a delivery under the contract, no evidence of the fact is in the record.

The defendant Tilyou never knew of the contract or of the making' of the lithographs until some time" after they had, been delivered to the bill-posting company and distributed to various places. When he was advised by Cummins that this work had been ordered, and supplied he wrote to the plaintiff at once as follows : “ Hr. F. T. Cummins has sent in a bill to me which you have rendered to him for printing lithographs for the Indian Congress. How, I presume you will look to me to pay those bills, but as my contract with him says ‘he shall not obligate me in any way in connection with said Indian Congress, unless I have first approved of his acts in that direction.’ The first I have learned of said debt having been' incurred was on Tuesday when Hr. Cummins sent in your bills for payment. I write you this letter to let you know the exact understanding of matters.” He also wrote to Cummins disavowing the latter’s act, and stating that he would not recognize the claim for the printing of these lithographs. The" plaintiff takes the view that by this correspondence Tilyou treated the matter as. if these posters had been furnished, but we believe that Tilyou’s letters are not open to this construction alone. They were dated and setit concededly within two or three days after he first learned of the - jierformance of this work. The learned trial court held that because these letters of Tilyou did not disclaim delivery they are open to' the inference that he waived any claim of non-delivery in' the matter -then in difference between himself and the plaintiff. Such inference is at most a question of fact, and its effect is to be determined by the jury,, and should not have been disposed of as a proposition of law by the court. By its direction of a verdict the Court held that there was not only no evidence of non-delivery, but that as- a matter of law the only inference capable of being drawn from all the evidence was that .the posters had been delivered- ' For this error the judgment should be reversed and a new trial granted. . -

Jenks, Rich and Miller, JJ., concurred; Gaynor, J., concurred in separate memorandum. - -

Gaynor, J.

(concurring):

I concur in the reversal, but do not agree that it was proved that the posters .were received by the bill-posting company and posted .' on the. billboards. If that were so, then their delivery Was shown and the judgment would have to be affirmed, for such things go-from the-printing office to the billboards — that'is their delivery. • The -appellant employed his codefendant .Gummins as his general manager ” át a monthly salary to exhibit the latter’s Indian show at the- appellant’s park at Coney Island. The agreement is written, . and provides that the appellant shall pay .the expenses necessary to “install” the show and for its “maintenance.” The quotation from the agreement in the appellant’s letter is false ; there is no such thing in it. The trial judge therefore correctly ruled that the appellant was bound by the act of the defendant Cummins in ordering the posters; that it was within his agency. But it was not proved that- the posters were ever delivered. The failure on -that head is pitiful, especially in the case, of a plaintiff seeking judgment for an honest bill. Counsel for the plaintiff first considered that evidence that two of the posters Avere seen posted in the appellant's park proved delivery of all of them — ll,0p8 in all — and rested. Next he produced the evidence of the bookkeeper of 'the bill-posting firm that he saw some of them on billboards; and finally he deemed an admission of counsel for defendant Cummins in open court that the posters were delivered to him as binding on the appellant. The feelings of the learned trial judge may be imagined. In his anxiety to do justice in spite of the obstacles put in his way, he could not bring himself- to direct a verdict for the defendants, and finally directed a verdict for the plaintiff, holding a delivery was shown.

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