
    A. F. Engelhardt Company, Appellant, v. Benjamin Benjamin and Others, Respondents.
    
      IAen — possession is essential to it- — right of lien under a, conditional sale, lost by delivery — tender and performance must be proved in an action at Icm.
    
    A complaint alleged tlmt the defendants agreed to pay a certain sum for the taking-down of their fixtures in one store and their removal and putting up in another, and to pay another sum for glass counters and cases combined, and a further-sum for certain work to he done and materials to be furnished, and that ‘ ‘ under and in pursuance of the various contracts hereinbefore enumerated (the plaintiffs) the said Engelhardt Company proceeded to and was engaged in discharging the obligations which they thereby assumed ” when their workmen were ejected from tlie premises of said defendants by the sheriff under an execution in favor of a judgment creditor of said defendants, and had ever since been excluded therefrom; that a part of the amount due on the contract had been paid, but that there was a balance due, and for this the plaintiffs claimed a lien “for the-balance of the purchase price of such of said merchandise as was sold and'delivered by said company, and as and for its work, labor and service as a mechanic upon suclrof said merchandise as was tlie property” of the defendants at the time of the execution of the contract mentioned in the complaint.
    
      Held, that, considered as a suit to foreclose a lien upon a chattel, the complaint did not state a cause of action as to the fixtures which were to he taken down and removed and put up iu another store, as the plaintiffs never had possession of them;
    That as vendor of the glass counters and cases combined and the other material the plaintiffs had a lien while the property remained actually or constructively in their possession, hut that as it was necessary, in order to maintain an action to foreclose a lien, that the lienors should have tendered the goods to the vendees, or expressed a desire to have them complete their puroliase. and as the only allegation tending to establish a tender was the plaintiffs’ statement that they claimed a lien for the balance of such merchandise as “ was sold and delivered,”' the complaint could not he sustained;
    
      That if tlio averment was meant as an allegation that the goods were actually delivered, it was equally fatal to the plaintiffs, who lost their lien upon the goods by their delivery;
    That even in the case of conditional sales, if the vendor delivers the goods without demanding and insisting upon payment, the condition of prior payment is ■ waived;
    Thai, considered as an action at law for damages, the complaint was defective, in that it failed to allege a delivery or tender of the property sold, nor did it allege that any work was actually done;
    That the statement, that the “said Engelhardt Company proceeded to and was engaged in discharging the obligations” assumed, did not show' that anything liad really been accomplished.
    Appeal by the plaintiff, A. E. Engelhardt Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the comity of Kings on the 20th day of March, 1896, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint on the opening of the plaintiff’s counsel upon the ground that the complaint did not state facts sufficient to constitute a cause of action.
    
      Howard A. Sperry, for the appellant.
    
      Frederick E. Anderson, for the respondents.
   Willard Bartlett, J.:

This is an action to foreclose a lien which the plaintiff claims to have, as vendor, upon certain personal property sold to a firm in which the defendant Kaufman was a partner, and also a lien on certain fixtures which the plaintiff’s assignor had contracted with said firm to take down in one store, remove and re-erect in another. The record shows that the complaint was dismissed upon the opening of plaintiff’s counsel, on the ground that it did not state facts sufficient to constitute a canso of action. In opposition to the motion to dismiss the plaintiff road in evidence the contract referred to in the complaint, and the only question before us is whether the facts set out in the complaint, as aided by that contract, are such as to entitle plaintiff to any relief.

The complaint alleges that the plaintiff is a domestic corporation, to which the cause- of action therein set forth has been assigned; that in August, 1895, one May E. Engelhardt, doing business as A. F. Engelhardt Company, entered into a contract with the defendants Benjamin Benjamin and Louis Kaufman, constituting the firm of Benjamin & Kaufman, whereby it was agreed that said defendants should pay $740 for taking down their fixtures in one store and removing and putting them up in another; that said Engelhardt contracted with said firm to supply glass counters and cases combined at an agreed price of $473, and one outside show case of the value of $144, and in addition thereto contracted to do certain work, labor and -services and furnish certain materials at the reasonable value of $202.44; that “ under and in pursuance of the various contracts hereinbefore enumerated the said Engelhardt Company proceeded to and was engaged in discharging the obligations which they thereby assumed,” when their workmen were ejected from the premises of Benjamin & Kaufman by the sheriff of Kings county, under and by virtue of an execution issued to him by a judgment creditor of the firm, and that said sheriff then excluded and ever -since has excluded the, said Engelhardt Company, its agents, servants.and assigns from completing the contract; and that Benjamin & Kaufman have paid to the said Engelhardt Company $500 on account of said contracts, leaving a balance of $915.44 due and owing, for which “ plaintiff claims a lien for the balance of the purchase price of such of said merchandise as was sold and delivered by said company and as and for her work, labor and service as a mechanic upon such of said merchandise as was the property of the defendants Benjamin & Kaufman,” at the time of the execution of the contract mentioned in the complaint. Simon Frank, Oscar Goerke and Rudolph Goerke, Jr., are made defendants as subsequent lienors only.

It does not seem to us that the plaintiff has alleged enough to make out any cause of action whatever. Let ns consider the case, first, as a suit to foreclose a lien upon a chattel. (Code Civ. Proc. §§ 1737-1741.) Such a lien could not arise in favor of the plaintiff’s assignor in respect to personal property in the store of the defendants, Benjamin & Kaufman, merely because the plaintiff’s assignor had done work in taking down and removing that property and putting it in place again. As to these fixtures, which were never in the possession of the plaintiff’s assignor at all, we know of no theory upon which a lien can be claimed. As the vendor, however, of such • property as she agreed to sell to the defendants, Benjamin & Kaufman, she had a lien for the purchase price as long as the property remained actually or con•structively in her possession, or had not been unconditionally delivered to the buyers. Still, she would have no cause of action against the purchasers, to enforce her vendor’s lien, until she had tendered the property to them, or done something else to manifest her desire that they complete the purchase, and they had failed or neglected to keep their part of the contract in reference to making payment. Now, nowhere in this complaint is there any allegation that the. plaintiff’s assignor ever furnished, or offered to furnish, to the defendants, Benjamin & Kaufman, the glass counters and cases, the ■outside show case, and the other materials covered by the contract,, unless such an allegation is to be found in the ninth paragraph, where the plaintiff alleges that it “ claims a lien for the balance of the purchase price of such of said merchandise as was sold and delivered.” But if this is intended as an averment that the personal property embraced in the contract of sale was actually delivered to the purchasers before the suit was begun, it is equally fatal to the plaintiff’s ■case. A vendor’s lien is lost by an unconditional delivery to the purchaser of the goods which are the subject of the sale. A lien has been defined to be “ a right to possess and retain a thing until some charge upon it is paid and removed.’ (2 Story’s Eq. Juris. § 1216.) The character of such a lien in favor of one who sells personal property is well stated by the Supreme Judicial Court of Massachusetts. “By the principles of the common law, a vendor of goods has a lien upon them so long as they remain in his possession and the vendee neglects to pay the price according to the conditions of sale; and if payment is, by agreement, postponed to a future day and the vendee becomes insolvent, while the goods are yet in the hands of the vendor, or of a carrier or middle man employed to convey them to the vendee, the vendor may retain them or stop them in ti°ansifu until the price is paid.” (Parks v. Hall, 2 Pick. 206, 212.) As the lieu is divested by an absolute and perfect delivery, a construction of the complaint which makes the recital in the ninth paragraph equivalent to an allegation of delivery does not help the plaintiff in the least. There is nothing in the complaint to indicate that the sale of the materials, which the plaintiff’s assignor was to supply to the defendants, Benjamin & Kaufman, was conditional. Indeed, the contract indicates the contrary. But, even if there was, the rule of law applicable to conditional sales is, that a delivery of the goods sold to the vendee, without insisting upon the performance of the condition, operates as a waiver thereof. “ Where goods sold, to be paid for in cash or notes on delivery, are delivered to the purchaser without the cash or notes being given or demanded at the time, the presumption is that the condition is waived and that a complete title vests in the purchaser.” (Parker v. Baxter, 86 N. Y. 586.) The plaintiff claims a lien for the balance of the purchase price of such merchandise as was “sold and delivered” by its assignor to the defendants, and no fact is stated or suggested from which it can be inferred that the delivery was not complete and absolute and without the reservation of any property right in the material delivered.

The appellant insists, quite correctly, that even if the court cannot afford the plaintiff: the equitable relief prayed for, nevertheless the complaint should not have been dismissed if the facts set out therein warrant a recovery of damages, as in an action at law. We have, therefore, considered the complaint in that aspect, but find it •equally insufficient. As already shown, there is no allegation of a delivery or tender of the property sold, and the' complaint is similarly defective in regard to the doing of the work. It fails to state that the plaintiff’s assignor actually did any work. The statement "that the “ said Engelhardt Company proceeded to and was engaged in discharging the obligations ” which were assumed under the contract, does not show that anything really had been done, or what or how much. It is by no means the equivalent of an averment that the plaintiff’s assignor had performed all the conditions of the contract on her part.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  