
    George Constantin, Respondent, v. A. H. & F. H. Lippincott, Inc., Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1915.)
    Contracts — of conditional sale — carriers—vendor and purchaser — sales.
    A contract of conditional sale of a soda water fountain provided for its delivery “ f. o. b. Philadelphia,” the place of business of the Vendor, and that it should at all times be entirely at the vendee’s risk from and after delivery to him or to a carrier for transportation. At the vendee’s request the vendor consigned the fountain to himself at the vendee’s place of business in New York city and upon delivery to the vendee parts of the fountain were found to be broken. Held, that though the fountain was consigned to the vendor’s own order the only possible inference was that the fountain was injured in transit,' and that no recovery could be had -against the vendor.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of the plaintiff and against the defendant.
    J. Albert Lane, for appellant.
    John D. Stephanidis (Francis M. Applegate, of counsel), for respondent.
   Philbin, J.

The plaintiff purchased from the defendant under a conditional bill of sale a soda water fountain. Upon the delivery of the fountain to plaintiff it was found that parts of it were broken.

The plaintiff now seeks to recover from the defendant the damages suffered because of such defective condition. The contract of. sale provided that the goods were “to be f. o. b. Philadelphia,” (the place of business of the defendant) “ and to be entirely at vendee’s risk at all times from and after delivery to vendee or to a carrier or transportation company.” The vendee was to pay the freight. The said contract or bill of sale provided further for certain payments of the purchase price to be made after delivery and that title to the goods should not pass to the vendee until the full purchase pride was paid and that the goods should remain the property of the vendor until that time. The defendant had the consignment made to itself at the plaintiff’s place of business in New York city and the bill of lading so reads. Upon the trial the plaintiff was allowed to prove as the measure of damages what it would cost to repair or replace the broken marble. There was no attempt made to show the value of the said fountain if in proper condition, and the value in its defective state.

In view of the express stipulation that the fountain was to be delivered f. o. b. Philadelphia and that it was to be entirely at plaintiff’s risk at all times from and after delivery to the carrier it cannot be said that the defendant became responsible for the defective condition existing at the time the plaintiff received the fountain, particularly as the only inference possible upon the evidence is that it was injured while in transit. It was 'uncontradicted that the fountain was free from any breaks and was in proper condition when delivered by the defendant to the transportation company at Philadelphia and it is not contradicted that it was in the said defective condition claimed by plaintiff when received by the latter. The agreement differs from the ordinary contract of conditional sale providing for a delivery at the address of the vendee. In such circumstances the contract is not performed by the vendor unless delivery is duly made. Thompson Co. v. Vacheron, 69 Misc. Rep. 83. The effect of said provision as to delivery in Philadelphia was not nullified by the defendant having the goods consigned to its own name at plaintiff’s address. When the defendant delivered. the goods to the carrier it effectually parted with its, title to the goods except in so far as the latter stood as security for the price the plaintiff had agreed to .pay. No further act on the part of the defendant was necessary to transfer the title to the plaintiff. National Cash Register Co. v. South Bay C. H. Assn., 64 Misc. Rep. 125-127.

The conclusion must be reached that no liability on the part of the defendant was established. It further must be said that there was error committed as to the measure of damages adopted. The difference in value between the said fountain in the defective condition and in proper condition was the correct standard.

Guy and Page, JJ., concur.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.  