
    Alvin Higgins, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.
    (Argued April 16, 1875 ;
    decided April 30, 1875.)
    At an auction sale of coal held by defendant in September, 1870, plaintiff purchased and thereafter paid for 100 tons. By the terms of sale the coal was to be taken away by the purchaser in October. If he failed so to do, defendant had the option to discontinue further delivery and to retain the earnest money paid on the day of sale, or to resell the coal on account of the purchaser and at his risk. Defendant was ready and willing to deliver the coal in October and November. Plaintiff demanded it in February, 1871. At that time defendant’s stock of coal was exhausted and it refused to deliver. In an action to recover the value of the coal, held, that plaintiff could not recover; that the stipulation as to time was in view of the contract and the circumstances to be deemed of the essence of the contract, and a condition precedent to be observed by plaintiff to enable him to enforce the same; that defendant was not limited to the remedies prescribed, but it had the right to hold itself absolved from the contract upon the failure of plaintiff to perform.
    Appeal from an order of the General Term of the Court of Common Pleas for the city and county of Hew York, reversing a judgment in favor of plaintiff, entered upon a decision of the court at Special Term, and dismissing plaintiff’s complaint.
    This action was brought to recover the value of 100 tons of coal alleged to have been purchased by plaintiff of defendant, and which it refused to deliver.
    On the 29th September, 1870, at a regular monthly auction sale of coal, held by defendant in Hew York, plaintiff bid off 100 tons. The notice of sale stated that 90,000 tons were to be sold, deliverable at the company’s depot during the month of October, 1870. Upon these terms, among others — “ Fifty cents per ton, in city bankable funds, to be deposited on the day of sale, as a security for the fulfillment of the contract by the purchaser, and the balance to be paid within ten days thereafter, at the office of the company, when the order for the delivery of the coal will be given on their agent at Elizabethport, The coal to be taken away during the month of October, lS'TO. Should the purchaser fail to take it away within the month, the company may, at their option, at any time thereafter, discontinue further deliveries, and retain the fifty cents per ton deposited on the day of sale; or should the company elect so to do, they may resell the coal, either at public sale or otherwise, for account of such defaulting purchaser, who shall pay to the company any deficiency caused by the coal being sold at a price less than that agreed originally to be paid.”
    
      
      Kimberly v. Patchin (19 N. Y., 330), Russell v. Carrington (43 N. Y., 118) distinguished.
    
      
      “ The company may deliver at Hoboken, N. J., all or any portion of the coal now sold, and the purchaser shall accept the same as being delivered on the contract made by this sale, and shall pay therefor ten cents per ton .in addition to the price agreed to be paid for.the coal delivered at Elizabethport.”
    “ Every effort will be made by the company for the fulfillment of its contracts for the delivery of coal; but if at any time the business of the company is so interrupted by storms, floods, breaks, accidents, combinations, turn-outs, strikes among minei's or other employes, or by any other occurrence whatsoever, as to materially decrease the quantity of coal which the company would otherwise have been able to obtain and deliver during the month in which the coal now sold is deliverable, the company will not hold itself liable for, or pay, any damages sustained by reason of the non-delivery of the coal now sold, or of any portion thereof, although a portion of the coal that is received during said month may, in the usual course of the company’s coal sales and business, be disposed of otherwise than in the fulfillment of the contracts made by this sale. Nor will the company, in case the coal now sold is not delivered, undertake a pro rata distribution among the respective purchasers of what is delivered ; but in all cases of non-delivery from any of the above causes, the money paid on coal will be promptly refunded.”
    Plaintiff paid for the coal, as required by the terms of sale, and received an order therefor, but did not demand a delivery of the same until February 24th, 1871; when, as the court found, defendant’s stock of coal was exhausted, in consequence of a strike of its miners, which began in December, 1870, and continued until the May following, during which time the production of coal by defendant was almost entirely suspended.
    
      Nelson Merrill for the appellant.
    An intention between the parties to sell and to buy an unseparated part of a mass is all that is required to make a sale. (Kimberly v. Patchin, 19 N. Y., 330; Russel v. Carrington, 42 id., 118; Lobdell v. Stowell, 51 id., 70.)
    
      Hamilton Odell for the respondent.
    There was no sale of the coal to plaintiff. (White v. Wilks, 5 Taunt., 176 ; 19 N. Y., 337; Foot v. Marsh, 51 id., 288.) It could not be assumed that the coal sold plaintiff was at any time on hand or ready for delivery. (Bronson v. Wiman, 10 Barb., 406.) The court erred in holding that the sale was a completed sale. (Foot v. Marsh, 51 N. Y., 288 ; Field v. Moore, H. & D. Supp., 418 ; Olyphant v. Baker, 5 Den., 379 ; Crofoot v. Bennett, 2 N. Y., 259; Gardiner v. Suydam, 7 id., 357; Joyce v. Adams, 8 id., 291 ; Logan v. Le Mesaurier, 6 Moore, 116; Benj. on Sales, 241; Story on Cont., § 800 ; Chit, on Cont., 338 [m. p.] ; Cushing v. Breed, 14 Al., 376 ; Roper v. Lane, 9 id., 502; Rapelye v. Mackie, 6 Cow., 250.) The complaint was properly dismissed. (Edmonston v. McLoud, 16 N. Y., 545; Lewis v. Mott, 36 id., 305; Hone v. Julien, 9 Abb., 195; Newell v. Wheeler, 4 Robt., 248; affirmed, 36 N. Y., 244; Brookman v. Hamill, 43 id., 565 ; Muldoon v. Pitt, 54 id., 274.
   Folger, J.

At the Special Term the judgment in this case was put upon the ground that the facts found in the findings, and some inferences therefrom made in the opinion, brought this case within the holdings in Kimberly v. Patchin (19 N. Y., 330), and Russell v. Carrington (42 id., 118). The learned judge, in forming his opinion, having arrived at the conclusion that, as a matter of fact and inference, the sale was of a specified quantity of coal, to he taken from a specified general mass, undis tinguishable in quality or value, and that it was the intention of the parties to pass the title to the amount sold, deemed the case within the principle of those authorities, and held that there was a complete sale to the plaintiff and a perfect title given to him.

At the General Term the Court was content with refuting, to its satisfaction, the theory upon which the Special Term had gone; and did not perceive in the findings, nor in any inferences properly deducible therefrom, that the sale was from some certain or identified body of coal, either in bulk or included in any other mass then being anywhere in existence or capable of identification, and so it held that this case did not fall within the rule laid down in the cases above cited.

The Special Term did not notice, as a circumstance entitled to effect in the decision, and the General Term, though alluding to it, laid no stress upon it, that by the terms of the sale to the plaintiff he was bound to take away the coal in the month of October. It is evident that this was a part of the terms of sale of some moment in the estimation of the defendants, for they based upon it, in the same terms of sale, important consequences. A failure of the buyer to take away all the coal bought, within the time specified, gave the defendants the right and power to refuse further delivery, and to forfeit the earnest money paid by the buyer, or to'•resell the coal on the buyer’s account, and at his risk of loss. And we can readily perceive that it is essential to the successful prosecution of the business of the defendants, that they should not be compelled, by the dilatoriness of their vendees, to furnish, upon their docks at Elizabethport or Hoboken, space for the keeping, into succeeding months, of the coal sold by them deliverable in a given month. Hence their stipulation in the terms of the sale appears, from a fair consideration of the language of it, and of the other parts of those terms and of the circumstances, to be of the essence of the contract, to have been really intended by the parties, and to have formed a condition precedent, to be observed and kept by the plaintiff if he wished to be able to retain his contract and to have it enforceable against the defendants. (Benjamin on Sales [2d ed.], p. 481.) The finding is, that the plaintiff demanded a delivery of the coal in February, 1871. There is a finding that he did not offer to take it away until then, and hence did not offer to in the month of October, 1870, as he was required to do to meet the condition precedent. There is lacking, then, a fact which should have been found to sustain the conclusion of law and the judgment. It is a fact which the proofs will not supply, for the evidence was that the defendants were ready and willing to make delivery of the coal in October and November, 1870.

It may not be well said, that though there is this condition precedent in the terms of sale, the defendants had prescribed the only remedies for themselves, in case the plaintiff did not keep the condition. It is true that options of the defendants were provided for; they could forfeit the earnest money paid; they could resell, on the plaintiff’s account, and at his risk; they could discontinue future deliveries. But these were not all. There was also the legal right of every contracting party to hold himself absolved from his obligation when the other contracting party has failed to keep some condition precedent which he is bound to perform. Thus, in an agreement to exchange pieces of real estate on specified terms, and to deliver the deeds at a fixed date, or forfeit the sum óf $500,” it was held by this court that the party not in default might elect to sue for the amount named as a forfeit, or generally for his damages from a breach of the contract by the other party, and in the latter action was not limited to the sum named. (Noyes v. Philips, in MS., decided April 13, 1875.) It is there said that parties are not released from the performance of their contract by reason of the same contract containing a penalty for non-performance. Here the options reserved to the defendants, of a forfeiture of the earnesfc money, etc., are in the nature of penalties for non-performance by the plaintiff, but the relations and rights of the contracting parties, so far as harmonious with the provisions of the contract reserving option, are to be determined by the legal principles applicable.

Nor do we think that this case falls within the principle of 19 New York, and 42 New York (supra). The findings of the Special Term do not set forth facts sufficient therefor. Nor are we able, from the evidence in the case, to make inferences which will supply the lack. There is not that in the testimony which proves or indicates that there was, either at Elizabethport or at Hoboken, at the time of the sale, a mass of 90,000 tons of coal, undistinguishable in kind and quality and value from that contracted for of the defendants; or that, at that time, there was an ascertained body of coal at either of those places, all parts of which were of the same value, and undistinguishable from each other. Rather, it appears to us, that the terms of the contract and the circumstances of the case indicate, that the 90,000 tons at that time offered for sale, had not yet reached either of the contemplated points of delivery, and were not yet gathered into one mass. Nor can we make the inference that it was the intention of the defendants to pass the title to the plaintiff before actual delivery of the quantity he contracted for. .But we do not elaborate the reasons for these conclusions.

As a new trial would not afford opportunity to change any of the facts as now presented, we affirm the judgment of the General Term.

All concur.

Judgment affirmed. 
      
      
        Ante, p. 408
     