
    Herman Isaacs, Respondent, v. Terry & Tench Co., Appellant.
    (Supreme Court, Appellate Term,
    November, 1907.)
    Sales — Remedies of seller — In general — Election of remedies: Action for price — Pleading and proof — Evidence admissible under pleadings. i
    A vendor, upon the breach of an executory contract of sale, may store the property for the buyer and sue for the purchase price; may sell the property as agent for the vendee and recover any deficiency resulting, or he may keep the property as his own and recover the difference between the contract price and the market price at the time and place of delivery. These several remedies are not concurrent; and, where the vendor elects to pursue one remedy, he may not thereafter adopt a different one.
    Where the 'complaint alleges that the defendant agreed to purchase and plaintiff to sell a certain quantity of iron beams at a specified price; that plaintiff performed all the conditions on his part and was ready to deliver the beams, but that defendant refused to accept them “to the damage of the plaintiff in the sum of $1,449,” it states a good cause of action for breach of contract and will support a recovery on any of the three theories above stated, and a judgment for plaintiff in a sum representing the difference between the ■ contract price and the sum for which he sold the goods will be affirmed.
    A claim that, on a former trial resulting in a judgment in favor of plaintiff which was reversed on appeal, the plaintiff recovered on proof showing the difference between the contract and the market price, if clearly established, would support an appeal from the judgment in the present action; but, in the absence of evidence in the record that plaintiff in the former action elected to treat the goods as his own, and the record on the prior trial not being before the court, it cannot pass on the question whether the evidence there adduced constituted an election.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the City Court of the city of Hew York.
    John 0. Wait, for appellant.
    Herbert J. Hindes, for respondent".
   Leventritt, J.

¡Reduced to its lowest terms the complaint alleges that the defendant agreed to purchase and the plaintiff to sell a certain quantity of iron beams at a specified price; that the plaintiff performed all the conditions on his part, was ready to deliver the beams, but that the defendant refused to accept them “ to the damage of the plaintiff in the sum of $ 1,449.”

The plaintiff had a recovery of $900, being the difference between the contract price and the sum for which he sold the goods.

The only serious ground of reversal urged is that the plaintiff has heretofore elected to keep the property as his own and that he could not therefore treat the beams as belonging to the defendant, sell them as its agent, and recover the difference between the contract price and the-price realized.

It is too well settled to require discussion that a vendor, upon the breach of an executory contract of sale, has three remedies: 1. He may store the property for the buyer and sue for the purchase price. 2. He may sell the property as agent for the vendee and recover any deficiency resulting. 3. He may keep the property as his own and recover the difference between the contract price and the market price at the time and place of delivery. Van Brocklen v. Smeallie, 140 N. Y. 70, 79; Hayden v. Demets, 53 id. 426; Mason v. Decker, 72 id. 595. It is also established that these several remedies are not concurrent and that, having elected to pursue one remedy, the vendor may not thereafter adopt a different one. Bridgford v. Crocker, 60 N. Y. 627; Gray v. Central R. R. Co., 82 Hun, 523.

It is claimed in the case at bar that, on a previous trial resulting in a judgment in favor of the plaintiff, which was reversed on appeal, the plaintiff recovered on proof showing the difference between the contract and the market price. If that were clearly established, there would be merit in the defendant’s appeal. Any affirmative binding act, showing that the plaintiff elected to treat the goods as his own, as he necessarily does when he seeks to recover the difference between contract and market price, is inconsistent with an assertion of title in the defendant which is involved in suing for the difference between the contract price "and that realized on a sale as agent for the defendant. '

The difficulty with defendant’s position, however, is that there is no evidence in the record showing the election. The complaint as drawn states a good cause of action for breach of contract and would support a recovery on any of the three theories. Abb. Pr. Pl., § 826, and cases cited; Duryea, Watts & Co. v. Bayner, 11 Misc. Rep. 294. The defendant could have compelled the plaintiff to elect his measure of damage by moving to have the complaint made definite and certain or seeking a bill of particulars. On the complaint the proof of damage was competent. The record on the prior trial is not now before us and hence we cannot pass on the question whether the evidence there adduced constituted an election.

The judgment must be affirmed, with costs.

Gildersleeve and Erlanger, JJ., qoncur.

Judgment affirmed, with costs.  