
    Guiseppe Capuano, Appellant, v. Italian Importing Company of New York, Respondent.
    (Supreme Court, Appellate Term, First Department,
    March, 1915.)
    Contracts — when title of goods passed to vendee — when entitled to vendor’s lien under Laws of ign, chap. 571, § 134.
    Where goods were bought and paid for under an agreement that the vendor would take at the invoice price any of the goods not sold by the end of the season, the title to the goods passed to the vendee at the time of delivery.
    On the vendor’s refusal to take back the goods as agreed the vendee could either rescind and sue for the difference between the agreed price and the value of the goods, or treat them as belonging to the vendor and sue for the contract price, and upon electing to pursue the latter course was entitled under section 134 of chapter 571 of the Laws of 1911 (Sales Act) to a vendor’s lien which the vendee was not estopped from asserting because of a statement that the goods were at the disposal of the vendor, nor was the action to recover the contract price a waiver of the lien under section 137 of said statute.
    Plaintiff appeals from a judgment for defendant ' of the City Court of the city of New York, entered on a verdict directed by the court and from an order denying a motion to set aside the verdict and for a new trial.
    Cohen Brothers (Joseph W. Umans, on brief, Lawrence B. Cohen, of counsel), for appellant.
    Robson & Simpson (Ely Simpson, of counsel), for respondent.
   Pendleton, J.

The action is in replevin. The answer is a general denial and sets up as a separate affirmative defense an alleged vendor’s lien on the goods and the right to possession thereunder. It was apparently conceded at the trial, and nothing to the contrary is now claimed, that defendant bought the goods with others from one Andreis and paid for them under an agreement that any not sold by the end of the season Andreis would take back and pay defendant therefor the invoice price, plus any duty paid. At the end of the season the goods in question remained unsold and defendant demanded of Andreis under the agreement payment therefor of the invoice price, plus the duty paid. Andreis refused and defendant thereupon brought suit against Andreis for the agreed price and recovered judgment for the full amount. Plaintiff claims title to the goods under an alleged purchase from Andreis subsequent to the entry of the above judgment.

• That title to these goods passed to defendant at the time of their delivery to it under the original agreement with Andreis seems clear. On the latter’s refusal to take back the goods and pay the agreed invoice price and duty paid, defendant could rescind and sue for the difference between the agreed price and their value as damages (Sales Act, § 142), or treat the goods as belonging to Andreis and sue to recover the contract price. If it elected to pursue the former course, title remaining in it, plaintiff took nothing by the assignment from Andreis and cannot recover. As matter of fact, it chose the latter, as an examination of the judgment roll introduced in evidence shows. In thus suing it treated Andreis as a vendee and was entitled to a vendor’s lien until the purchase price was paid (Sales Act, § 134), unless it had lost.the right to assert the lien either (1) by an agreement to release it, which must have been a valid agreement for a consideration, or (2) by representations which had "estopped it from asserting a lien, or (3) by acts so inconsistent with the lien as to show an election on its part to waive the lien and rely on another and inconsistent right or remedy. As to any agreement, the only possible evidence was the alleged .statements that the goods were at Mr. Andreis’ disposal. These were without consideration and could not constitute a valid agreement. They could not work- an estoppel, as for that purpose it is essential to show that the representations were made to the person asserting the estoppel, that they were intended to be relied on, and were in fact relied on, and a change of position. There is nothing to show here that they were made to plaintiff, or intended for him, or that he ever heard of, or relied thereon. The suit brought against Andreis was not a waiver of the lien. Sales Act, § 137. It is no more inconsistent with, or a waiver of, a lien than a suit on a note secured by collateral, or on a bond secured by mortgage.

There was, therefore, no evidence of waiver and plaintiff’s request to go to the jury on that question was properly denied, and the direction of a verdict for defendant was proper.

G-uy and Shearn, JJ., concur.

Judgment affirmed, with costs.  