
    Anna Gross, Respondent, v. Michele Ajello, Appellant.
    Second Department,
    April 23, 1909.
    Sale — action to recover as upon an executed contract — failure to show delivery — facts not constituting" delivery — tender — pleading — failure to prove delivery alleged.
    Under an executory contract for the sale of goods the obligation of the buyer to pay and the seller to deliver are mutual and dependent. In the absence of delivery the seller can only recover the purchase price by showing readiness to perform and a tender of performance on his part.
    Although the delivery of an order on a warehouse for goods stored therein is such delivery as will entitle the seller to recover the purchase price, the delivery is nullified where he subsequently removes the goods from the warehouse without notice to the buyer.
    Where no place of delivery is specified in the contract, delivery may be made at the seller’s place of business; but where goods are to be manufactured and delivered in separate lots, the seller, by merely setting aside certain parcels of the goods, does not make delivery.
    Nor is a delivery shown as a matter of law by mere testimony that the seller telephoned to the buyer asking when he would take the rest of the goods, and the buyer made no reply to the inquiry.
    Where a vendee defaults on an executory contract to purchase personal property the vendor has a choice of remedies: (a) To keep the goods and sue for damages for breach of contract; (b) to hold them as bailee of the purchaser and recover the contract price; (c) to sell them as agent of the purchaser and recover the difference between the purchase price and the amount realized on the sale.
    Where the complaint of a seller alleges a sale and delivery so as to set out an executed contract he cannot recover for goods sold but not delivered if the objection be taken at trial.
    To constitute a delivery the goods must at least be placed in the power of the vendee.
    Appeal by the defendant, Michele Ajello, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of May, 1908, upon the verdict of a jury rendered by direction of the court.
    
      George A. Baker, for the appellant.
    
      Jacob J. Lesser, for the respondent.
   Miller, J.:

The plaintiff seeks to recover the purchase price of two lots of merchandise separately contracted to be sold to the defendant. He declares on two causes of action: (1) The sale and delivery of a quantity of tomato paste; (2) the breach of an executory contract to purchase a quantity of chick peas. The evidence in support of the first cause of action tended to show the sale of 100 cases of tomato paste, to be manufactured and delivered in separate lots; that 15 cases were delivered and paid for; and that thereafter 85 cases were set aside by the plaintiff and marked for the defendant, but never actually delivered. The only evidence to show notice of readiness to deliver or a tender of delivery, not stricken from the record, was the following testimony of the plaintiff’s son : I telephoned him (meaning the defendant) when he would take the rest, and I never received any reply of any kind.” The evidence to establish the second cause of action tended to show an executory ' contract of purchase and sale of a part of a shipment, expected later to arrive at the port of New York; that upon the arrival of such shipment the plaintiff mailed to the defendant an order on the warehouse for the quantity of peas agreed to be sold, and thereafter ■—■ how soon docs not appear — removed them therefrom to her own building without notifying the defendant.

There can be no doubt that both contracts were executory. The obligation of the defendant to pay and of the plaintiff to deliver were mutual and dependent. In the absence of delivery the plaintiff could only recover the purchase price by showing readiness to perform and a tender of performance on her part. (Dunham v. Pettee, 8 N. Y. 508; Des Arts v. Leggett, 16 id. 582; Dustan v. McAndrew, 44 id. 72 ; Mason v. Decker, 72 id. 595.) The delivery of the order on the warehouse for the peas would have justified a recovery of the purchase price (Salmon v. Brandmeier, 104 App. Div. 69 ; Horst v. Montauk Brewing Co., 118 id. 300), but for the fact that it was nullified by the removal of the peas to the plaintiff’s building without notice to the defendant. In the absence of other evidence then to show delivery or tender, it was error to direct a verdict for the purchase price of the peas. No place of delivery of the tomato paste having been specified, the plaintiff’s place of business was doubtless the place of delivery (Gray v. Walton, 107 N. Y. 254; Bliss Co. v. U. S. Incandescent Gas Light Co., 149 id. 300); but merely setting aside the cases, when prepared, did not constitute a delivery ; and in view of the fact that the goods were to be manufactured and delivered in separate lots the inquiry made by the plaintiff’s son, as testified to by him, did not amount to a notice that the goods were ready for delivery or to a tender of delivery, at least as matter of law.

But aside from the foregoing, there is still a serious obstacle to the affirmance of this j'udgment. The defendant rested upon the plaintiff’s case, insisting that the plaintiff had failed to establish a sale and delivery as pleaded. There is no doubt that where the vendee has defaulted on an executory contract to purchase personal property, the vendor has a choice of remedies, namely: (a) To keep the goods and sue for damages for breach of contract; (b) to hold them as bailee of the purchaser and recover the contract price; (c) to sell them as agent of the purchaser and recover the difference between the purchase price and the amount realized on such sale. (Dustan v. McAndrew, supra; Mason v. Decker, supra.) But the plaintiff in this case pleaded an executed, not an executory, com tract; and the substantive rules of law hereinbefore referred to have nothing to do with the question of pleading. The plaintiff can only recover the purchase price on the theory that the goods belong to the defendant; but this judgment conclusively establishes the delivery, and could be pleaded as an estoppel ip. a suit to recover possession of them. At common law the plaintiff could only recover on a declaration for goods sold and delivered by showing an actual delivery. (Outwater v. Dodge, 7 Cow. 85.) In the cases herein-before cited, which permitted a recovery of the purchase price though there was no delivery, no question of pleading was involved; and no reason can be suggested for allowing a recovery for goods sold, but not delivered, on an averment of a sale and delivery, where the point is properly taken on the trial. To constitute a delivery the goods must at least be placed in the power of the vendee. The case of Butler Brothers v. Hirzel (87 App. Div. 462; affd., 181 N. Y. 520) upon first examination may seem opposed to this view, but it will be seen that in that case the court recognized the fact that the cause of action alleged was not established, but in view of certain averments of the complaint and of the course of the trial deemed the variance immaterial, as it did not appear that the defendants were misled. In this case the defendant took the point and rested upon it. He had alleged in his answer a rescission of the contracts; and on a motion for a new trial on the ground of newly-discovered evidence, the appeal from the order denying which was argued herewith, he presented affidavits relative to that issue which would have justified the granting of a new trial but for the fact that his counsel intentionally refrained from tendering on the trial the issue to which the alleged newly-discovered evidence related. That fact, however, emphasizes the right of the defendant to rely on this appeal upon the point which he distinctly made and stood upon at the trial.

The judgment must be reversed.

Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide the event.  