
    Henry E. Gourd, Respondent, v. Thomas Healy, Appellant.
    First Department,
    December 31, 1914.
    Sale — aetiojn on executory contract of sale to recover purchase price — evidence — erroneous charge as to effect of verdict.
    In an action on an executory contract to recover the purchase price of wines the plaintiff alleged that the date of payment was by mutual agreement postponed; that he was at all times ready and willing to • deliver the wines to the defendant, who has refused to receive them; that he has duly demanded payment, which has been refused, and that since the commencement of the action he “has kept good and repeated said tender of due delivery of said wines; but defendant has at all times refused to accept said vines or pay for same.” It appeared that the plaintiff was selling the wines on commission as agent of the owner. Although the plaintiff was permitted to show that he was ready and willing at all times to deliver the wines at the place of delivery, the defendant was precluded from cross-examining him with respect to these matters to show who owned the wines at the time the contract was made, and that the plaintiff had not seen the wines at that time, and they were then in a warehouse in France.
    Held, on all the evidence, that it was reversible error for the court to instruct the jury that, in rendering a verdict for the plaintiff, “you merely compel the defendant to carry out a contract which you have found has been made and should have been performed. The obligation of the plaintiff to deliver to the defendant the goods in question in New York will continue unchanged and undiminished; and any judgment which would be entered on such a verdict would not be payable until the plaintiff were ready, able and willing to turn over to the defendant the goods in question.”
    On a new trial the court should receive all evidence offered with respect to the ownership and location of the wines at the time the contract was made, and subsequently.
    Appeal by the defendant, Thomas Healy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19 th day of March, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of December, 1913, denying defendant’s motion for a new trial made upon the minutes.
    
      M. E. Kelley [C. S. Lorentzen with him on the brief], for the appellant.
    
      Frank D. Wynn [Robert Louis Hoguet with him on the brief], for the respondent.
   Laughlin, J.:

This is an action on an executory contract to recover the purchase price of fifty cases of wine, which the plaintiff alleges he sold to the defendant on the 21st day of May, 1906, at the agreed price of $740, which the defendant agreed to pay on the 1st day of March, 1907. It is alleged that the date of payment was by mutual agreement postponed to the 1st day of October, 1907, on the promise of the defendant to pay interest thereon from the first date fixed for payment. The plaintiff also alleges that he was at all times since the 21st day of May, 1906, ready and willing to deliver the wine to the defendant, and “stands ready and willing now or in the future to deliver the same; but that the defendant has refused to receive said wine; ” and after the 1st day of October, 1907, duly demanded payment but that the entire amount remains unpaid; and that since the commencement of the action-plaintiff “has kept good and repeated said tender of due delivery of said wines; but defendant has at all times refused to accept said wines or pay for same.”

The case has been tried three times. On the first trial a verdict was directed for the plaintiff for the full amount claimed, but the judgment was reversed and a new trial granted by this court on the ground that title had not passed and that plaintiff could not make a valid tender of delivery for the reason that the wine had not been imported at the time of the commencement of the action but was then intermingled with other wine in certain undisclosed wine cellars in Bordeaux, France, and had never been identified or segregated from the general stock of wine, and delivery on the dock in New York, freight and duty paid, was required by the agreement. (Gourd v. Healy, 137 App. Div. 323.) On the second trial the complaint was dismissed at the close of the plaintiff’s case, and the judgment was affirmed by this court on the opinion rendered on the first appeal (Gourd v. Healy, 143 App. Div. 928); but the Court of Appeals reversed and granted a new trial, on the ground that there was a question of fact which should have been submitted to the jury with respect to whether the time for defendant’s performance had been definitely postponed until October, 1907, or indefinitely postponed so that he had a reasonable time within which to perform. (Gourd v. Healy, 206 N. Y. 423.) On the third trial the question which was the basis of the reversal by the Court of Appeals was submitted to the jury, under instructions to the effect that if the time for defendant’s performance was definitely postponed until October, 1907, the plaintiff was entitled to recover, and if the postponement was indefinite and a reasonable time for performance by the defendant had expired before the commencement of the action, the plaintiff was entitied to recover. A general verdict was rendered in favor of the plaintiff for the amount demanded.

In the record which the Court of Appeals reviewed, and on which this court held that the plaintiff was not entitled to recover, there was no evidence of a tender of delivery of the wine. The Court of Appeals held, in effect, that the evidence tended to show an agreement on the part of the defendant to pay for the wine without delivery and delay the delivery until such time as the defendant required it. The record before the Court of Appeals contained a letter from the defendant to the plaintiff under date of November 8, 1907, purporting to be an answer to a letter from the plaintiff to the defendant of November 7, 1907, which was not in that record. That court inferred from the defendant’s reply that the plaintiff’s letter called upon the defendant to take the wine and that the defendant requested further time. The letter of November seventh is in the record now and it is not of the purport which the Court of Appeals inferred. It merely called upon the defendant to pay for the -wine in accordance with his overdue promise. The Court of Appeals, however, did not, I think, intend to hold that it was not incumbent upon the plaintiff to tender a delivery of the wine in accordance with the contract unless the defendant waived tender of delivery. The opinion proceeds on the assumption that there was a tender of delivery of the wine by offers to deliver it, notwithstanding the fact that it was in France, and that the defendant, by stating that he was not ready to receive and pay for it and by asking for delay waived a formal tender on the dock in New York in accordance with the contract. It then appeared that after the commencement of the action the wine was shipped to this country,” and evidence offered to show that it was shipped to New York and that it was consigned to the defendant was excluded and exceptions were taken to the rulings. Other evidence offered to show where the wine was and that the plaintiff was ready and willing to deliver it to the defendant was also excluded and an exception taken. These rulings are not discussed in the opinion of the Court of Appeals, but that court in deciding the appeal appears to have assumed that the wine was in the possession or under the control of the plaintiff, for it is stated in the opinion that the legal effect was the same “ as though the wine had been in the cellar of the plaintiff from the beginning.”

The learned counsel for the appellant contends that the Court of Appeals overlooked the fact that the plaintiff did not own the wine at the time he agreed to sell it to the defendant and that he was merely acting as a commission agent, and also overlooked the fact that the contract provided for the delivery of the wine on the dock at New York. The record before the Court of Appeals showed that the wine was in the wine cellars of Schroeder & Schyler, Bordeaux, France, at the time the contract was made, and constituted a part of a large quantity of wine, and that it was owned by the plaintiff. The record now before the court differs somewhat from that- presented to the Court of Appeals. It now appears that the plaintiff did not own the wine at the time he sold it to the defendant, and that he was selling it on commission as agent of the owner. The court permitted the plaintiff to show that he was ready and willing at all times since the making of the contract to deliver the wine on the dock at New York and was ready and willing-to deliver it at the time of the trial on receiving instructions from the defendant, and was ready so to deliver it immediately prior to the commencement of the action if he had been given shipping instructions. The defendant, however, was precluded from cross-examining the plaintiff with respect to these matters to show who owned the wine at the time the contract was made, and that the plaintiff had not seen the wine at that time, and that it was then in a warehouse in Bordeaux, France. The contract required the plaintiff to deliver the wine with freight and duty paid on the dock at New York. It is to be inferred that the wine was shipped to some port in this country, for it appears that the duty was paid by the plaintiff, but nothing further appears with respect thereto. Counsel for the plaintiff, notwithstanding the fact that by objections interposed, he precluded counsel for the defendant from ascertaining on the cross-examination of the plaintiff where the wine was at the time of the third trial,—requested the court to instruct the' jury that in rendering a verdict for the plaintiff “you merely compel the defendant to carry out a contract which you have found has been made and should have been performed.' The obligation of the plaintiff to deliver to the defendant the goods in question in New York will continue unchanged and undiminished; and any judgment which would be entered on such a verdict would not be payable until the plaintiff were ready, able and willing to turn over to the defendant the goods in question,” and the court so charged. Counsel for the defendant duly excepted on the ground that there was no evidence to justify the charge. We are of opinion that that instruction constitutes prejudicial error and requires a reversal. There was no occasion for giving the jury any instruction with respect to the effect of bheir verdict. There were questions of fact submitted to them, and it is quite likely that this instruction led them to believe that it was not very important how they determined such questions, and if the law were as charged by the court it would not have been, but such is not the law, and, therefore, we think the defendant was prejudiced by the instruction. If the title to the wine had not already passed to the defendant it doubtless would pass on the satisfaction of the recovery in this action, provided the wine is in existence; but enforcement of the judgment herein would not depend upon the delivery of the wine or the tender of delivery thereof. The defendant after satisfying the judgment will doubtless have a legal remedy to obtain the wine if it can be found or damages, but the plaintiff would not be required, as a condition of enforcing any judgment recovered herein, to again tender delivery of the wine.

We think that on the new trial the court should receive all evidence offered with respect to the ownership of the wine at the time the contract w'as made, and where it was then, and where it has been since and is at the time of the trial, and what has been done with it and what either party has done toward performance, to the end that no further trial may become necessary.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Clarke, McLaughlin, Scott and Hotchkiss, JJ., concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. Order to be settled on notice.  