Butler v. Hirzel

This action was brought to recover for goods sold and delivered. On the trial counsel agreed that the only question to be decided was whether, as a matter of law, there was a delivery of the goods in question, and each of them moved for a direction of a verdict, and the court reserved decision. It appears from the evidence in the case that an order in writing was given by defendants to the plaintiff “to ship on board the steamship Allianca, pier 57, North river, on or before the 6th day of October, 1900, goods marked and numbered as follows,” etc. The goods designated on the order blanks were selected at defendants’ place of business from a catalogue issued by plaintiff. The evidence is, and there is no dispute concerning it, that on October 6, 1900, the merchandise, packed in cases, was carted by plaintiff’s carman to the pier from which the steamship Allianca ships, and its receipt was there refused by the steamship company under instructions from defendants, and these cases of merchandise were thereupon carted back to plaintiff’s place of business by plaintiff’s carman. Plaintiff claims that the offer of the goods at the steamship dock constituted a delivery sufficient for the maintenance of this action. The complaint is not founded upon a contract of purchase and sale, but is strictly in conformity with the common-law action of assumpsit on the count of goods sold and de

“Here was no actual delivery and acceptance by the defendant below. The contract was executory, and he refused to receive. It was scarcely a case of goods bargained and sold. The count should, I apprehend, have been special, for refusing to accept. All the cases on this point were considered in Atkinson v. Bell, 2 Man. & R. 292, Id., 8 Barn. & O. 277, and the subject entirely exhausted. Indeed, the case itself is directly against the plaintiff in error.”

More was done in that case to effect a delivery than in the case at bar. There the goods were left at the designated place of delivery. In the case at bar this was not attempted. The goods never left the possession of the plaintiff. They remained in the possession of plaintiff’s carman, and were by him taken back to plaintiff’s place of business, where they have since remained. Plaintiff has never lost dominion over them. The rule of law laid down in the case cited does not seem to have been questioned, so far as I have been able to ascertain, and none of the authorities called to my attention by counsel lays down a different rule. The case has not been overruled, . but was cited with approval in Rodgers v. Phillips, 40 N. Y. 530 , but on another point. The cases to which I am referred by counsel are not in point. While some of them treat of the subject of delivery, it is in other connections. As stated in the American note to Benj. Sales (7th Ed.) p. 718: “The word ‘delivery’ is unfortunately used in various senses, and to express various shades of meaning,”—and the enumeration of them then follows. My attention is called to some authorities, such as Mason v. Decker, 72 N. Y. 595 , 28 Am. Rep. 190 , and Mackie v. Egan, 6 Misc. Rep. 95 , 26 N. Y. Supp. 13 , where it has been “held that a tender of delivery in conformity with the agreement of sale is sufficient to base an action for the purchase price. This is not an action brought to recover the agreed price of merchandise under an agreement of purchase and sale. It may be that had the action been brought in that form plaintiff would have been entitled to judgment. The opportunity to change the form of the action was afforded to plaintiff on the trial, but counsel chose to pro

Complaint dismissed, with costs.