Misc.]

City Court of New York, December, 1921.

quantity of cotton linters, but submitted the question of damages to the jury. The contract was for the sale and delivery of 500 bales of cotton linters. It fixed no time for delivery except that it provided that the goods were to be sent in shipments of not less than sixty bales at a time, and provided further that plaintiff (the buyer) had the right to free storage of the goods to a date specified. The breach was an anticipatory one in that only one installment of about sixty bales. had been delivered when, on August 10, 1921, the defendant wrote to plaintiff repudiating the contract. The question arises as to what is the proper time as of when damage is to be measured under these circumstances. This question was long the subject of much dispute at common law. In this state there was early dictum, if not specific authority, holding that when such anticipatory breach occurred it was as of the time of the breach and not of performance that damages were to be fixed. Masterson v. Mayor of Brooklyn, 7 Hill, 61. This case contained a strong dissenting opinion to the effect that the market at the time of performance was to be the measure. The more recent authorities in this state were apparently inclined to follow the view expressed by the dissenting justice. Windmuller v. Pope, 107 N. Y. 674; Todd v. Gamble, 148 id. 382; 2 Sedg. Dam. (9th ed.) § 636-a, p. 1243, § 636-1, p. 1266. I feel, however, that, whatever may have been the rule at common law, the measure of damage is now fixed by the terms of the Personal Property Law. This statute covers anticipatory as well as other breaches. Goldfarb v. Campe Corp., 99 Misc. Rep. 475. Section 148 of the Personal Property Law provides that the measure of damage is the difference between the contract price and the market price of the goods at the time or times they ought to have been delivered, or if no time was fixed, then at the time of the refusal to deliver. Action may be brought before

City Court of New York, December, 1921. [Vol. 117

the time fixed for performance may have expired. Windmuller v. Pope, supra. Only one action may be brought, and all damages, existing and prospective, must be claimed and may be recovered in such action. Pakas v. Hollingshead, 184 N. Y. 211. The novel feature in the instant case arises in considering the effect of the statutory provision that where no time is fixed for performance, then the market at the time of the breach is to govern, in connection with the wellsettled rule of common law that in the absence of a time fixed by the contract the law fixes a reasonable time after the making of the contract as the time for performance. Assuming, as in the case at bar, that it might be held or found by the jury from the evidence that a reasonable time for deliveries would be some day subsequent to the breach, at which time the market price of the commodity might be far different from that on the date of the breach, I am constrained to hold, nevertheless, that under the plain language of the statute the present rule in this state is that the question of reasonable time of performance is immaterial, and the damage must be assessed as of the date of breach in the absence of a provision in the contract fixing the time of performance. In the case at bar the question was submitted to the jury as to whether there was any agreement as to time of performance reached by parol, although the writings were silent on this point. They were instructed in the main charge that if they found there was such a time fixed, then the market conditions as of that time were to be used as the proper criterion. They were also instructed that if they found no time fixed, then they might determine what was a reasonable time for performance and measure damages as of that date, but later, upon request, they were advised if they found no time of delivery was fixed, then the time of breach was the

Misc.] Appellate Term, First Department, December, 1921.

time to be used in computation. The latter, which was the proper rule, was the one apparently followed by the jury. There was little contradiction in the evidence as to the fact that at the time of the breach, and in fact for almost a month thereafter, the market price of cotton linters was about the same as the contract rate. The jury were entitled to find no substantial damage if they measured the same as of the time of the breach. As a finding by them that there was no time agreed upon for delivery would not be contrary to the weight of the evidence, the finding of nominal damages cannot be disturbed.

Motion denied.

COLUMBIA MILLS, INC., Appellant, v. MACHENBACH IMPORTING CO., Respondent.

(Supreme Court, Appellate Term, First Department, November Term Filed December, 1921.)

Sales - goods to be manufactured — loss in transit - when delivery to carrier passes title allowance by seller of freight charges paid by buyer immaterial - Personal Property Law, § 100, rule 5.

In an action to recover the price of goods to be manufactured but lost in transit it appeared that plaintiff shipped the goods to defendant's place of business under a straight bill of lading. It further appeared that plaintiff, by the usual course of business between the parties, had authority, even if not expressly given at the time of the making of the contract, to deliver the goods to a carrier for transmission. Held, that defendant must be deemed to have impliedly consented to plaintiff's appropriation of the goods to the contract upon the delivery of the same to the carrier unless from other circumstances a contrary intent could be inferred.

A contention that such contrary intent was to be presumed by reason of the fact that though it was the custom of the parties that the defendant should in the first instance pay the

Appellate Term, First Department, December, 1921. [Vol. 117

freight charges, it was permitted to offset such charges against the purchase price, was untenable.

The order for the goods was given upon the same terms as previous orders, the invariable course of dealing being that plaintiff shipped the goods without paying the freight and deducted the charges, which defendant paid, from the agreed purchase price of the goods. Held, that the carrier was the agent of the defendant and that delivery to it of the goods passed the property therein to it.

The rules laid down in section 100 of the Personal Property Law made no changes in the law where under the agreement of the parties the buyer was to pay transportation charges even though thereafter he could deduct such payment from the purchase price, and the contention that under rule 5 of said section the carrier is intended to be the agent of the seller and not of the buyer is supported neither by reason nor authority, and cannot be sustained.

The rule that title to goods which were not in esse at the time the contract was made, does not pass to the buyer until he has had an opportunity to inspect them, held not to apply.

The judgment entered in favor of defendant based upon a holding of the trial justice that the goods were never appropriated to the contract with the consent of defendant, and that the property in the goods and the risk of loss did not pass to it upon delivery to the carrier, reversed and a new trial ordered to the end that maybe evidence tending to show more clearly the actual agreement of the parties will be given.

APPEAL by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, in favor of the defendant.

Otterbourg, Steindler & Houston (Charles Houston, of counsel), for appellant.

David Harrison, for respondent.

LEHMAN, J. The plaintiff has brought an action to recover the agreed price of certain goods which it claims it sold and delivered to the defendant. The defendant does not deny that it agreed to buy the goods, which were to be manufactured by the plaintiff,

Misc.] Appellate Term, First Department, December, 1921.

but it is undisputed that it never received the goods. It appears, however, that the plaintiff shipped the goods to the defendant's place of business in Yonkers, N. Y., under a straight bill of lading, and apparently they were lost in transit. Both parties concede that the case presents only a single question of law, to wit, did the property pass to the defendant at the time when the plaintiff delivered the goods to the carrier?

The record does not clearly show whether any statement was made at the time the order was given in regard to whether the goods were to be delivered in Yonkers or whether they were to be shipped by carrier and the charges paid by the defendant. It appears, however, that the parties had been dealing together for some time, and the defendant had given the plaintiff a number of similar orders and it is undisputed that the present order was given upon the same terms as the previous orders. It is further undisputed that the plaintiff had shipped goods on the previous orders to the defendant by railroad without prepaying the freight; that the defendant had paid the freight itself on such goods, and that thereafter the plaintiff had deducted the charges paid by the defendant from the agreed price. Apparently this was the invariable course of dealing between the parties, except in one instance where plaintiff shipped goods by parcel post and had charged the defendant with the cost of carriage. Upon these facts the trial justice has decided that the goods were never appropriated to the contract with the consent of the defendant, and that the property in the goods and the risk of loss did not pass to it, upon delivery to the carrier.

The defendant seeks to sustain the judgment upon the ground that it never had an opportunity to inspect the goods, and that no title passed to it until such opportunity was given. The ordinary rule that title