KFhJ Cornell University Law Library. THE QIFT OF Digitized by Microsoft® CORNELL UNWERSnV LIBjiARV 3 1924 051 675 274 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® THE SALE OF GOODS IN NEW YORK A COMMENTARY UPON THE SALES ACT OF 1911 AND RELATED STATUTES BY GEORGE GLEASON BOGERT OP THE NEW YORK STATE BAR AND OP THE FACULTY OP LAW OP CORNELL UNIVERSITY EDWARD THOMPSON COMPANY NORTHPOET, LONG ISLAND, NEW YORK 1912 Digitized by Microsoft® /i. COPYRIGHT 1912 BY EDWARD THOMPSON COMPANT Digitized by Microsoft® PREFACE. 'T^HE legislature of 1911 codified the law of the Sale -*- of Goods in New York by the adoption of the Uni- form Sales Act, recommended by the Commissioners on Uniform State Laws and now in force in nine states. Numerous and important changes in the law of New York are effected by this statute. A period of several years will doubtless elapse before the act will receive any con- siderable construction by the courts. During this interim between passage and established construction, it may be useful to practitioners and students to have placed along- side the respective sections of the law, the common law decisions in this state upon the same subject, the state- ments of the draftsman of the act regarding its intended effect, the experience of the courts outside New York in its interpretation, and explanatory notes. Such is the object of this book. The text of the book (in heavy face type) consists ex- clusively of the sections of the Sales Act. Following each section have been placed citations, quotations and notes upon the subject of the section. Section 1 of the Uniform Act has been made section 82 of the New York Personal Property Law, and the other sections of the Uniform Act take corresponding numbers. The title and chapter headings are not part of the statute as enacted by the New York legislature, but have been inserted by the author, and follow largely the outline suggested by the Commissioners on Uniform State Laws. (iii) Digitized by Microsoft® iv PREFACE. It has been the effort of the author to collect under each section the leading cases in this state on the subject there treated, and, where possible, to show the pre-existing rule by a short quotation. If the act has modified the common law, references have frequently been given to decisions of other states adjudicating the rule of the statute. The extracts from the work upon Sales by the draftsman of the Sales Act, Professor Samuel Williston of the Har- vard Law School, are made with his consent, and, in connection with the notes published by the Commissioners on Uniform State Laws, which are also inserted herein, will be useful aids to the understanding of the act. The English Sale of Goods Act, the model from which the American Sales Act was drafted, has been in force in England since 1894. The statutes are so similar that it is believed that material aid in the construction of the American act may be obtained from the English decisions, and it is for that reason that the English act is printed in the appendix and brief digests given in the body of the book of all pertinent English cases in the higher courts which consider the Sale of Goods Act. The American Sales Act reached its final form and was recommended to the legislatures for adoption in 1906. In 1907 two states (Connecticut and New Jersey) and one territory (Arizona) accepted the law, and, from time to time thereafter, six other states, including New York, have adopted it. There are thus a small number of de- cisions by American courts in construction of the Sales Act, and these are collected under the appropriate sections. The legislature incorporated the Sales Act into the Personal Property Law. It has been thought of use to place in the appendix of this book the full text of the Personal Property Law, with the exception of a few sec- tions having no connection with the subject of Sales. The Digitized by Microsoft® PREFACE. V Uniform Bills of Lading Act of 1911 is included in the Personal Prc^rty Law and is to be found in the appendix. The author wishes to express his gratitude to Professor Williston for permission granted to make extracts from his valuable book on Sales, and also to acknowledge t^e faithful and efficient service of Mr. Walter J. Donovan in the collection of cases and clerical work. George G. Bogert. Ithaca, New York. Digitized by Microsoft® Digitized by Microsoft® TABLE OF CONTENTS. PART I. FORMATION OF THE CONTRACT. CHAPTER I. DEFINITIONS AND GENERAL PRINCIPLES. PAGE i 82. Contracts to sell and sales 1 CHAPTER II. CAPACITY OF THE PARTIES. 83. Capacity ; liability for necessaries 5 CHAPTER III. FORMALITIES OF THE CONTRACT. 84. Form of contract or sale 9 85. Statute of frauds 10 CHAPTER IV. SUBJECT-MATTER OF THE CONTRACT. 86. Existing and future goods 30 87. Undivided shares 34 88. Destruction of goods sold 37 89. Destruction of goods contracted to be sold 39 (vii) Digitized by Microsoft® viii TABLE OF CONTENTS, CHAPTER V. THE PRICE. PAGE § 90. Definition and ascertainment of price 42 91. Sale at a valuation - 46 CHAPTER VI. CONDITIONS AND WARRANTIES. i 92. Effect of conditions 49 93. Definition of express warranty 54 94. Implied warranties of title S9 95. Implied warranties in sale by description 65 96. Implied warranties of quality 68 97. Implied warranties in sale by sample 85 PART IL TRANSFER OF THE PROPERTY. CHAPTER Vn. TRANSFER OF THE PROPERTY AS BETWEEN BUYER AND SELLER. 5 98. No property passes until goods are ascertained 91 99. Property in specific goods passes when parties so intend 93 100. Rules for ascertaining intention 95 101. Reservation of right of possession or property when goods are shipped 108 102. Sale by auction 115 103. Risk of loss ,119 Digitized by Microsoft® TABLE OF CONTENTS. CHAPTER VIII. TRANSFER OF PROPERTY AS BETWEEN BUYER AND THIRD PERSON. PAGE 104. Sale by a person not the owner 124 105. Sale by one having a voidable title 128 106. Sale by seller in possession of goods already sold 132 107. Creditor's rights against sold goods 136 CHAPTER IX. DOCUMENTS OF TITLE, 108. Definition of negotiable documents of title 140 109. Negotiation of negotiable documents of title by delivery 143 110. Negotiation of negotiable documents of title by indorse- ment 145 111. Negotiable documents of title marked "not negotiable" . . 147 112. Transfer of non-negotiable documents ISO 113. Who may negotiate a document 152 114. Rights of person to whom document has been negotiated 155 lis. Rights of person to whom document has been transferred 161 116. Transfer of negotiable document without indorsement . . 164 117. Warranties on sale of document 165 118. Indorser not a guarantor _ 167 119. When negotiation not impaired by fraud, mistake or duress 168 120. Attachment or levy upon goods for which a negotiable document has been issued 170 121. Creditor's remedies to reach negotiable documents 173 Digitized by Microsoft® X TABLE OF CONTENTS. PART III. PERFORMANCE OF THE CONTRACT. CHAPTER X. CONTRACTUAL OBLIGATIONS OF THE PARTIES. PAGE S 122. Seller must deliver and buyer accept goods 174 123. Delivery and payment are concurrent conditions 175 124. Place, time and manner of delivery 178 125. Delivery of wrong quantity 183 126. Delivery in installments 189 127. Delivery to a carrier on behalf of the buyer 192 128. Right to examine the goods 195 129. What constitutes acceptance 199 130. Acceptance does not bar action for damages 201 131. Buyer is not bound to return goods wrongfully delivered 207 132. Buyer's liability for failing to accept delivery 209 PART IV. RIGHTS OF UNPAID SELLER AGAINST THE GOODS. CHAPTER XL UNPAID SELLER'S LIEN. 133. Definition of unpaid seller 211 134. Remedies of an unpaid seller 214 135. When right of lien may be exercised 216 136. Lien after part delivery 219 137. When lien is lost 220 Digitized by Microsoft® TABLE OF CONTENTS. CHAPTER XII. STOPPAGE IN TRANSITU. PAGE 138. Seller may stop goods on buyer's insolvency 222 139. When goods are in transit 224 140. Ways of exercising the right to stop 231 CHAPTER XIII. RESALE AND RESCISSION. 141. When and how resale may be made 233 142. When and how the seller may rescind the sale 238 143. Effect of sale of goods subject to lien or stoppage in tran- situ 240 PART V. ACTIONS FOR BREACH OF THE CONTRACT. CHAPTER XIV. SELLER'S REMEDIES. i 144. Action for the price 242 145. Action for damages for nonacceptance of the goods .... 24" 146. When seller may rescind contract or sale 25" Digitized by Microsoft® xii TABLE OF CONTENTS. CHAPTER XV. BUYER'S REMEDIES. PAGE § 147. Action for converting or detaining goods 35S 148. Action for failing to deliver goods 257 149. Specific performance 261 150. Remedies for breach of warranty 263 151. Interest and special damages 275 PART VL MISCELLANEOUS PROVISIONS. CHAPTER XVI. INTERPRETATION OF THE ACT. 152. Variation of implied obligations 276 153. Rights may be enforced by action 278 154. Rule for cases not provided for by this article 279 155. Provisions not applicable to mortgages 281 156. Definitions 282 157. Article does not apply to existing sales or contracts to sell 286 158. No repeal of uniform warehouse receipt laws 287 Laws repealed by Sales Act 287 When Sales Act took effect 288 APPENDIX. Personal Property Law of the State of New York 289 English Sale of Goods Act 330 Index 359 Digitized by Microsoft® TABLE OF CASES CITED. [Cases printed in black letter type are New York cases be- lieved to be rendered obsolete, modified or otherwise affected by the Sales Act. The page at which the supposed change is dis- cussed is also indicated by heavy faced type. References are to pages.] Abbott V. Wolsey, 72 L. T. (n. s.) 581 13 Abel V. Murphy, 43 Misc. 648 67, 270 Abe Stein Co. v. Robertson, 167 N. Y. 101 31, S3 A. B. Farquhar Co. v. New River Mineral Co. 87 A. D. 329 188 Ackerman v. Redfield, 9 Hun 378 160 Ackerman v. Rubens, 167 N. Y. 405.. 118, 237, 239, 245, 251 Adams v. Roscoe Lumber Co., 159 N. Y. 176 100 A. F. Englehart Co. v. Ben- jamin, 5 A. D. 475 221 Ainis V. Ayres, 62 Hun 376 114, 212, 227 Ajello V. Worsley, 77 L. T. (n. s.) 783 30 Akin V. Meeker, 78 Hun 387; aff'd 149 N. Y. 610 60, 63 Alden v. Hart, 161 Mass. 576 195, 208 Aldrich v. Bailey, 132 N. Y. 85 7 Aldrich v. Pyatt, 64 Barb. 391 16 Alexander v. Kellner, 131 A. D. 809 14 Allard v. Greasert, 61 N. Y. 1 16, 17 Allen V. Hammond, 11 Pet- ers 63 38 Allen v. Lardner, 78 Hun 603 8 Allen V. Williams, 12 Pick. (Mass.) 297 144 Allyn V. Burns, 37 Ind. App. 223 104 Almy V. Simonson, 52 Hun 535 251 Altho.use V. Alvord, 28 Misc. 577 45 Altshul V. Koven, 94 N. Y. S. 558 200 American Art Metal Novel- ty Co. V. Bosselman, 91 N. Y. S. 722 269 American Broom Co. v. Ad- dickes, 19 Misc. 36 191 American Case Co. v. Gris- wold, 68 Misc. 379 206 Xlll Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] American Forcite Powder Mfg. Co. V. Brady, 4 A. D. 95 76 American Home Sav. Bank Co. V. Guardian Trust Co., 210 Pa. St. 320 83 American Seeding Mach. Co. V. Stearns, 109 A. D. 192 3 American Soda Fountain Co. V. Vaughn, 69 N. J. L. 582 122 American Sugar Refining Co. V. Fancher, 145 N. Y. 552 129 American Writing Mach. Co. V. Bushnell, 9 Misc. 462 56 Ames V. Jones, n N. Y. 614 87 Ames V. Quimby, 96 U. S. 324 43 Anderson v. Cullen, 16 Daly 15 6 Anderson v. Nicholas, 28 N. Y. 600 131 Anderson v. Read, 106 N. Y. 333 3, 91 Andrew v. Dieterich, 14 Wend. 31 102 Andrew v. Newcomb, 32 N. Y. 417 32 Andrews v. Cox, 42 Ark. 373 32 Andrews v. Durant, 11 N. Y. 35 101 Archer v. Hubbell, 4 Wend. 514 138 Argus Co., in re, 138 N. Y. 557 262 Argus Co. V. Albany, 55 N. Y. 495 19 Arkush v. Hanan, 60 Hun 518 206 Armour v. Michigan Cent. R. Co., 65 N. Y. Ill .... 158 Armstrong v. Cushney, 43 Barb. 340 18 Armstrong v. Heide, 47 Misc. 609 175 Armstrong v. Percy, 5 Wend. 535 273 Artcher v. Zeh, 5 Hill 200 18, 19 Ash V. Putnam, 1 Hill 302. . 129 Asher v. Deyoe, 11 Hun 531 284 Ashworth v. Wells, 78 L. T. (n. s.) 136 267 Atkinson v. Truesdell, 127 N. Y. 230 ... 22, 181, 245, 276 Austin V. Dye, 46 N. Y. 500 127 Austin V. Hartwig, 49 N. Y. Super. Ct. 256 237 Austin V. Sawyer, 9 Cowen 39 14 Automatic Time Table Ad- vertising Co. V. Auto- matic Time Table Co., 208 Mass. 252 ... 41, 101, 121 Auto Spring Repair Co. v. Mutual Auto Accessories Co., 72 Misc. 402 191, 244 Avery v. Willson, 81 N. Y. 341 186. 202 Babcock v. Bonnell, 80 N. Y. 244 223, 235, 236, 239 Bach V. Levy, 101 N. Y. 511 67, 269, 273 Bailey v. Hudson River R. Co., 49 N. Y. 70 .... 112, 156 Bailey v. Ogden, 3 Johns. 398 20, 27 Digitized by Microsoft® Baker v. Bourcicault, 1 Daly 23 105, 106 Baker v. Drake, S3 N. Y. 211 2S6 Baker v. Higgins, 21 N. Y. 397 186 Baker v. Lever, 67 N. Y. 304 130 Baldey v. Parker, 2 B. & C. 37 16 Baldwin v. Van Deusen, 37 N. Y. 487 84 Ball V. Liney, 48 N. Y. 6 . . . 159 Ballard v. Burgett, 40 N. Y. 314 121, 127 Ballentine v. Robinson, 46 Pa. St. 177 246 Barasch v. Kramer, 62 Misc. 475 62 Barber Paving Co. v. Stand- ard Asphalt Co., 39 A. D. 617 3 Barker v. Bushnell, 75 111. 220 256 Barnard v. Campbell, 55 N. Y. 456 126, 146, 152 Barnes v. Brown, 130 N. Y. 372 259 Barnes v. Denslow, 9 N. Y. S. 53 191 Barnes v. Hathaway, 66 Barb. 452 8 Barney v. Brown, 2 Vt. 374, 182 Barrow v. Paxton, S Johns. 258 ....: 138 Bartlett v. Hoppock, 34 N. Y. 118 57, 75 Bascom v. Danville Stove Co., 182 Pa. St. 427 .... 200 Bass V. White, 65 N. Y. 565 176 TABLE OF CASES CITED. [References are to Pages.] Bassett v. Spofford, 45 N. Y. 387 125 Batavia Bank v. New York R. Co., 106 N. Y. 195.. 149, 158 Batavia First Nat. Bank v. Ege, 109 N. Y. 120 151 Bates v. Conkling, 10 Wend. 389 180 Bates V. Coster, 1 Hun 400 24 Bates V. Fish Bros. Wagon Co., SO A. D. 38; aff'd 169 N. Y. 587 270 Bates V. Smith, 83 Mich. 347 38 Battle Creek Valley Bank v. Madison First Nat. Bank, 62 Neb. 825 31 Baum v. Stone, 12 Weekly Digest, 353 6 Baumann v. Mosely, 73 Hun 40, aff'd 145 N. Y. 620 17 Baylis v. Weibezahl, 42 Misc. 178 77 Bayne v. Hard, 71 A. D. 251; aff'd 174 N. Y. 534 101 Beardsley v. Hotchkiss, 96 N. Y. 201 6 Beavers v. Lane, 13 N. Y. Super Ct. 232 130 Beck V. Sheldon, 48 N. Y. 365 83 Becker v. Hallgarten, 86 N. Y. 167 144, 212, 226, 241 Bedell v. Kennedy, 109 N. Y. 153 45 Bedford v. Hoi-Tan Co. 143 A. D. 372 203, 272 Beirne v. Dord, 5 N. Y. 95 83, 86 Bell V. Mills, 78 A. D. 42 84. 205 Digitized by Microsoft® XVJ TABLE OF CASES CITED. [References are to Pages.] Belle of Bourbon Co. v. LefHer, 87 A. D. 302.... 250 Bement v. Smith, 15 Wend. 493 105, 176, 235, 245 Benedict v. Field, 16 N. Y. 595 40, 176, 217, 239 Benedict v. Williams, 48 Hun 123 129 Bennett v. Buchan, 76 N. Y. 386 56 Bennett v. Hull, 10 Johns. 364 44 Benson v. Cromwell, 6 Abb. Pr. 83 206 Berg V. Rapid Motor Ve- hicle Co., 78 N. J. L. 724 272 Berk v. International Ex- plosives Co., 7 Com. Cases 20 184 Berman v. Henry N. Clark Co., 194 Mass. 248 271 Bernstein v. Loomis, 87 N. Y. S. 134 203 Bicknell v. Spear, 38 Misc. 389 7, 8 Bierman v. City Mills Co., 151 N. Y. 482 77, 269 Bigelow V. Grannis, 2 Hill 120 7 Bigelow V. Legg, 102 N. Y. 652 251 Bigge V. Parkinson, 7 H. & N. 955 79 Bigler v. Hall, 54 N. Y. 167 120 Bigler v. New York, 6 Hun 239 48 Birdseye v. Frost, 34 Barb. 367 56 Birdsinger v. McCormick Harvesting Mach. Co., 183 N. Y. 487 274 Bishop V. Agricultural Ins. Bishop V. Bishop, 11 N. Y. 123 15 Bissell V. Balcom, 39 N. Y. 275 99 Bissell V. Hopkins, 3 Cowen 166 137 Black River Lumber Co. v. Warner, 93 Mo. 374 246 Blaisdell Machinery Co. v. Brasher Breakwater Co., 70 Misc. 257 56 Blake v. Corbett, 120 N. Y. 327 3 Blanchard v. Trim, 38 N. Y. 225 14 Blaut v. Gabler, 71 N. Y. 461 138 Bloomingdale v. Hewitt, 40 A. D. 208 188 Blossom v. Champion, 28 Barb. 217 221 Blossom V. Shotter, 59 Hun 481; aff'd 128 N. Y. 679 101, 102 Bock V. Healy, 8 Daly 156 202 Boessneck v. Taylor, 46 Misc. 63 196 Bogart V. O'Regan, 1 E. D. Smith 590 235, 236 Booth V. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487 41, 260 Bordwell v. Collie, 45 N. Y. 494 60, 64 Borgfeldt v. Wood, 92 Hun 260; aff'd 154 N. Y. 784 254 Bostock V. Nicholson, 91 L. T. (n. s.) 626 65, 266 Bowers v. Ocean Ace. Corp., 110 A. D. 691 .... 22 Co., 130 N Y. 488 47 Bowman v. Conn. 8 Ind. 58 16 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Bowman v. McClenahan, 20 A. D. 346 118 Boyd V. Wilson, 83 Pa. St. 319 90 Brabin v. Hyde, 32 N. Y 519 18 Brackett Co. v. Kornblum, 71 Misc. 123 28 Bradford v. Manly, 13 Mass. 139 86 Bradley v. Wheeler, 44 N. Y. 495 .... 99, 102, 120, 277 Brady v. Cassidy, 145 N. V. 171 186 Braithwaite v. Foreign Hardwood Co. 92 L. T. (n. s.) 637 249 Braitsch v. Kiel Co., 114 N. Y. S. 872 181, 187 Brand v. Focht, 1 Abb. N. Y. App. Dec. 185 27 Brand v. Weir, 27 Misc. 212 196 Branson v. Turner, 11 Mo. ■<89 270 Brauer v. Oceanic Steam Nav. Co., 178 N. Y. 339, 17, 21 Brawley v. U. S., 96 U. S. 168 187 Brennan v. Crouch, 125 N. Y. 763 3 Brewer v. Ford, 54 Hun 116 245 Bridgford v. Crocker, 60 N. Y. 627 239 Brigg V. Hilton, 99 N. Y. 517 57, 87, 203, 206, 268 Brisbane v. Parsons, 33 N. Y. 332 56 Bristol V. Mente, 79 A. D. 67, aff'd 178 N. Y. 599 . . , 28 Bristol Tramways Co. v. Fiat Motors, 103 L. T. (n. s.) 443 71, 73, 75 Brock V. Knower, 37 Hun 609 17 Bronson v. Gleason, 7 Barb. 472 179 Brower v. Peabody, 13 N. Y. 121 125, 152, 159 Brown v. Babcock Electric Carriage Co., 71 Misc. 549, 258 Brown v. Bard, 118 N. Y. S. 371 181, 199, 206 Brown v. Bellows, 4 Pick. 189 48 Brown v. Floersheim Mer- cantile Co., 206 Mass. 373 163 Brown v. Foster, 108 N. Y. 387 200 Brown v. Frederick J. Quin- by Co., 204 Mass. 206 . . 13 Brown v. Hall, 5 Lans. 177 16 Brown v. Norton, 50 Hun 248 185, 246 Brown v. Sanborn, 21 Minn. 402 16 Brown v. Wilmerding, 5 Duer 220 135 Bruce v. Fiss Horse Co., 47 A. D. 273 274 Bruce v. Pearson, 3 Johns. 534 99, 186, 193 Bryant v. Isburgh, 13 Gray, 607 270 Buckley v. Furniss, 15 Wend. 137; 17 Wend. 504 212, 222, 223, 228, 230, 241 Buckmaster v. Consumer's Ice Co., 5 Daly 313 43 Buddie V. Green, 27 L. J. Ex. 33 182 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Buffalo Cemetery Assoc, v. Buffalo, 118 N. Y. 61, .... 154 Buhl Iron Works v. Teuton, 67 Mich. 623 182 Bull V. Bath Iron Works, 7S A. D. 380 205 Burnell v. Robertson, S Gil- man (111.) 282 134 Burnham v. Eyre, 123 A. D. n71 114 Burrows v. Whitaker, 71 N. Y. 291 102, 120 Burt V. Dewey, 40 N. Y. 283 60, 62 Burt V. Dutcher, 34 N. Y. 493 93, 133 Burtis V. Thompson, 42 N. Y. 246 250 Butler V. Butler, 11 N. Y. 472 243 Butler V. Hirzel, 87 A. D. 462; aff'd 181 N. Y. 520, .. 246 Butler V. Stoddard, 7 Paige 163 138 Butler V. Wright, 186 N. Y. 259 261 Button V. Rathbone, 126 N. Y. 187 284 Butts V. Swartwood, 2 Cowen 431 138 Byrne v. Fremont Realty Co., 120 A. D. 692 23 Cafre v. Lockwood, 22 A. D. 11 57 76 Cahen v. Piatt, 69 N. Y. 348 191. 249, 250, 259 Cahill V. Smith, 101 N. Y. 355 62 Cahn V. Pockett's Bristol Channel Steam Packet Co., 79 L. T. (n. s.) 55 110, 114 Cambridge Valley Bank v. Delano, 48 N. Y. 326 .... 131 Campbell Printing Press Co. V. Walker, 114 N. Y. 7 127 Canada Bank Note Engrav- ing Co. V. Toronto R. Co., 22 Ont. App. 462 25 Canal Bank v. Albany Bank, 1 Hill 287 166 Canda v. Wick. 100 N. Y. 127 210 Carey Lith. Co. v. Maga- zine Co., 70 Misc. 541 . . 45 Carleton v. Lombard, 19 A. D. 297; aff'd, 162 N. Y. 628 27? Carleton v. Lombard, 72 Hun 254 84 Carleton v. Lombard, 149 N. Y. 137 ..50, 57, 66, 75, 77, 82, 205 Carley v. Wilkins, 6 Barb. 557 58 Carlisle v. Kinney, 66 Barb. 363 217, 221 Carlos F. Roses, The, 177 U. S. 655 146, 156 Carpenter v. Galloway, 73 Ind. 418 16 Carter v. Beckwith. 128 N. Y. 312 7 Carter v. Wallace, 32 Hun 384 103, 120 Carter v. Willard, 19 Pick. 1 182 Cartwright v. Wilmerding, 24 N. Y. S21 127 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Carver v. Lane, 4 E. D. Smith 168 18 Cary v. Gruman, 4 Hill 625, 270 Case V. Hall, 24 Wend. 102, 61 Case V. Simonds, 7 N. Y. S. 253 236, 251 Casselli v. Mosso, 90 N. Y. S. 371 203 Cassidy v. Le Fevre, 45 N. Y. 562 260 Catlin V. Tobias, 26 N. Y. 217 183, 185 Caulkins v. Hellman, 47 N. Y. 449 17, 26, 28 Cayuga County Nat. Bank V. Daniels, 47 N. Y. 631 113, 151, 164 Central Trust Co. v. West India Imp. Co., 169 N. Y. 314 32 Chambers v. Lancaster, 160 •N. Y. 342 27, 200 Champlin v. Rowley, 13 Wend. 258, 18 Wend. 187, 186 Chapin v. Fitzgerald, 5 N. Y. S. 722 196 Chapin v. Potter, 1 Hilt. 366 16, 102 Chapin v. Shafer, 49 N. Y. 407 7 Chapman v. Fowler, 132 A. D. 250 202 Chapman v. Murch, 19 Johns. 290 55 Charter Gas Engine Co. v. Kellam, 79 A. D. 231 .. 84 Chicago First Nat. Bank v. Bayley, 115 Mass. 228 171 Chicago First Nat. Bank v. Dean, 137 N. Y. 110 159 Chicago R. Equipment Co. V. Merchant's Nat. Bank, 136 U. S. 268 122 Cincinnati First Nat. Bank V. Kelly, 57 N. Y. 34 .. 151 City Bank v. Rome R. Co., 44 N. Y. 136 . . 144, 162, 164 Clark V. Baker, 11 Mete. 186, 187 Clark V. Fey, 121 N. Y. 470 14, 52, 53 Clark V. Lynch, 4 Daly 83 223, 232, 241 Clark V. Marsiglia, 1 Denio 317 252 Clark V. Mauran, 3 Paige's Ch. 373 223 Clark V. Nichols, 107 Mass. 547 25 Clarke v. Army Co-Oper- ative Soc, 88 L. T. (n. s.) 1 72 Clarke v. Westrope, 25 L. J. C. P. 287 47 Clews V. Friedman, 180 Mass. 55 171 Cluster Gaslight Co. v. Baker, 90 N. Y. S. 1034 . .269 Clute V. Fitch, 23 Barb. 428, 135 Cobb Co. V. Hills. 208 Mass. 270 44 Coddington v. Bay, 20 Johns. 637 284 Coe V. Cassidy, 72 N. Y. 133 3 Coe V. Tough, 116 N. Y. 273, 20, 22 Cohn V. Ammidown, 120 N. Y. 398 64 Coleman v. Eyre, 45 N. Y. 38 14 Colgate V. Pennsylvania Co., 102 N. Y. 120 . . 148, 150, 159 Collins V. Brush, 9 Wend. 198 138 Collins V. Ralli, 20 Hun 246; aff'd 85 N. Y. 637 .. 126, 162 Colt V. Owens, 90 N. Y. 368, 180 Combs V. Bateman, 10 Barb. 573 16, 19 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Comer v. Cunningham, 71 N. Y. 391 121, 127 Comfort V. Kiersted, 26 Barb. 472 92 Commercial Bank v. Arms- by Co., 120 Ga. 74 156 Commercial Bank v. Pfeif- fer, 108 N. Y. 242 112, 151, 157, 162 Conderman v. Smith, 41 Barb. 404 32 Conor V. Dempsey, 49 N. Y. 665 203 Converse v. Miner, 21 Hun 367 61 Conway v. Bush, 4 Barb. 564 106 Cook V. Ferral, 13 Wend. 285 176, 181 Cook V. Mosely, 13 Wend. 277 56, 26S Cooke V. Millard, 65 N. Y. 352 24, 25, 26, 27, 104 Cooper V. Payne, 103 A. D. 118 204 Cooper Mfg. Co. v. De Forest, 5 A. D. 43 129 Coplay Iron Co. v. Pope, 108 N. Y. 232, 3, 50, 66, 203, 207 Cornell v. Clark, 104 N. Y. 451 91, 94, 99 Cornell v. Fox, 95 N. D. 71, 103 Corn Exch. Bank v. Ameri- can Dock Co., 149 N. Y. 174 159 Corning v. Colt, 5 Wend. 253 106, 185, 194 Corrigan v. Sheffield, 10 Hun 227 120 Cortelyou v. Lansing, 2 Caines's Cases 200 . . 200, 256 Costello V. Herbst, 18 Misc. 176 103 Cotton V. Reed, 25 Misc. 380 78 Courtright v. Stewart, 19 Barb. 455 24 Covell V. Hitchcock, 23 Wend. 611 227, 241 Covin V. Hill, 4 Denio 323, 142 Cowles V. Kiehel, 65 N. Y. S. 349 284 Cox, Re, 96 L. T. (n. s.) 719 12 Crage v. Fry, 67 J. P. (1903) 240 267 Cragin v. O'Connell, 50 A. D. 339; aff'd 169 N. Y. 573 246 Craig V. Marsh, 2 Daly 61 129 Crandall v. Haskins, 10 N. Y. St. R. 107 103 Crane v. Powell, 139 N. Y. 379 16, 17 Crawford v. Forristall, 58 N. H. 114 134 Crawford v. Mail Pub. Co., 163 N. Y. 404 52 Creery v. Holly, 14 Wend. 26 142 Crocker-Wheeler Co. r. Varick Realty Co., 104 A. D. 568 202 Crocker-Wheeler Electric Co. V. Johns-Pratt Co., 29 A. D. 300; afl'd 164 N. Y. 593 55 Crofoot v. Bennett, 2 N. Y. 258 35, 91, 102 Croninger v. Crocker, 62 N. Y. 151, . .60, 89, 181, 182, 187, 196, 197 Crooks V. Moore, 1 Sandf. 297 236, 237 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Crookshank v. Burrell, 18 Johns. 58 24 Cross V. O'Donnell, 44 N. Y. 661 . . 26, 212, 217, 223, 229 Cunningham v. Judson, 100 N. Y. 179 52 Currie v. White, 45 N. Y. 822 31, 100, 181 Curtiss V. Prinderville, S3 Barb. 186 40 Cushman v. Thayer Mfg. Deery v. Williams, 27 A. D. 131 250 Deeves v. Manhattan L. Ins. Co., 195 N. Y. 324 . . 268 De Fonclear v. Shotten- kirk, 3 Johns. 170 9 Defreeze v. Trumper, 1 Johns. 274 60 De Groff V. American Linen Thread Co., 21 N. Y. 124 43 Jewelry Co., 76 N. Y. 365, 262 Delafield v. De Grauw, 3 Keyes 467 53 Dahlstrom v. Gemunder, 198 N. Y. 449 57 Dailey v. Green, IS Pa. St. 118 208 Daly V. Crawford, 72 Misc. 272 100 Dana v. Fiedler, 12 N. Y. 40 22, 259 Dando v. Foulds, 105 Pa. St. 74 104 Danforth v. Dart, 11 N. Y. Super. Ct. 101 131 Daniels v. Rogers, 108 A. D. 338 16 Davis V. Bechstein, 69 N. Dempsey v. Gardner, 127 Mass. 381 134, 182 Depew V. Peck Hardware Co., 121 A. D. 28. .67, 205, 273 Devoe v. Brandt, 53 N. Y. 462 130, 131 DeWitt V. Berry, 134 U. S. 306 84, 89 Dexter v. Norton, 47 N. Y. 62 40, 101 Deyo V. Hammond, 102 Mich. 122 44 Dibble v. Corbett, 5 Bos- worth 202 209 Y 44Q 125 Dickey v. Grant, 6 Cowen Davis V. Shields, 26 Wend. ^^° 1^'* 341 21 22 Dickinson v. Gay, 7 Allen Davis Provision Company (Mass.) 29 83 V. Fowler, 20 A. D. 626 78 Dike v. Reitlinger, 23 Hun Day v. Pool, 52 N. Y. 416, 241 53 56, 203, 205, 270 Dillon v. Anderson, 43 N. Deal V. Maxwell, 51 N. Y. Y. 231 252 652 24 Divine v. McCormick, 50 Dean v. Driggs, 137 N. Y. Barb. 116 78 274 158 Dixon V. Buck, 42 Barb. 70 43 Decker v. Furniss, 14 N. Y. Doane v. Dunham, 79 111. 611 93, 101 131 208 Dedrich v. Leonard, 3 N. Y. Doll v. Noble, 116 N. Y. St. R. 780 26 230 52 Digitized by Microsoft® TABLE OF CASES CITED; [References are to Pages.] Donnell v. Hearn, 12 Daly 230 25 Doolin V. Ward, 6 Johns. 194 118 Dorsey v. Pike, SO Hun 534 27 Doughty V. Manhattan Brass Co., 101 N. Y. 644 20, 22 Douglass Axe Mfg. Co. v. Gardner, 10 Cashing 88, 271 Dounce v. Dow, 57 N. Y. 16 203 Dounce v. Dow, 64 N. Y. 411 67, 204 Dowdle V. Bayer, 9 A. D. 308 197, 206 Dowling V. McKenney, 124 Mass. 478 45 Downer v. Thompson, 6 Hill 208 186 Downing v. Stone, 47 Mo. App. 144 130 Downs V. Ross, 23 Wend. 270 24 Dews V. Greene, 32 Barb. 490; aff'd 24 N. Y. 638 162, 241 Dows V. Kidder, 84 N. Y. 121 100, 126 Dows V. National Exch. Bank, 91 U. S. 618 110 Dows V. Perrin, 16 N. Y. 325 153,241 Doyle V. Beaupre, 43 N. Y. St. R. 741; aff'd 137 N. Y. 558 28 Drake v. Seaman, 97 N. Y. 230 21 Drake Hardware Co. v. De- witt, 142 A. D. 189, 192 26, 27, 29 Dresser v. Ainsworth, 9 Barb. 619 63 Drexel v. Pease, 133 N. Y. 129 Ill Dreyfuss v. Foster, 3 N. Y. S. 54 244 Drucklieb v. Universal To- bacco Co., 106 A. D. 470, 187 Drummond v. Van Ingeu, 12 App. Cas. (Eng.) 284, 80 Dryfoos V. Uhl, 69 A. D. 118 250 Dudley v. Gould, 6 Hun 97 131 Dunham v. Pettee, 8 N. Y. 508 175, 179 Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387 .. 52 Durbrow Mfg. Co. v. Cum- ing, 35 A. D. 376 . . 77, 204 Durkee v. Powell, 75 A. D. 176 14, 28 Dustan v. McAndrew, 44 N. Y. 72, ..IS, 197, 216, 234, 237, 238, 243, 245, 251 Dyer v. Forest, 2 Abb. Pr. 282 27 Dykers v. Townsend, 24 N. Y. 57 22 Earle v. Robinson, 91 Hun 363; aff'd 157 N. Y. 683 218, 245 East V. Cayuga Lake Ice Line, 21 N. Y. S. 887 .... 188 Ebbw Vale Steel Co. v. Blaina Iron Co., 6 Com. Cases 33 190 Eddy V. Davis, 116 N. Y. 247 245 Edgerton v. Hodge, 41 Vt. 676 19 Edick V. Crim, 10 Barb. 445 61 Edmead v. Anderson, 118 A. D. 16 245 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] XXlll Edwards v. Farmer's Fire Insurance Co., 21 Wend. 467 3 Edwards v. Meadows, 71 Ala. 42 182 Edwards v. Vaughan, 26 T. L. R. 349, 545 99 Edward Thompson Co. v. Boudin, 135 A. D. 872 . . 245 Edward Thompson Co. v. Vacheron, 69 Misc. 83 122, 193 Egbert v. Hanford Produce Co., 92 A. D. 252 55 Eighmie v. Taylor, 98 N. Y. 288 57 Elberton Hardware Co. v. Hawes. 122 Ga. 858 47 Elgin First National Bank V. Schween, 127 111. 573 3 Ellison V. Creed, 34 A. D. IS 200 El well V. Chamberlin, 31 N. Y. 611 57 Elwell V. Skiddy, 11 N. Y. 282 160 Empire State Bag Co. v. V. McDermott, 89 A. D. 234 55 Empire State Type Foun- dry Co. V. Grant, 114 N. Y. 40 100, 177 English V. Spokane Com- mission Co., 48 Fed. 196.. 206 Eppens Co. v. Littlejohn, 27 A. D. 22 S3 Eppens Co. v. Littlejohn, 164 N. Y. 187 180 E. T. Burrowes Co. v. Rapid Safety Filter Co., 49 Misc. 539 77, 86, 196, 202, 203 E. W. Bliss Co. V. U. S. Incandescent Gas Light Co., 149 N. Y. 300 ..179, 181, 196 Exhaust Ventilator Co. v. Chicago R. Co. 66 Wis. 218 208 Eyers v. Haddem, 70 Fed. 648 271 Fairbank Canning Co. v. . Metzger, 118 N. Y. 260 55, 78, 81, 203, 205 Fairfield v. Madison Manu- facturing Co., 38 Wis. 346, 104 Falkenberg v. O'Neill, 88 N. Y. S. 378 259 Fancher v. Goodman, 29 Barb. 315 235, 236, 239 Farmers' Nat. Bank v. Lang, 87 N. Y. 209 .... 159 Farmers' Nat. Bank v. Logan, 74 N. Y. 568 ..110, 113, 122, 125, 169 Farquharson v. King, 86 L. T. (n. s.) 810 124 Fenwick v. Macdonald, 6 Sessions Rep. 850 117 Ferguson v. Natter, 204 N. Y. SOS 81, 203 Filkins v. Whyland, 24 N. Y. 338 57 Finlayson v. Wiman, 84 Hun 357 246, 250 Firth V. Midland R. Co., L. R. 20 Eq. 100 47 Fisher v. Seltzer, 23 Pa. St. 308 117 Fisher v. Stout, 74 A. D. 97, 138 Fiss Horse Co. v. Kiernan, 108 N. Y. S. 1105 103 Fiss Horse Co. v. Schwartz- child, 121 N. Y. S. 292 56, 103 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Fitzgerald v. Fuller, 19 Hun 180 127 Flanagan v. Demarest, 3 Robt. 173 188 Flash V. Rossiter, 116 A. D. 880 22 Fleetham v. Reddick, 82 Hun 390 32 Flint V. Corbitt, 6 Daly 429 24 Flint V. Standard Rope Co., 52 A. D. 459 187 Flood V. Senger, 140 A. D. 140 81, 243 Foerster v. Gallinger, 62 Hun 439 253 Follett Wool Co. V. Utica Trust Co., 84 A. D. 151 27 Foot V. Marsh, 51 N. Y. 288 35, 120 Forbes v. Boston R. Co., 133 Mass. 154 ISO Ford V. Erde, SO Misc. 665 235 Forgotston v. Cragin, 62 A. D. 243 62 Forrestt v. Aramayo, 83 L. T. (n. s.) 335 179 Foster v. Pettibone, 7 N. Y. 433 3 Fowler v. Anderson, 132 A. D. 603 56 Fox V. Woods, 96 N. Y. S. 117 236, 237 Fraschieris v. Henriques, 6 Abb. Pr. N. S. 251 .... 228 Frazer v. Mott, 118 A. D. 791 244 Freiberg v. Steanbock, 54 Minn. 509 182 Friedgood v. Kline, 67 Misc. 428 273 Friedlander v. Texas R. Co., 130 U. S. 416 144 Froehlich Rubber Reiining Co., In re, 139 Fed. 201, 104 Frost V. Aylesbury Dairy Co., 92 L. T. (n. s.) 527 71, 266 Fuller V. Negus, 8 N. Y. S. 681 176 Furman v. Union Pac. R. Co., 106 N. Y. 579 ... Ill, 159 Gallagher v. Nichols, 60 N. Y. 438 52 Gallagher v. Waring, 9 Wend. 20 60 Gallus V. Elmer, 193 Mass. 106 44 Ganser v. Weber, 35 Misc. 303 191 Gardenier v. Tubbs, 21 Wend. 169 138 Gardiner v. Suydam, 7 N. Y. 357 91 Gardner v. Clark, 21 N. Y. 399 191 Gardner v. Joy, 9 Mete. 177 25 Garvin Mach. Co. v. Hutch- inson, 1 A. D. 380 24 Gass V. Astoria Veneer Mills, 121 A. D. 182 99, 107, 160, 196 Gass V. Astoria Veneer Mills, 134 A. D. 184 99, 107, 148. 156, 157, 167, 241 Gautier v. Douglass Mfg. Co., 13 Hun 514 77, 205 Gay V. Ballou, 4 Wend. 402, 6, 8 Gaylord Mfg. Co. v. Allen, 53 N. Y. 515 ... 3, 77, 204, 205 Geiser Mfg. Co. v. Taylor, 55 A. D. 638 200 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Gelb V. Waller, 115 N. Y. S. 201 57, 270 General Electric Co. v. Na- tional Contracting Co., 178 N. Y. 369 251 Genesee College v. Dodge, 26 N. Y. 213 181 Genesee Valley Milk Prod- ucts Co. V. J. H. Jones Corp., 143 A. D. 624 .... 243 Gentilli v. Starace, 133 N. Y. 140 196, 204 George Lawley Corp. v. Park, 138 Fed. 31 270 Gerli V. Mistletoe Silk Mills, 80 N. J. L. 128 196, 200, 271 Gibson v. Pelkie, 37 Mich. 380 38 Gibson v. Stevens, 8 How. (U. S.) 384 162 Gibson v. Tobey, 46 N. Y. 637 100, 176 Gilbert v. Alton, 88 A. D. 62 258 Giles V. Bradley, 2 Johns. Cases 253 103 Gill V. Frank, 12 Ore. 507 150 Gillespie v. Cheney, 2 Q. B. (1896) 59 72, 74 Gillespie v. Torrance, 25 N. Y. 306 267 Gillett V. Hill, 2 Cromp. & M. 530 34 Gilmore v. Williams, 162 Mass. 351 206 Gilson V. Madden, 1 Lan- sing 172 160 Gindre v. Gean, 7 Misc. 582 3 Ginsberg v. Lawrence, 121 N. Y. S. 337 57, 269 Giordano v. Nizzari, 115 N. Y. S. 719 99, 270 Goddard v. Binney, 115 Mass. 450 23, 25 Gelding V. Russell, 131 A. D. 540 203 Goldman v. Rosenberg, 116 N. Y. 78 40 Good V. Curtiss, 31 How. Pr. 4 29, 102 Goodman v. Steinfeld, 20 Misc. 224 235, 236 Goodrich v. Jones, 2 Hill 142 15 Goodsell V. Myers, 3 Wend. 479 7 Gordon v. Norris, 49 N. H. 376 246 Gordon Battery Co. v. American Watchman's Time Detector Co., 36 Misc. 802 272 Goshen Nat. Bk. v. Bing- ham, 118 N. Y. 349 164 Gossler V. Schepeler, 5 Daly 476 ...111, 213, 223, 229 Gould V. Bourgeois, 51 N. J. L. 361 61 Gould V. Stein, 149 Mass. 570 67 Gourd V. Healy, 137 A. D. 323 107, 244 Gowing V. Warner, 29 Misc. 593, aff'd 30 Misc. 593 ... . 131 Grabfelder v. Vosburgh, 90 A, D. 307 176 Grant v. U. S., 7 Wall. 331 123 Grantham v. Hawley, Ho- bart 132 31 Gray v. Booth, 64 A. D. 231 244 Gray v. Davis, 10 N. Y. 285 27 Gray v. Delaware R. Co., 48 N. Y. Super. Ct. 121 ... . 53 Gray v. Walton, 107 N. Y. 254 117, 179 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Greacen v. Poehlman, 191 N. Y. 493 102 Greaves v. Ashlin, 3 Camp- bell 426 210 Green v. Armstrong, 1 Denio 550 14 Green v. Edgar, 21 Hun 414, 206 Green v. Green, 69 N. Y. 553 7 Greenberg v. Davidson, 39 Misc. 796 15 Grey v. Cary, 9 Daly 363 28, 193 Griffin V. Colver, 16 N. Y. 489 260 Grimoldley v. Wells, L. R. 10 C. P. 391 208 Groat V. Gile, 51 N. Y. 431, 94, 99, 102 Grose v. Hennessey, 13 Allen (Mass.) 389 62 Gross V. Ajello, 132 A. D. 25 175, 179, 181, 246 Guernsey v. Carver, 8 Wend. 492 .' 244 Gurney v. Atlantic R. Co., 58 N. Y. 358 . .82, 87, 205, 269 Gutwillig V. Zuberbier, 41 Hun 361 77, 193, 194 Haegerstrand v. Anne Thomas Steamship Co., 10 Com. Cases 67 50 Hagan v. Domestic Mach. Co., 9 Hun 73 22 Hagedorn v. Lang, 34 A. D. 117 21, 23 Haggerty v. Palmer, 6 Johns. Ch. 437 100, 218 Hague V. Porter, 3 Hill 141, 106 Hall V. Tuttle, 8 Wend. 375 137 Hallenbeck v. Cochran, 20 Hun 416 18, 28 Hallgarten v. Oldham, 135 Mass. 1 134, ISO, 162 Halterline v. Rice, 62 Barb. 593 101 Halvordson v. Grossman, 107 N. Y. S. 627 179 Hamburger v. Rodman, 9 Daly 93 99, 212, 217, 219, 223, 241 Hamilton v. Park Co., 125 Mich. 72 38 Hammett v. Linneman, 48 N. Y. 399 100 Hamrah v. Maloof, 111 N. Y. S. S09 258 Hanna v. Mills, 21 Wend. 90 244 Hano V. Simons, 92 N. Y. S. 337 203 Hanover Nat. Bank v. American Dock Co., 148 N. Y. 612 159 Hardt v. Western Electric Co., 84 A. D. 249. .87, 204, 269 Hardy v. Potter, 10 Gray 89 134 Hargous v. Stone, 5 N. Y. 73 .... 78, 80, 81, 86, 88, 205 Harland v. Burstall, 84 L. T. (n. s.) 324 98, 193 Harman v. Reeve, 25 L. J. C. P. 257 14 Harris v. Pratt, 17 N. Y. 249 212, 227, 232 Harrison v. Scott, 135 A. D. 546 200 Harrison v. Scott, 203 N. Y. 369 196 Hart V. Wright, 17 Wend. 267 78, 81, 270 Hartley v. Rotman, 200 Mass. 372 62 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Hass V. Brady, 49 Misc. 235 6 Hass V. Pettingill, 29 Misc. 318 246 Hastie v. Couterier, 9 Exch. 102 38 Hatch V. Gluck, 47 Misc. 122 28 Hauterman v. Bock, 1 Daly 366 112, 228 Haven v. Russell, 34 N. Y. S. 292 53 Hawkins v. Pemberton, 51 N. Y. 198 54, 66, 205 Hawley v. Keeler, 53 N. Y. 114 17, 18, 19, 22, 27 Hayden v. Demets, 53 N. Y. 426.. 100, 105,235,239,243, 245, 251 Haynes v. Hart, 42 Barb. 58, 177 Hays V. Mouille, 14 Pa. 48, 223 Hazul V. Dunham, 1 Hall (N. Y.) ,655 118 Healy v. Brandon, 66 Hun 515, aff'd 142 N. Y. 681 . . 76 Healy v. Utly, 1 Co wen 345, 239 Heath Dry Gas Co. v. Hurd, 193 N. Y. 255.. 77, 204 Heermance v. Taylor, 14 Hun 149 26 Heilbrunn v. Weislow, 129 A. D. 532 246 Hendrickson v. Callan, 70 Misc. 342 176, 181 Henry v. Talcott, 175 N. Y. 385 ()1, 86, 87, 88, 89, 204 Hentz V. Miller, 94 N. Y. 64 126 Herrick v. Carter, 56 Barb. 41 44 iPlTi-ick V. Gallagher, 60 Barb. 566 198 Herrick v. Whitney, 15 Johns. 240 166 Herring v. Hoppock, 15 N. Y. 409 121 Hershey Lumber Co. v. St. Paul Sash Co., 66 Minn. 449 19 Herzog v. Heyman, 151 N. Y. 587 60, 243 Hess V. Kaufherr, 128 A. D. 526 206 H. Herrmann Lumber Co. V. Heidelberg, 46 Misc. 465 204 Hibernia Sav. Soc. v. Behnke, 121 Cal. 339 .. 117 Higgins V. Delaware R. Co., 60 N. Y. 553 52 Higgins V. Eagleton, 155 N. Y. 466 206 Higgins V. Kusterer, 42 Mich. 318 14 Higgins V. Murray, 73 N. Y. 252 24, 106, 121 Hight V. Bacon, 126 Mass. 10 78, 82 Hill V. Anderson, 13 Miss. 216 129 Hill V. Blake, 97 N. Y. 216, 253 Hill V. Heller, 27 Hun 416, 186 Hills V. Lynch, 3 Robt. 42 106, 194 Hilton Lumber Co. v. Sizer, 137 A. D. 661 185, 244 Hinds V. Kellogg, 13 N. Y. S. 922; aff'd 133 N. Y. 536 25 Hinton v. Locke, 5 Hill 437, 277 Hirsch Lumber Co. v. Hub- bell, 143 A. D. 317 100 Hodges V. Hurd, 47 111. 363 182 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Hoe V. Sanborn, 21 N. Y. 552 ..51, 60, 64, 70, 76, 77, 269 Hoffman v. Gallaher, 6 Daly 42 S3 Hoffman v. King, 58 Wis. 314 187 Holbrook v. Vose, 6 Bosw. 16. .212, 223, 229, 232, 240, 241 Holden v. Bostock, 50 Weekly Rep. 323 267 Holliday v. Marshall, 7 Johns. 211 47, 48 HoUingsworth v, Napier, 3 Caines 182 241 Hollins V. Hubbard, 165 N. Y. 534 213 Holroyd v. Marshall, 10 H. L. C. 191 32 Hooper v. Story, 155 N. Y. 171 203, 272 Hoover, In re, 33 Htm 553 26 Hopkins v. Ensign, 122 N. Y. 144 118 Hopkins v. Grinnell, 28 Barb. 533 61 Hornberger v. Feder, 30 Misc. 121 239 Hospital Supply Co. v. O'Neill, 10 Misc. 655; aff'd 155 N. Y. 634 200 Hoult V. Baldwin, 67 Cal. 610 270 House V. Babcock, 17 N. Y. S. 640 251 Howard v. Daly, 61 N. Y. 362 250 Howard v. Hayes, 47 N. Y. Super. Ct. 89; aff'd 90 N. Y. 643 269 Howard v. Hoey, 23 Wend. 350 80, 81 Howard Iron Works v. Buffalo Elevating Co., 113 A. D. 562; aff'd 188 N. Y. 619 .... 51, 69, 75, 77, 78, 79, 81, 83 Hoyt V. Hartford F. Ins. Co., 26 Hun 416 .... 150, 162 Hudson V. Swan, 83 N. Y. 552 221 Hudson Iron Co. v; Alger, 54 N. Y. 173 4, 44 Hull V. Hull, 48 Conn. 250 32 Humaston v. American Tel. Co., 20 Wall. (U. S.) 20 47 Humeston v. Cherry, 23 Hun 141 122 Hummel V. Stern, 21 A. D. 544; aff'd 164 N. Y. 603 . . 52 Hunn V. Bowne, 2 Caines 38 221, 223 Hunter v. Wetsell, 57 N. Y. 372, 84 N. Y. 549 18, 21, 181, 245 Hurd V. Cook, 75 N. Y. 454 93 Huschle V. Morris, 131 111. 587 134 Husted V. Ingraham, 75 N. Y. 251 100, 217 Hutton v. Moore, 26 Ark. 382 47 Hyslop V. Shirlaw, 7 Ses- sions Cases 875 54 lasigi v. Rosenstein, 65 Hun 591 194 Ideal Wrench Co. v. Garvin Mach. Co., 92 A. D. 187; aff'd 181 N. Y. 573 87, 202, 260 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] XXIX Illustrated Postal Card Co. V. Holt, 81 Atl. 1061 .... 246 Ingalls V. Herrick, 108 Mass. 351 134 Ingraham v. Baldwin, 9 N. Y. 45 7 Interstate Steamboat Co. v. Syracuse First Nat. Bank, 87 Hun 93 14, 101 Ireland v. Johnson, 18 Abb. Pr. 392 19 Irvine v. Stone, 6 Cush. (Mass.) 508 14 Isaacs V. Terry & Tench, 132 A. D. 657 251 Isbell-Porter Co. v. Hein- man, 113 A. D. 79 203 Ives V. Polak, 14 How. Pr. 411 241 Jackson v. Covert, 5 Wend. 139 13 Jackson v. Helmer, 73 A. D. 135 81 Jackson v. Rotax Motor Co., 103 L.T. (n. s.) 411.. 74 Jackson v. Tupper, 101 N. Y. 515 18 Jackson v. Watson, 100 L. T. (n. s.) 799 71, 265 Jacobs V. Day, 5 Misc. 410 86, 270 James v. Burchell, 82 N. Y. 108 245 James v. Libby, 41 Misc. 210 205 James v. Patten, 6 N. Y. 9 22 Jardine v. Huguet Silk Co.. 203 N. Y. 273 251 Jeffris V. Fitchburg R. Co., 93 Wis. 250 223 Jemison v. Citizen's Sav. Bank, 122 N. Y. 135 6 Jennings v. Carter, 2 Wend. 446 138 J. H. Labaree Co. v. Cross- man, 100 A. D. 499; aff'd 184 N. Y. 586 176 Jobbitt v. Goundry, 29 Barb. 509 160 Jobson v. Eppenheim, 21 T. L. R. 468 226 Johnson v. Brooks, 93 N. Y. 337 14, 262 Johnson v. Dickinson, 78 N. Y. 42 212, 221 Johnson v. Hunt, 11 Wend. 135 105 Johnson v. Meeker, 96 N. Y. 93 252 Johnston v. Trask, 116 N. Y. 136 14 Jones v. Bloomgarden, 143 Mich. 326 208 Jones V. Joyner, 82 L. T. (n. s.) 768 12 Jones V. National Printing Co., 13 Daly 92 .202 Jones V. Reynolds, 120 N. Y. 213 IS, 18 Joyce V. Adams, 8 N. Y. 291... 40, 99, 101, 120, 176, 258 J. Spencer-Turner Co. v. Robinson, 55 Misc. 280 20, 21 Juilliard v. Trokie, 139 A. D. 530 21 Julian V. Laubenberger, 16 Misc. 646 78 Justice V. Lang, 42 N. Y. 493 19, 22 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Kein v. Tupper, 52 N. Y. SSO 40, 120, 186 Keller v. Strasburger, 90 N. Y. 379 243 Kelley v. Upton, S Duer 336 3, 94, 176 Kellogg V. Witherhead, 4 Hun 273 24 Kelly Asphalt Block Co. v. Barber Asphalt Paving Co., 136 A. D. 22 .. 57, 77, 205 Kelso V. Marshall, 24 A. D. 128 250 Kemp V. Ismay, 100 L. T. (n. s.) 996 225 Kennedy v. National Union Bank, 23 Hun 494 284 Kennedy v. Whitwell, 4 Pick. 466 255 Kenniston v. Ham, 29 N. H. 501 47, 48 Kent V. Friedman, 101 N. Y. 616 203 Kent Iron Co. v. Norbeck, 150 Pa. St. 559 256 Kenworthy v. Schofield, 2 B. & C. 945 20 Keswick v. Rafter, 35 A. D. 508; aff'd 165 N. Y. 653 3 Kidston v. Monceau Iron- works Co., 86 L. T. (n. s.) 556 50 Kienle v. Klingman, 24 Misc. 708 200 Killmore v. Howlett, 48 N. Y. 569 15 Kimberly v. Patchin, 19 N. Y. 330 34, 35, 91 King V. Faist, 161 Mass. 449, 253 Kinkead v. Lynch, 132 Fed. 692 246 Kinsey v. Leggett; 71 N. Y. 387 127 Kipp V. Meyer, S Hun 111, 202 Kirkham v. Attenborough, 75 L. T. (n. s.) 543 98 Knight V. Forward, 63 Barb. 311 138 Knox V. Eden Musee Americain Co., 148 N. Y. 441 125 Kokomo Strawboard Co. v. Inman, 134 N. Y. 92. .191, 253 Konitzky v. Meyer, 49 N. Y. 571 45 Koon V. Brinkerhoff, 39 Hun 130 120, 176 Kortright v. Buffalo Com- mercial Bank, 20 Wend. 91 256 Koster v. Koedding, 68 N. Y. S. 794 28 Kribbs V. Alford, 120 N. Y. 519 32 Krulder v. Ellison, 47 N. Y. 36 105, 107, 193 Kupfer V. Pellman, 67 Misc. 149 88, 269 Lackawanna Mills v. Weil, 78 Hun 348 244 Lacker v. Rhoades, 45 Barb. 499 129 Laing v. Barclay, 97 L. T. (n. s.) 816 97 La Manna v. Munroe, 48 A. D. 495 284 Lamb v. Crafts, 12 Mete. 353 25 Lamb v. Traitel, 12 Misc. 140 187, 207 Landreth v. Wyckoff, 67 A. D. 145 55, 75, 78, 273 Lanfear v. Sumner, 17 Mass. 110 133 Digitized by Microsoft® TABLE OF CASES CITED. xxxi [References are to Pages.] Lange v. Pisch, 9 Misc. Levy v. Kornreich, 121 N. 475 100 Y. S. 346 203 Lansing v. Turner, 2 Johns. Lewin v. Stewart, 17 How. 13 99, 120 Pr. 5 28 Larrowe Milling Co. v. Lewis v. Doyle, 13 A. D. Lyons Beet Sugar Re- 291 55, 271 fining Co., 137 A. D. 732 Lewis v. Greider, 51 N. Y. 88, 203, 272 231 234, 235, 236, 237 Laufer v. Boynton Furnace Lichtenstein v. Rabolinsky, Co., 84 Hun 311 273 98 A. D. 516; aff'd 184 N. Lawrence v. Woods, 4 Y. 520 56 Bosw. 354 14 Lifshitz v. McConnell, 80 A. Lawton v. Keil, 61 Barb. D. 289 196, 202 558 57 Lighthouse v. Buffalo Third League Cycle Co. v. Abra- Nat. Bank, 162 N. Y. 336 hams, 27 Misc. 548 91, 262 57, 77, 203, 205 Lincoln v. Gallagher, 79 Lee V. Griflfin, 1 B. & S. Maine 189 196 272 23, 24 Linde v. Huntington, 37 Leffingwell v. White, 1 Misc. 212 28 Johns. Cases 99 180 Lissberger v. Kellogg, 78 N. Lefurgy v. Stewart, 23 N. Y. J. L. 85 67, 268 S. 537 45 Lister v. WindmuUer, 52 Lehmaier v. Standard Spe- N. Y. Super. Ct. 407 .... 61 cialty Co., 123 A. D. 431.. 250 Litchfield Bank v. Elliott, Lekas v. Schwartz, 56 Misc. 83 Minn. 469 150 594 250 Littauer v. Goldman, 72 N. Leonard v. Fowler, 44 N. Y. Y. 506 166 289 88 Littlejohn v. Shaw, 159 N. Leopold V. Van Kirk, 27 Y. 188 206 Wis. 152 70 Lobdell v. Hopkins, 5 Cowen Lesin v. Shapiro, 147 A. D. 516 179 100 57 Locklin v. Moore, 57 N. Y. Leven v. Smith, 1 Denio 571 221 360 243 Levin v. Dietz, 48 Misc. Long v. White, 42 Ohio St. 593 20 59 15 Levis V. Pope Motor Car Lord v. Kenny, 13 Johns. Co., 202 N. Y. 402 219 103 56, 57, 103, 203 Lord v. Thomas, 64 N. Y. Levy v. Carr, 85 Hun 289 .. 129 107 252 Levy V. Glassberg, 92 N. Y. Lorymer v. Smith, 1 B. & C. S.SO.... 239,246 1 89 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Love joy v. Michels, 88 Mich. IS 45 Lower v. Winters, 7 Cowen 263 15 Luckes V. Meserole, 132 A. D. 20 55, 57 Ludlow V. Bowne, 1 Johns. 1 107 Ludwig V. Pusey Co., 143 A. Marie v. Garrison, 66 N. Y. 288 118 Marine Bank v. Wright, 48 N. Y. 1 113, 151, 162 Marsh v. Rouse, 44 N. Y. 643 27 Marsh v. Russell, 66 N. Y. 288 118 Marsh V. Titus, 3 Hun 550. . 3 D. 290 244 Marshuetz v. McGreevy, 23 Lupin V. Marie, 6 Wend. Hun 408 203 n 221, 223 Martineau v. Kitching, L. R. Lyon V. Motley, 9 Misc. 500, 103 7 Q. B. 436 120, 123 Marvin Safe Co. v. Eman- MacEvoy v. Aronson, 46 uel, 21 Abb. N. C. 181 . . 245 Misc. 622 17 Mason v. Decker, 72 N. Y. Machson v. Syrop, 91 N. Y. 595 . . 19, 22, 105, 235, 239, S. 12 52 243, 245, 251 Mack V. Snell, 140 N. Y. Mason v. Smith, 130 N. Y. 193 3 474 196, 200 Mackie v. Egan, 6 Misc. 95, 246 Massey v. State, 74 Ind. MacKnight Flintic Stone 368 44 Co. V. New York, 160 N. Masterton v. Brooklyn, 7 Y. 72 48 Hill 61 251 Macksoud v. Dildarian, 93 N. Y. S. 382 43 Macrea v. Gotham Rubber Co., 118 A. D. 455 203 Madison Ave. Baptist Church V. Oliver St. Bap- tist Church, 46 N. Y. 131, 3 Mairs v. Baltimore R. Co., 73 A. D. 265; aff'd 175 N. Mather v. Gordon, 11 Conn. 341 171 Mathes v. McCarthy, 195 N. Y. 40 203, 272 May V. Ward, 134 Mass. 127 25 Maybee v. Tregent, 47 Mich. 495 167 Mayer v. McCreery, 119 N. Y. 434 43 Y. 409 148, 160 Maynard v. Anderson, 54 N. Mallory v. Willis, 4 N. Y. Y. 641 221 70 3 McAfee v. Dix, 101 A. D. Mann v. National Linseed 71 203^ Oil Co., 87 Hun 558 236 McAfee v. WyckofI, 44 Manufacturer's Commercial Misc. 380 197 Co. V. Rochester R. Co., McCarthy v. Ellers, 107 A. 117 N. Y. S. 989 . . . . 107, 162 D. 219 203 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] McCarty v. Blevins, 5 Yerg. 195 32 McClure v. Central Trust Co., 165 N. Y. 108 ... . 60, 64 McConihe v. New York R. Co., 20 N. Y. 495 101, 120, 122 McConnell v. Hughes, 29 Wis. 537 43 McCormick v. Sarson, 45 N. Y. 265 82, 203 McCormick Harvesting Mach. Co. V. Markert, 107 Iowa 340 246 McCormick Harvesting Mach. Co. V. Warfield, 33 A. D. 513 203 McCoy V. Artcher, 3 Barb. 323 61 McDonald v. Hewett, 15 Johns. 349 101 McDonald v. Pierson, 38 Barb. 128 103 McElwee v. Metropolitan Lumber Co., 69 Fed. 302 217, 221, 241 McEwen v. Morey, 60 111. 32 4S McFarland v. Wheeler, 24 Wend. 467 219, 221 McGibbon v. Schlessinger, 18 Hun 225 235, 236 McGiffin V. Baird, 62 N. Y. 329 51, 60, 62 McGoldrick v. Willits, 52 N. Y. 612 129 Mclntee v. New Jersey Steamboat Co., 45 N. Y. 34 156 Mc Knight v. Devlin, 52 N. Y. 399 61 McKnight v. Dunlap, 5 N. Y. 537 28, 259 McManus v. Fortescue, 96 L. T. (n. s.) 444 116 McNeil V. New York Tenth Nat. Bank, 46 N. Y. 325 . . 126 M'Crea v. Purraoat, 16 Wend. 460 22 M'Dowall V. Snowball Co., 7 Sessions Cases 35 226 Mead v. Degolyer, 16 Wend. 632 186 Mechan v. Bow, 1910 Ses- sion Cases 758 199 Mechanic's Bank v. Farm- ers' Nat. Bk., 60 N. Y. 40 Ill Mee v. McNider, 109 N. Y. 500 105, 120 Menken v. Baker, 40 A. D. 609; aff'd 166 N. Y. 628 . . 138 Mentz v. Newwitter, 122 N. Y. 491 21, 23 Merchants' Bank v. Union R. Co., 69 N. Y. 373 . . 144, 162, 164 Merchants' Exch. Bank v. McGraw, 59 Fed. 972 ... 171 Meriden Nat. Bk. v. Gal- laudet, 120 N. Y. 298 ... . 166 Merriam v. Field, 39 Wis. 578 82 Merriman Paper Co. v. New York Market Gardeners' Assoc, 58 Misc. 236 76 Merritt v. Clason, 12 Johns. 102 20 Mersereau v. L. K. Hirsch Co., 136 A. D. 271 . . 180, 193 Messmore v. New York Shot Co., 40 N. Y. 422 236, 260, 273 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Metz V. Virgil Practice Clavier Co., 26 Misc. 726 77 Meyers v. Schemp, 67 111. 469 15 Meyers Bros. Drug Co. v. McKinney, 137 A. D. 541, 251 Mida V. Geissmann, 17 111. App. 207 167 Miles V. Lingerman, 24 Ind. 385 129 Millar v. Fitzgibbons, 9 Daly 505 24 Millar's Karri Co. v. Wed- del, 100 L. T. (n. s.) 128. . 190 Miller V. Cook, 23 N. Y, 495 21 Miller v. F. R. Patch Mfg. Co., 101 A. D. 22 SS, 272 Miller v. Hannibal R. Co., 90 N. Y. 430 158 Miller v. Leo, 35 A. D. 589; aff'd 165 N. Y. 619 188 Milliken v. Skillings, 89 Me. 180 270 Mills V. Hunt, 17 Wend. 333, 20 Wend. 431 16, 117 Milnes v. Gery, 4 Vesey Jr. 400 47 Miner v. Blume, 64 A. D. 511 260 Minturn v. Main, 7 N. Y. 220 118 Mitchell V. Gile, 12 N. H. 390 44 Mitchell V. LeClaire, 165 Mass. 308 105 Mitchell V. Rowley, 63 Misc. 643 269 Mitchell V. West, 55 N. Y. 107 138 Mitchell V. Worden, 20 Barb. 253 131 Mixer v. Howarth, 21 Pick, 205 23, 25 Mendel v. Steel, 8 M. & W. 858 270 Money v. Fisher, 92 Hun 347 78 Moneyweight Scale Co. v. Loewenstein, 103 N. Y. S. 80 193 Monroe v. Reynolds, 47 Barb. 574 177, 254 Montauk Assoc, v. Daly, 62 A. D. 101; aff'd 171 N. Y. 659 20 Moore v. King, 57 Hun 224; aff'd 134 N. Y. 596 55 Moore v. Metropolitan Nat. Bank, 55 N. Y. 41 126 Moore v. Potter, 155 N. Y. 481 239, 251 Moors V. Kidder, 106 N. Y. 32 3, 110 Morel V. Stearns, 43 Misc. 639 181 Morey v. Medbury, 10 Hun 540 100, 121, 218 Morris v. Rexford, 18 N. Y. 552 245, 253 Morris v. Sliter, 1 Denio 59 245 Moses V. Mead, 1 Denio 378 78 Motley V. Elmenhorst, 142 A. D. 830 196, 200 Mottram v. Heyer, 5 Denio 629 .... 212, 223, 228, 229, 232 Mount V. Lyon, 49 N. Y. 552 258 Mowrey v. Walsh, 8 Cowen 238 125, 129 Muller V. Eno, 14 N. Y. 597 206, 268, 270 Muller V. Pondir, 55 N. Y 325 212 Digitized by Microsoft® TABLE OF CASES CITED. XXXK [References are to Pages. 1 Munroe v. Philadelphia Warehouse Co., 75 Fed. 545 144, 156 Murchie v. Cornell, 155 Mass. 60 82 Mustard v. Wohlford, 15 Grattan 329 130 Mutual L. Ins. Co. v. Hunt, 79 N. Y. 541 7 Mutual Milk Co. v. Prigge, 112 A. D. 652 6 Myers v. Harris, 104 N. Y. S. 514 19 Myers v. Sanders, 7 Dana (Ky.) 506 129 Nash V. Weaver, 23 Hun 513 99 Nash V. Weidenfeld, 41 A. D. 511 269 National Cash Register Co. V. South Bay Club House Assoc, 64 Misc. 125 121 National Coal Tar Co. v. Maiden Gaslight Co., 189 Mass. 234 176 National Commercial Bank V. Lackawanna Transp. Co., 59 A. D. 270; affd 172 N. Y. 596 159, 160 National Metal Edge Box Co. V. Gotham, 125 A. D. 101 62 Naugatuck Cutlery Co. v. Babcock, 22 Hun 481 .... 130 Neimeyer Lumber Co. v. Burlington & Mo. R. R. Co., 54 Neb. 321 156 Nelson v. Gibson, 143 A. D. 894 127 Neumeyer v. Hooker, 131 A. D. 592 193 Newberry v. Wall, 65 N. Y. 484 21, 67 Newell V. Smith, 53 Conn. 72 43 New England Trust Co. v. Abbott, 162 Mass. 148 ... 47 New York Nat. Banking Assoc. Bank v. American Dock Co., 143 N. Y. 559.. 159 NichoUs V. American Steel Co., 117 A. D. 21; aff'd 191 N. Y. 554 260 Nichols V. Scranton Steel Co., 137 N. Y. 471 ... 191, 250 Nichols V. Townsend, 7 Hun 375 203 Nicholson V. Harper, 73 L. T. (n. s.) 19 133 Nickoll V. Ashton, 82 L. T. (n. s.) 761 39 Nightingale v. Eiseman, 121 N. Y. 288 ,186 Noble V. Smith, 2 Johnson 52 4 Non-Magnetic Watch Co., Matter of, 89 Hun 196 , . 105, 112, 144, 151 Norrington v. Wright, 115 U. S. 188 190 Northrup v. American Exch. Bank, 7 N. Y. St. R. 582 . . 284 Northwestern Cordage Co. V. Rice, 5 N. D. 432 206 Norton v. Davison, 80 L. T. (n. s.) 139 12 Norton v. Dreyfuss, 106 N. Y. 90 82, 205, 271 Norton v. Woodruff, 2 N. Y. 153 3 Norwich Light Co. v. Ames, 122 A. D. 319 203 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Oatman v. Watrous, 105 N. Y. S. 174 6 O'Brien v. Jones, 91 N. Y. 193 61 O'Donohue v. Leggett, 134 N. Y. 40 196, 269 O'Gara v. Ellsworth, 85 A. D. 216 259 Olyphant v. Baker, 5 Denio 379 99, 102 Oneida Mfg. Soc. v. Law- rence, 4 Cowen 440 ... 54, 81 O'Neill V. New York Cent. R. Co., 60 N. Y. 138 17 Oppenheimer v. Wells, 55 Misc. 385 223 O'Rourke v. Hall, 38 A. D. 534 6 Osborn v. Gantz, 60 N. Y. 540 56, 100, 218 Outwater v. Dodge, 6 Wend. 397 27 Pacific Iron Works v. Long Island R. Co., 62 N. Y. 272 107, 120 Paddon v. Taylor, 44 N. Y. 371 129, 130 Paine v. Brown, 37 N. Y. 228 245 Pakas V. HoUingshead, 184 N. Y. 211 258 Palmer v. Hand, 13 Johns. 434 221, 241 Pardee v. Kanady, 100 N. Y. 121 217, 239, 245 Parker v. Baxter, 86 N. Y. 586 100, 126 Parks V. Morris Ax Co., 54 N. Y. 586 203, 272 Pars'.iall v. Eggert, 54 N. Y. 18 3 Parsons v. Loucks, 48 N. Y. 17 23, 24 Parsons v. Sutton, 66 N. Y. 92 260 Partridge v. Rubin, 6 N. Y. S. 657 130 Pascal V. Goldstein, 100 N. Y. S. 1025 76, 87 Passaic Mfg. Co. v. Hoff- man, 3 Daly 495 25, 236 Paul V. Glasgow Corp., 3 Session Cases, 119 75 Paul V. Hadley, 23 Barb. 521 81 Peabody v. Speyers, 56 N. Y. 230 14, 20, 22 Pearse v. Pettis, 47 Barb. 276 129 Pease v. Copp, 67 Barb. 132 196 Pembroke Iron Co. v. Par- sons, S Gray 589 188 People V. Haynes, 14 Wend. 546 106 People V. Walker, 17 N. Y. 502 181 Peoria Grape Sugar Co. v. Turney, 175 111. 631 83 Pequeno v. Taylor, 38 Barb. 375 ; 229 Person v. Stoll, 72 A. D. 141 ; aff'd 174 N. Y. 548 . . 254 Peters v. Elliott. 78 III. 321 171, 172 Petigor V. Ward, 36 Misc. 816 250 Petrie v. Stark, 79 Hun 550 217. 236 Petty V. Fish, 31 Misc. 739 58 Phelan v. Jones, 114 N. Y. S. 9 175, 253^ Philadelphia Whiting Co. v. Detroit Lead Works, 58 Mich. 29 196 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] xxxvn Philbrook v. Eaton, 134 Mass. 398 255 Pierson v. Crooks, 115 N. Y. 539 89, 196, 204 Pierson v. Hoag, 47 Barb. 243 55 Pinckney v. Darling, 3 A. D. 553; aff'd 158 N. Y. 728 101, 102 Pinney v. Hall, 1 Hill 89 . . 103 P. J. Sorg Co. V. Crouse, 88 Hun 246 81 Plumb V. Bridge, 128 A. D. 651 114, 197 Plumb V. Bridge, 142 A. D. 154 258 Plumb V. Hallauer Co., 145 A. D. 20 81, 197, 198, 205 Polenghi v. Dried Milk Co., 92 L. T. (n. s.) 64 86 Pollard V. Reardon, 65 Fed. 848 156 Pollen V. LeRoy, 30 N. Y. 549 179, 236, 251 Pope V. Allis, 115 U. S. 363 51, 195 Pope V. Porter, 102 N. Y. 366 190 Pope V. Terre Haute Car Co., 107 N. Y. 61 ..175, 180 Porter v. Rose, 12 Johns. 209 176 Porter v. Wormser, 94 N. Y.431 15, 16 Porter Mfg. Co. v. Ed- wards, 29 Hun 509 99 Potter Printing Press Co. V. Schreiner, 47 A. D. 531, 100 Poulton V. Anglo-American Oil Co., 27 T. L. R. 38 . . 220 Powell V. Morrell, 121 N. Y. S. 225 200 Powers V. Freeman, 2 Lansing, 127 130 Pratt V. S. Freeman Mfg. Co., lis Wis. 648 236 Preist V. Last, 89 L. T. (n. s.) 33 72 Prentice v. Fargo, 53 A. D. 608; aflf'd 173 N. Y. 592 . . 78 Prentiss Tool Co. v. Schir- mer, 136 N. Y. 305 138 Prested Miners Co. v. Gard- ner, C. A. (1911) 1 K. B. 425 11 Preston v. Smith, 67 111. App. 613 47 Price V. Nevy York, 104 A. D. 198 . . . ." 191 Proctor V. Atlantic Fish Companies, 208 Mass. 351 83 Puflfer V. Reeve, 35 Hun 480 127 Purcell V. Jaycox, 59 N. Y. 288 120 Quick V. Wheeler, 78 N. Y. 300 245 Raabe v. Squier, 148 N. Y. 81 191 Rainbow v. Howkins, 91 L. T. (n. s.) 149 116 Ralph B. Carter Co. v. Fischer, 121 N. Y. S. 614 203, 273 Randall v. Newson, 2 Q. B. D. 102 70 Rankins v. Grupe, 36 Hun 481 14 Rapelye v. Mackie, 6 Cowen 250 92, 102 Raubitschek v. Blank, 80 N. Y. 478 21 Rawls V. Deshler, 3 Keyes 572 126. 162 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] Raymond v. Bearnard, 12 Johns. 274 253 Raymond v. Colton, 104 Fed. 219 44 Raymore Realty Co. v. Pfotenhauer-Nesbit Co., 145 A. D. 163 ... 202, 259, 260 Razey v. J. B. Colt Co., 106 A. D. 103 269 Ready v. J. L. Fulton Co., 179 N. Y. 399 188 Reed v. Randall, 29 N. Y. 358 66, 80, 204, 207 Reed V. Reed, 70 Me. 504 . . 134 Regus V. Moran, 9 N. Y. S. 927 45 Reid V. Macbeth, 90 L. T. (n. s.) 422 98 Reuscher v. Klein, 35 N. Y. Super. Ct. 446 221 Reynolds v. Mayor, 39 A. D. 218 76, 83, 84 Reynolds v. Miller, 79 Hun 113 43 Rice V. Butler, 160 N. Y. 578 6, 8 Rice V. Churchill, 2 Denio 145 179 Richardson v. Levi, 69 Hun 432 200, 202, 272 Ridgley v. Mooney, 16 Ind. App. 362 236 Riendeau v. Bullock, 147 N. Y. 269 249, 250 River Spinning Co. v. At- lantic Mills, 155 Fed. 466 246 Roaring Spring Blank Book Co. V. Lesser, 75 Misc. 617 20 Robert C. White Co. v. Chicago & C. R. R. Co., 87 Mo. App. 330 171 Roby V. Reynolds, 65 Hun 486 202 Rochester Bank v. Jones, 4 N. Y. 497, ..9, 113, 144, 150 Rochester Distilling Co. v. Devendorf, 72 Hun 428.. 130 Rochester Distilling Co. v. Rasey, 142 N. Y. 570 ... . 31 Rodgers v. Niles, 11 Oh. St. 48 70 Rodgers v. Phillips, 40 N. Y. 519 .. 17, 18, 26, 28, 105 Rogers v. Beckrich, 46 A. D. 429 77, 84, 269 Rogers v. Kneeland, 10 Wend. 251 21 Roget V. Merritt, 2 Caines 117 176, 259 Rommel v. Wingate, 103 Mass. 327 187 Root V. French, 13 Wend. 570 130 Rosenthal V. Dessau, 11 Hun 49 241 Rosenthal v. Rambo, 165 Ind. 584 272 Ross V. Mather, 51 N. Y. 108 56 Ross V. Terry, 63 N. Y. 613 166 Routledge v. Worthington Co., 119 N. Y. 592 22 Russell V. Allerton, 108 N. Y. 288 52 Russell V. Carrington, 42 N. Y. 118 35, 120 Russell V. Nicoll, 3 Wend. 112 52 Russell V. Wolflf, 19 Misc. 536 103 Rust V. Eckler, 41 N. Y. 488 203, 270 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] XXXIX Ryan v. Ridley, 8 Com. Cases 105 249 Sage V. Shepard Lumber Co., 4 A. D. 291 ; aff'd 158 N. Y. 672 126 St. Dunstan Soc. v. Picard, 115 N. Y. S. 1079 200 St. Hubert Guild v. Quinn, 64 Misc. 336 57, 244 St. Regis Paper Co. v. Santa Clara Lumber Co., 173 N. Y. 149 251 St. Regis Paper Co. v. Santa Clara Lumber Co., 105 A. D. 341 .... 253, 262 .Sale V. Darragh, 2 Hilt. 184 23 Salisbury v. Stainer, 19 Wend. 159 82, 88 Salter v. Burt, 20 Wend. 205 181 ;Saltus V. Everett, 20 Wend. 267 125, 128 Sands v. Taylor, 5 Johns. 395 89, 235 Sanger v. French, 157 N. Y. 213 14 Sanger v. Waterbury, 116 N. Y. 371 102 Sargent v. Eureka Spund Apparatus Co., 46 Hun 19 130 .Sattler v. Hallock, 160 N. Y. 291 3 .Sawyer v. Dean, 114 N. Y. 469. .113, 175, 196, 235, 236, 239 .Saxe V. Penokee Lumber Co., 159 N. Y. 371 ... 258, 259 Schenectady Stove Co. v. Holbrook, 101 N. Y. 45 . . 188 Scher V. Roher, 34 Misc. 792 100, 177 Schermerhorn v. Talman, 14 N. Y. 93 3 Schryer v. Fenton, 15 A. D. 158 100, 127 Schultz V. Bradley, 57 N. Y. 646 14 Schulze V. Farrell, 142 A. D. 13 244 Schuyler v. Russ, 2 Caines 202 56 Schwab V. Oatman, 198 N. Y. 545 105 Schwab V. Oatman, 56 Misc. 393 127 Schwarting v. Bisland, 4 Misc. 534 6 Schwartzenbach v. Hass, 36 Misc. 806 250 Schwarzer v. Karsh Brew- ing Co., 74 A. D. 383 .... 246 Scott v. Rogers, 31 N. Y. 676 256 Scovil V. Wait, 54 N. Y. 650 254 Scranton v. Clark, 39 N. Y. 220 44, 61 Scully V. Smith, 110 A. D. 88 27 Seitz V. Brewer's Refriger- ating Mach. Co., 141 U. S. 510 57, 83 Seixas v. Woods, 2 Caines 48 66 Selser v. Roberts, 105 Pa. St. 242 90 Sewall V. Fitch, 8 Cowen 215 13, 24 Sexton V. Breese, 135 N. Y. 387 14 Seymour v. Davis, 2 Sandf. 239 16, 24 Digitized by Microsoft® xl TABLE OF CASES CITED. [References are to Pages.] Seymour v. Montgomery, 1 Skilling v. Bellman, 73 Mo. Keyes 463 101 665 162 Sharper v. Wing, 2 Hun 671 7 Slayton v. McDonald, 73 Shaw V. North Pennsyl- Me. 50 44 vania R. Co., 101 U. S. 557 Sloan v. McCarty, 134 144, 152, 156, 157, 167 Mass. 245 122 Shelton v. Pendleton, 18 Sloane v. Van Wyck, 4 Conn. 417 8 Abb. Ct. App. Dec. 250 . . 253 Shepand v. Rice, 15 Daly 532 254 Smalley v. Hamblin, 170 Sheppard v. Earles, 13 Hun Mass. 380 24 651 64 Smalley v. Hendrickson, 29 Sherman v. Barnard, 19 N. J. L. 371 208 Barb. 291 37 Smith v. Brady, 17 N. Y. Sherman v. Willett, 42 N. 173 186 Y. 146 14 Smith v. Briggs, 3 Denio Sherwood v. Reade, 7 Hill 73 52 431 117 Smith v. Clark, 21 Wend. Shields V. Pettie, 4 N. Y. 122 83 3 31, 45, 50, 52 Smith v. Clews, 114 N. Y. Shindler v. Houston, IN. 190 126 Y. 261 26, 27, 28 Smith v. Coe, 170 N. Y. 162 ■ Shipton V. Braltress, quot- 87, 203 ed and commented on in Smith v. Edwards, 29 Hun N. Y. L. J., April 10, 493 106 1912 184 Smith v. Foote, 81 Hun 128 Shrimpton v. Dworsky, 2 • 203, 269, 273 Misc. 123 17 Smith v. Hale, 158 Mass. Shull V. Ostrander, 63 178 272 Barb. 130 55 Smith v. Lynes, 5 N. Y. 41 Shumway v. Rutter, 8 Pick. 100, 127 443 134 Smith v. Milliken, 7 Lans- Shupe V. Collender, 56 ing 336 17 Conn. 489 271 Smith v. New York Cent. Siedenbach v. Riley, 111 N. R. Co., 4 Keyes 180 24 Y. 560 138 Smith v. People, 47 N. Y. Silberman v. Clark, 96 N. 330 154 Y. 522 196 Smith v. Pettee, 70 N. Y. saver V. Connolly, 12 N. Y. 13 235, 237 St. R. 616 246 Smith v. Picket, 7 Ga. 104. . 172 Simon v. Wood, 17 Misc. Smith v. Ryan, 191 N. Y. 607 204 452 7 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] xlt Smith V. Servis, 33 N. Y. St. Rep. 432 56 Smith V. Tracy, 36 N. Y. 79 57 Smith V. Wheeler, 7 Oregon 49 246 Snee v. Prescott, 1 Atk. 250, 223 Societe Anonyme v. Schole- field, 7 Com. Cases 114 . . 184 Soltau V. Gerdau, 119 N. Y. 380 125, 127 Sparks V. Ducas, 123 A. D. 507 43 Spaulding v. Austin, 2 Vt. 555 182 Spears v. Willis, 151 N. Y. 443 262 Spencer v. Cone, 1 Mete. 283 25 Spinney v. Thurber, 33 Hun 448; aflf'd 102 N. Y. 652.. 157 Spotten V. Keeler, 22 Abb. N. C. 105 138 Sprague v. Blake, 20 Wend. 61 29, 81, 204 Spraights v. Hawley, 39 N. Y. 441 125 Stackfleth v. Demuth Glass Mfg. Co., 25 Misc. 482 ... 77 Staiger v. Soht, 116 A. D. 874; aflf'd 191 N. Y. 527 51, 88, 202, 203 Stanley v. Dryer, 70 Misc. 561 .., 176 Stanton v. Small, 3 Sandf. 230 31 Stecker v. Weaver Coal Co. 116 A. D. 772; aff'd 192 N. Y. 556 260 Steinhardt v. Bingham, 182 N. Y. 326 52 Stengel v. Hewit, 37 Misc. 670 246 Stevens v. Brennan, 79 N. Y. 254 130, 284 Stevens v. Wheeler, 27 Barb. 658 ..212, 223, 229, 230 Stevens v. Wilson, 3 Denio 472 127 Stewart v. Stone, 127 N. Y. 500 40, 41 Stimson v. Wrigley, 86 N. Y. 332 139 Stocksdale v. Schuyler, 29 N. Y. St. R. 380; aflf'd 130 N. Y. 674 254 Stockton V. Rogers, 17 Misc. 138 28 Stokes V. Mackay, 147 N. Y. 223 .• 250 Stone V. Browning, 68 N. Y. 598 21, 27, 28 Stone V. Frost, 61 N. Y. 614 38, 272 Stover V. Flack, 41 Barb. 162, aflf'd 30 N. Y. 64 . . . . 14 Strahlheim v. Wallach, 12 Daly 313 241 Straus V. Wessel, 30 Ohio St. 211 Ill Strauss v. Salzer, 109 N. Y. S. 734 7& Strong V. Taylor, 2 Hill 326, 100' Strongitharm v. North Lons- dale Iron Co., 21 T. L. R. 357 73 Stuart V. Manhattan Bath Tub Co. 34 Misc. 165. .44, 205 Studer v. Bleistein, 115 N. Y. 316 .... 56, 67, 82, 197, 205 Stumpp Co. V. Lynber, 84 N. Y. S. 912 57 Sturtevant v. Ballard, 9 Johns. 337 133, 137 Sturtevant v. Orser, 24 N. Y. 538 229, 239 Digitized by Microsoft® xlii TABLE OF CASES CITED. [References are to Pages.] Sumner v. Brown, 25 T. L. R. 745 12, 13 Susman v. Whyard, 149 N. Y. 127 3 Sutton V. Crosby, 54 Barb. 80 103 Sutton V. Wanamaker, 95 N. Y. S. 525 260 Swain v. Schiefifelin, 134 N. Y. 471 273 Swallow V. Emery, 11 Mass. 355 '. 122 Sweet V. Barney, 23 N. Y. 335 156 Sweetman v. Prince, 26 N. Y. 233 61 Swett V. Colgate, 20 Johns. 196 66 Syracuse First Nat. Bank v. New York R. Co., 85 Hun 160 144, 148, 157 Taft V. Travis, 136 Mass. 95 45 Talcott V. Salke, 9 Daly 154, 212 Tallman v. American Ex- press Co., 6 Hun 377 .... 43 Tallman v. Franklin, 14 N. Y. 584 20, 22, 23 Tallman v. Kearney, 3 Thompson & Cook, 412 . . 135 Talmadge v. Lane, 17 Misc. 731 14 Taylor v. Caldwell, 3 B. & S. 826 40 Taylor v. Esselstyn, 62 Misc. 633 191, 244 Taylor v. Great Eastern R. Co., 84 L. T. (n. s.) 770 12, 13, 225 Taylor v. Harnett, 26 Misc. 362 118 Taylor v. Saxe, 134 N. Y. 67 203, 269 Terry v. Wheeler, 25 N. Y. 520 .... 93, 99, 107, 120, 179 Thacher v. Hannahs, 4 Rob- ertson 407 212, 218 Thedford v. Herbert, 195 N. Y. 63 28 Thedford v. Herbert, 135 A. D. 174 180 Thomas v. Stewart, 132 N. Y. 580 48 Thompson v. Ashton, 14 Johns. 316 83 Thurnell v. Balbirnie, 2 M. & W. 786 -47 Ticl nor v. Barley, 72 Misc. 638 81, 204, 269 Tilson V. Terwilliger, 56 N. Y. 273 138 Timken Carriage Co. v. Smith, 123 la. 554 270 Timoney v. Hoppock, 13 Civ. Proc. 361 28 Tipton V. Feitner, 20 N. Y. 423 175, 191 Titus V. Poole, 145 N. Y. 414 58 Tobias v. Lissberger, 105 N. Y. 404 180, 181 Todd V. Gamble, 148 N. Y. 382 250 Toledo First Nat. Bank v. Shaw, 61 N. Y. 283 .. Ill, 127 Tompkins v. Lamb, 121 A. D. 367 200 Tompkins v. Sheehan, 158 N. Y. 617 IS, 18 Townsend v. Allen, 13 N. Y. S. 73 14 Trevor v. Wood, 36 N. Y. 307 19, 20, 23 Digitized by Microsoft® TABLE OF CASES CITED. [References are to Pages.] xliii Truman v. Attenborough, 103 L. T. (n. s.) 218... 97, 128 Tufts V. Griffin, 107 N. C. 47 122, 245 Turl V. Williams Engineer- ing Co., 136 A. D. 710. .56, 84 Tuthill V. Skidmore, 124 N. Y. 148 212, 217, 221, 234, 235, 236 Uhlman v. Day, 38 Hun 298 102 Uhrig V. Williamsburgh City F. Ins. Co., 101 N. Y. 362 47 Underhill v. Van Cortlandt, 2 Johns. Ch. 339 46, 48 Underwood v. Wolf, 131 111. 42S 206 Union Bank v. Rowan, 23 S. C. 339 171 U. S. Reflector Co. v. Rush- ton, 7 Daly 411 28 Vail V. Rice, 5 Van Bracklin Johns. 468 . Van Brocklin 140 N. Y. 70 217, 235, Vandegrift v. neering Co., Van Deusen v. Y. 358 Van Hoozer Barb. 9 . . . . Van Pub. Co. house, 72 A. Van Slyck v. Hun 554 ... N. Y. 155 .. . 258 V. Fonda, 12 78 V. Smeallie, 15, 99, 236, 239, 246, 251 Cowles Engi- 161 N. Y. 435 245, 259 , Rowley, 8 N. 4 V. Cory, 34 32 V. Westing- D. 121 200 Newton, 10 130 Van Woert v. Albany R. Co., 67 N. Y. 538 .... 13, 17 Van Wyck v. Allen, 69 N. Y. 61 67 Van Wyck v. Brasher, 81 N. Y. 260 8 Varley v. Whipp, 1 Q. B. (1900) 513 65 Vaughn Machine Co. v. Lighthouse, 64 A. D. 138 57 Vedder v. Leamon, 70 A. D. 252 43 Vibbard v. Johnson, 19 Johns, n 60, 62 Vickers v. Vickers, L. R. 4 Eq. 529 48 Victoria Paper Mills Co. v. New York Co., 27 Misc. 179 130 Vigers v. Sanderson, 84 L. T. (n. s.) 464 184 Visscher v. Greenbank Al- kali Co., 11 Hun 159 .... 202 Volk V. Olsen, 54 Misc. 227 176 Voorhees v. Earl, 2 Hill 288 270, 272 Voorhis v. Olmstead, 66 N. Y. 113 126 Vought V. Eastern Bldg. Assoc, 172 N. Y. 508 .... 6 Vought V. Williams, 120 N. Y. 253 48 Wadhams v. Balfour, 32 Oregon 313 121, 197 Wadsworth v. Alcott, 6 N. Y. 64 3 Waeber v. Talbot, 167 N. Y. 48 82, 203 Wailing v. Toll, 9 Johns. 141 6 Digitized by Microsoft® div TABLE OF CASES CITED. [References are to Pages.] Wait V. Borne, 123 N. Y. 592 57, 273 Wait V. Green, 36 N. Y. 556, 127 Waldron v. Stevens, 12 Wend. 100 176 Walker v. Mitchell, 25 Hun 527 127 Wallace v. Morss, 5 Hill 391 6 Wallis V. Pratt, H. L. (1911) W. N. 117 265 Wallis V. Russell, 2 K. B. (1901) 585 72, 267 Walrath v. Ingles, 64 Barb. 265 44 Walrath v. Richie, 5 Lans- ing 362 18 Wamsley v. Horton, 11 Hun 317 31 Wanamaker v. Weaver, 176 N. Y. 75 6 Ward V. Hasbrouck, 169 N. Y. 407 21 Ward V. Shaw, 7 Wend. 404 102 Warden v. Marshall, 99 Mass. 305 200 Warder v. Fisher, 48 Wis. 338 270 Waring v. Mason, 18 Wend. 425 86,88, 203 Warren Chemical Co. v. Holbrook, 118 N. Y. 586 24 Wart V. Hoose, 65 Misc. 462 78 Washburn v. Rainier Co., 130 A. D. 42 57, 253 Washburn Crosby Co. v. Boston & Albany R. Co., 180 Mass. 252 156 Washington Hydraulic Press Brick Co. v. Sin- nott, 92 N. Y. S. 504 ... . 269 Waterman v. Meigs, 4 Cush. 497 25 Waters Patent Heater Co. V. Tompkins, 14 Hun 219 103 Watts V. Friend, 10 Barn. & C. 446 16 Waxelbaum v. Schloss, 131 A. D. 826 19 Weaver v. Barden, 49 N. Y. 286 130 Webster v. Zielly, 52 Barb. (N. Y.) 482 .... 14, 18, 21 Wegner Mach. Co. v. Tay- lor, 143 A. D. 704 200 Weiner v. Smith, 95 L. T. (n. 3.) 438 97 Weir v. Hudnut, 115 Ind. 525 19 Wells V. Alexandre, 130 N. Y. 642 188 Welsh V. Gossler, 89 N. Y. 540 253 Wenz V. McCann, 107 A. D. 557 6 Westcott V. Thompson, 18 N. Y. 363 3 Western Transp. Co. v. Marshall, 4 Abb. Dec. 575 126, 162 Westfall V. Peacock, 63 Barb. 209 236, 246, 253 Wheelhouse v. Parr, 141 Mass. 593 106 White V. Dodds, 42 Barb. 554 254 White V. Gray, 96 A. D. 154, 245 White V. Knapp, 47 Barb. 549 14 White V. Miller, 71 N. Y. 118 67, 77. 273 Digitized by Microsoft® TABLE OF CASES CITED. xlv [References are to Pages.] White V. Schweitzer, 147 A. D. 544 106, 193, 200 White V. Solomon, 164 Mass. 516 245 White Furnace Co. v. C. W. Miller Transfer Co., 131 A. D. 559 271 Whitehorn v. Davison, C. A. (1911) 1 K. B. 463 ... 128 White Mfg. Co. v. La- Vergne Refrigerating Mach. Co., 84 N. Y. S. 858 205 Whitlock V. Hay, 58 N. Y. 48^T 18, 160 Whitman v. Jacobson, 119 N. Y. S. 246 57, 76 Whitney v. Heywood, 6 Cush. 82 61 Whitney v. McLean, 4 A. D. 449 114, 197, 235 Whitney v. National Bank, 45 N. Y. 303 166 Wilber v. Leonard, 56 Hun 364 239 Wilcox Silver Plate Co. v. Green, 72 N. Y. 17 17 Wilkes V. Ferris, 5 Johns. 335 99, 179 Wilks V. Davis, 3 Merivale 507 48 Williams v. Merle, 11 Wend. 80 125 Williams v. Montgomery, 148 N. Y. 519 262 Williamson v. Macpherson, 6 Sessions Rep. 863 73 Williamson v. Mason, 12 Hun 97 131 Wilmerding v. Feldman, SO Misc. 341 52 Wilmot V. Hurd, 11 Wend. 584 55 Wilson V. Lewiston Mill Co., 150 N. Y. 314 .... 13, 20 Wilson V. Rushville Min. Co., 142 A. D. 297.... 200, 207 Wilson V. Western Fruit Co., 11 Ind. App. 89 .... 194 Wiltse V. Barnes, 46 Iowa 210 197 Windmuller v. Pope, 107 N. Y. 674 249, 250 Withers v. Lys, Holt N. P. 20 223 Wolf v. Dietzsch, 75 111. 205, 200 Wolf V. Di Lorenzo, 21 Misc. 521 122 Wolf V. Di Lorenzo, 22 Misc. 323 38 Wolf V. Michael, 21 Misc. 86 61 Wolfenden v. Wilson, 33 Upp. Can. Q. B. 442 .... 25 Wolfert V. Caledonia Springs Ice Co., 195 N. Y. 118 190 Wood V. Anthony, 79 A. D. Ill 274 Wood V. Shultis, 4 Hun 309 15 Woodburn v. Chamberlin, 17 Barb. 446 130 Woodford v. Patterson, 32 Barb. 630 14, J07 Wood Mower Co. v. Thayer, 50 Hun 516... 78, 81 Digitized by Microsoft® xlvi TABLE OF CASES CITED [References are to Pages.] Woolf V. Hamburger, 129 A. D. 883 251 Woolner v. Hill, 93 N. Y. 576 258 Wooster v. Sage, 67 N. Y. 67 103 Wren v. Holt, [1903] 1 K. B. 610 74, 79 Wright V. Bank of Metrop- olis, 110 N. Y. 237 180, 256 Wright V. Weeks, 25 N. Y. 153 20, 21, 22 Wyckoff V. Vicary, 75 Hun 409 129 Yates V. Lyon, 61 N. Y. 344 6 Yenni v. McNamee, 45 N. Y. 614 159, 162 Zabriskie v. Central Ver- mont R. Co., 131 N. Y. 72 82, 88, 204 Ziehen v. Smith, 148 N. Y. 558 175 Zimmerman v. Timmer- man. 193 N. Y. 486.. 181, 259 Digitized by Microsoft® COMPARATIVE TABLE OF SECTION NUMBERS. New York American English Personal Uniform Sale of Property Sales Goods 1-aw. Act. Act. 82 1 1 83 2 2 84 3 3 85 4 4 86 5 5 87 6 * 88 7 6 89 8 7 90 9 8 91 10 9 92 11 11 93 12 * 94 13 12 95 14 13 96 15 14 'il 16 15 98 17 16 99 18 17 100 19 18 101 20 19 102 21 58 103 22 20 104 23 21 105 24 23 106 25 25 107 26 * 108 27 * 109 28 * 110 29 * 111 30 * 112 31 * 113 32 T 114 33 * 115 34 * 116 35 * 117 36 * 118 37 * 119 38 * 120 39 * New York American English Personal Uniform Sale of Property Sales Goods Law. Act. Act. 121 40 « 122 41 27 123 42 28 124 43 •29 125 44 30 126 45 31 127 46 32 128 47 34 129 48 35 130 49 JF 131 50 36 132 51 37 133 52 38 134 53 39 135 54 41 136 55 42 137 56 43 138 57 44 139 58 45 140 59 46 141 60 48 142 61 * 143 62 47 144 63 49 145 64 50 146 65 * 147 66 * 148 67 51 149 68 52 ISO 69 S3 151 70 54 152 71 55 153 72 57 154 73 61 (2) 155 75 61 (4) 156 76 62 157 * * 158 * + * No corresponding section. DigitizecrBy Microsoft® Digitized by Microsoft® CHAP. 571. AN ACT to amend the personal property law, in relation to sales of goods. Became a law June 30, 1911, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section 1. Article five of chapter forty-five of the laws of nineteen hundred and nine, entitled " An act relating to personal property, constituting chapter forty-one of the consolidated laws," and sections eighty and eighty-one of such chapter, are hereby respectively renumbered article six and sec- tions one hundred and sixty-five and one hundred and sixty-six; and such chapter is hereby amended by adding thereto a new article five to read as follows : (xlix) Digitized by Microsoft® Digitized by Microsoft® THE SALE OF GOODS IN NEW YORK. PART I. FORMATION OF THE CONTRACT. CHAPTER I. DEFINITIONS AND GENERAL PRINCIPLES. § 82.* CONTRACTS TO SELL AND SALES. 1. A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price. 2. A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a con- sideration called the price.' 3. A contract to sell or a sale may be absolute or con- ditional.* 4. There may be a contract to sell or a sale between one part owner and another. Effect of Section. This section is obviously definitive :and declaratory of the common law. *The legislature incorporated the Sales Act into the New York Personal Property Law as sections 82 to 1S8, inclusive. The following quotation showing the history of the Sales Act appears in the booklet entitled "American Uniform Commercial Acts," Bogerf s s&i^^jtjzed by Microsoft® BOGERT'S NEW YORK SALES ACT. Contracts to Sell and Sales. English Act. This section corresponds to section 1 of the Sale of Goods Act. The differences are immaterial except (1) that the English act uses the term "contract of sale" to include both contract to sell and sale, whereas the American act has discarded that term, and (2) that the English act requires the price to be a money consid- eration, whereas the American act classes barter with sale. See post, sec. 90. For the text of the English act sec appendiic. 1 Definitions. Sale and Contract to Sell. The definitions here given are fundamental to an understanding of the act. Sales (often called at common law "sales in praesenti" or "executed sales") and contracts to sell (spoken of also at common law as "executory sales" or "execu- published by the Commissioners on Uniform State Laws : "The iirst tentative draft of the Uniform Sale Act was prepared in 1902-3, by Professor Samuel Williston of the Harvard Law School, at the request of the Commissioners of Uniform Laws in National Confer- ence. -It was printed in the summer of 1903 and distributed with a request for criticisms. Some were received, and in the light of these a second draft was presented to the Commissioners at their meeting at St. Louis, September 22, 23 and 24, 1904. The draft was then gone over, section by section, by the Commissioners. Doubtful points and changes in wording were discussed and voted upon. The draft was then recommitted to the Committee on Commercial Law, with instruc- tions to embody the changes adopted by the Commissioners and to pre- sent a third tentative draft at the meeting of the Commissioners in August, 1905. A third draft was presented, in accordance with these instructions, at the meeting of the Commissioners at Narragansett Pier in August 1905. This draft included for the first time a number of sections on documents of title (Sections 27-40 of the Act as finally adopted). Because of these sections, it was thought best once more to recommit the draft. At the meeting of the Conference in St. Paul in August 1906. the final draft was adopted and recommended to the legislatures of the several states for passage." The Act was adopted in 1907 by Connecticut (Acts of 1907, c. 212), Arizona (Laws of 1907, c. 99), and New Jersey (Laws of 1907, c. 132) ; in 1908 by Massachu- setts (Acts of 1908, c. 237), Rhode Island \Laws of 1908, c. 1548), and Ohio (Laws of 1908, p. 413) ; in 1910 by Maryland (Laws of 1910, c. 346) ; and in 1911 by Wisconsin (Laws of 1911, c. 549) and New York (Laws oPm^^ ^P^rOSOft® DEFINITIONS AND GENERAL PRINCIPLES. 3 § 82. Contracts to Sell and Sales. .tory contracts of sale") are carefully distinguished throughout. For similar definitions see Schermerhorn v. Talman, 14 N. Y. 93, 117; Madison Avenue Baptist Church v. Oliver St. Baptist Church, 46 N. Y. 131, 139; Edwards v. Farmers' F. Ins. Co. 21 Wend. (N. Y.) 467, 493, 494; Barber Asphalt Paving Co. v. Standard Asphalt Co. 39 App. Div. 617, 623, 58 N. Y. S. 405. "In determining the true character of a contract of sale, as exe- cuted or executory, the question must always be, whether the intention was to vest in the purchaser an immediate and absolute title to the thing sold, without reference to the payment of the price, or whether the delivery of the thing, and the payment of the price, were to be simultaneous acts, for in this last case, it is certain that, until delivery, title remains in the seller." Kelley v. Upton, 5 Duer (N. Y.) 336, 340. For cases where the same question was discussed, see Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Anderson v. Read, 106 N. Y. 333, 13 N. E. 292; Coplay Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. 335. Similar Transactions Distinguished from Sales. Bailment. Where a contract is made with a manufacturer to deliver to him raw materials to be returned manufactured, the contract is one of bailment and not of sale. Foster v. Pettibone, 7 N. Y. 433. The fundamental distinction between bailment and sale is that in the former the specific thing is to be delivered back, while in the latter money or goods of equal value are to be returned. Norton v. Woodruff, 2 N. Y. 153. For cases discussing the question, see Mallory v. Willis, 4 N. Y. 76; Westcott V. Thompson, 18 N. Y. 363; Mack v. Snell, 140 N. Y. 193, 35 N. E. 493, 37 Am. St. Rep. 534; Sattler v. Hallock, 160 N. Y. 291, 54 N. E. 667, 46 L.R.A. 679, 73 Am. St. Rep. 686; Marsh v. Titus, 3 Hun (N. Y.) 550; Smith v. Clark, 21 Wend. (N. Y.) 83, 34 Am. Dec. 213. Parol evidence is admissible to show an apparent bail- ment to be a sale. Wadsworth v. AUcott, 6 N. Y. 64. Concerning the effect of the delivery of grain to a warehouseman and his duties toward it, see Gen. Bus. Law, sec. 109. Chattel Mortgage and Pledge. For discussions of transactions claimed to be near the border line between a transfer of goods as security and an absolute transfer, see Parshall v. Eggert, 54 N. Y. 18; Coe v. Cassidy, 72 N. Y. 133; Blake v. Corbett, 120 N. Y. 327, 24 N. E. 477; Brennan v. Crouch, 125 N. Y. 763, 26 N. E. 620 ; Susman v. Whyard, 149 N. Y. 127, 43 N. E. 413. Agency to Sell. See Elgin First Nat. Bank v. Schween, 127 111. 573, 20 N. E. 681, 11 Am. St. Rep. 174; Gindre v. Kean, 7 Misc. 582, 28 N. Y. S. 4; Ameri- can Seeding Mach. Co. v. Stearns, 109 App. Div. 192, 95 N. Y. S. 830. Agency to Buy. Moors V. Kidder, Wf^Bz^ % Wl^O^oM' Keswick v. Rafter, 35 BOGERT'S NEW YORK SALES ACT. § 82. Contracts to Sell and Sales. App. Div. 508, 54 N. Y. S. 850, affirmed 165 N. Y. 653, 59 N. E. 1124. Gift. Noble V. Smith, 2 Johns. (N. Y.) 52, 3 Am. Dec. 399; Van Deusen V. Rowley, 8 N. Y. 358. Barter. Apparently under the common law no distinction was made between sales and exchanges. Hudson Iron Co. v. Alger, 54 N. Y. 173. Sec- tion 90, post, expressly includes exchanges within the purview of the act. * Conditional Sales. This subdivision obviously states an elemen- tary principle of the law of contract. As to sales in which passing of title is conditioned on payment, see Pers. Prop. Law, sections 62-67 (printed in appendix). These are the transactions commonly referred to as "conditional sales" and are not touched upon directly in the Sales Act. As to "pure" or "suspensory" conditions and the "implied" conditions of the common law, see post, section 92 et seq. Digitized by Microsoft® CHAPTER 11. CAPACITY OF THE PARTIES. § 83. CAPACITY; LIABILITIES FOR NECES- SARIES. Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property.* Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompe- tent to contract, he must pay a reasonable price there- for.* Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and to his actual requirements at the time of delivery.* Effect of Section. This section is declaratory of the common law. The Commissioners on Uniform State Laws in their briefly annotated pamphlet entitled "American Uni- form Commercial Acts" state regarding this section (page 72) : "This section states the prevailing, though not wholly uniform, doctrine of the existing law. Mechem on Sales, § 122 et seq." English Act. Section 2 of the Sale of Goods Act is practically identical. 1 Capacity. No attempt is here made to deal exhaustively with the subject of the rights and liabilities of persons under disability, since that subject is one in the law of Persons, not Sales. The cases cited below are offered merely as suggestive of the general rules connected with incompetent persons. Corporate Contracts. In this connection it may be relevant to call attention to the New Digitized by Microsoft® BOGERT'S NEW YORK SALES ACT. § 83. Capacity; Liabilities for Necessaries. York doctrine that where a contract with a corporation is executed, the corporation "is estopped from asserting its own wrong and cannot be excused from payment upon the plea that the contract was beyond its power." Vought v. Eastern Bldg. Assoc, 172 N. Y. 508, 65 N. E. 496, 92 Am. St. Rep. 761. On corporate contracts see also Jemison v. Citi- zens' Sav. Bank, 122 N. Y. 135, 25 N. E. 264, 9 L.R.A. 708, 19 Am. St. Rep. 482. Married Women. On the capacity of married women to bind their husbands by im- plied agency in the purchase of necessaries, see Wenz v. McCann, 107 App. Div. 557, 95 N. Y. S. 462; Schwarting v. Bisland, 4 Misc. 534, 24 N. Y. S. 700. This implied agency does not extend to the borrow- ing of money to buy necessaries (Anderson v. CuUen, 16 Daly (N. Y.) 15, 8 N. Y. S. 643), nor to cases where the husband has furnished the wife with sufficient necessaries or with money to buy them (Oatman v. Watrous, 120 App. Div. 66, 105 N. Y. S. 174; Wanamaker v. Weaver, 176 N. Y. 75, 68 N. E. 135, 65 L.R.A. 529, 98 Am. St. Rep. 621), nor to cases where the wife is living separate from her husband and there is no evidence that he has not furnished her with necessaries (Hass V. Brady, 49 Misc. 235, 96 N. Y. S. 449). 2 Infants, Lunatics and Drunkards. An infant is liable for neces- saries furnished him, and no express promise is necessary to enable the seller to recover. Gay v. Ballou, 4 Wend. (N. Y.) 403, 21 Am. Dec. 158. But an infant does not bind himself to pay more than a reasonable value by an agreement to do so. Baum v. Stone, 12 N. Y. Wkly. Dig. 353. "An infant who lives with, and is maintained by, her father; can- not bind herself for necessaries." Wailing v. Toll, 9 Johns. (N. Y.) 141. An infant is liable in tort for fraudulently concealing his age and representing that he is a person fit to be trusted. Wallace v. Morss 5 Hill (N. Y.) 391. Contracts Voidable. The contracts of an infant are voidable, not void. They must, if executory, be shown to have been ratified after attainment of majority, in order to be enforceable. If executed, they will be deemed ratified, unless disaffirmed by the infant before he becomes of age, or within a reasonable time thereafter. Beardsley v. Hotchkiss, 96 N. Y. 201. The infant's privilege of avoiding his contracts is personal. Yates v. Lyon, 61 N. Y. 344. But the heirs at law of an infant may disaffirm his contracts. O'Rourke v. Hall, 38 App. Div. 534, 56 N. Y. S. 471. Duty to Place in Statu Quo. Where an infant disaffirms a contract, he must restore to the other party what he received thereunder. Mutual Milk Co. v. Prigge, 112 App. Div. 652, 98 N. Y. S. 458. And he must account for the value of the deterioration and use of property of which he has had posses- sion. Rice V. Butler, 160 N. Y 578, 55 N. E. 275, 47 L.R.A. 303, 7i Am Digitized by Microsoft® CAPACITY OF THE PARTIES. § 83. Capacity; Liabilities for Necessaries. St. Rep. 703. But if he has wasted the consideration received by him, he may nevertheless disaffirm the contract and recover the property transferred by him, without restoring anything to the other party. Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233. Disaffirmance. The right to disaffirm continues during minority and a reasonable time thereafter. Chapin v. Shafer, 49 N. Y. 407. "A ratification of an infant's contract should be something more than a mere admission to a stranger that such a contract existed; there should be a promise to a party in interest or his agent, or at least an explicit admission of an existing liability from which a promise may be implied." Goodsell V. Myers, 3 Wend. (N. Y.) 479, 482; Bigelow v. Grannis, 2 Hill (N. Y.) 120. As to the power of an infant to avoid a sale after the buyer has transferred the property to a bona fide purchaser for value, see section IDS, post. Insanity. "Insane persons require support and their contracts, expressed or im- plied, for the necessaries of life, may be enforced." Bicknell v. Spear, 38 Misc. 389, 390, 77 N. Y. S. 920. A lunatic's estate is liable for necessaries furnished to him by a grocer who did not know that a committee had been appointed. Sharp- er V. Wing, 2 Hun (N. Y.) 671. Where the insane person has had the benefit of the agreement and there was no knowledge of the insanity and no unfairness, the contract is valid. Mutual L. Ins. Co. v. Hunt, 79 N. Y. 541. "A lunatic is not absolutely disqualified from making a contract ; i= * * There is a strong analogy between a lunatic and an infant, in relation to their power to contract; either can oblige himself for necessaries, and the law provides for each a formal pro- cess by which to avoid their agreements." Ingraham v. Baldwin, 9 N. Y. 45, 48. Judicially Declared Incompetents. The contracts of a person of unsound mind who has not been ju- dicially declared incompetent are voidable, not void. Smith v. Ryan, 191 N. Y. 452, 455, 14 Ann. Cas. 505, 84 N. E. 402, 19 L.R.A.(N.S.) 461, 123 Am. St. Rep. 609. "The law is well settled that a lunatic whose lunacy has been judicially determined and for whom a com- mittee had been appointed, is incapable of entering into any contract, and that any contract which he may assume to make while in that situ- ation is absolutely void." Carter v. Beckwith, 128 N. Y. 312, 316, 28 N. E. 582. As to what is insanity sufficient to affect the validity of a contract, see Aldrich v. Bailey, 132 N. Y. 85, 30 N. E. 264. Idiots. "A serious distinction has always been recognized between lunatics Digitized by Microsoft® BOGERT'S NEW YORK SALES ACT. § 83. Capacity ; Liabilities for Necessaries. and idiots. The one had lucid intervals, the other no power of mind whatever." Bicknell v. Spear, 38 iviisc 389, 391, 11 N. Y. S. 920. As to idiots from, birth, see Barnes v. Hathaway, 66 Barb. (N. Y.) 452. Drunkards. "A drunkard is not incompetent like an idiot or one generally in- sane. He is simply incompetent upon proof that at the time of the act challenged his understanding was clouded or his reason dethroned by actual intoxication." Van Wyck v. Brasher, 81 N. Y. 260, 262. 3 What Are Necessaries? "The common law defines necessaries to consist only of necessary food, drink, clothing, washing, physic, in- struction, and a competent place of residence." Shelton v. Pendleton, 18 Conn. 417, 422. Board, lodging, schooling, clothing and physician's services are necessaries when they are suitable to the condition of the infant. Gay v. Ballou, 4 Wend. (N. Y.) 403, 21 Am. Dec. 158. The term "necessaries" does not include a house (Allen v. Lardner, 78 Hun (N. Y.) 603, 29 N. Y. S. 213), nor a bicycle (Rice v. Butler, 160 N. Y. 578, 55 N. E. 275, 47 L.R.A. 303, 73 Am. St. Rep. 703). Digitized by Microsoft® CHAPTER HI. FORMALITIES OF THE CONTRACT. § 84. FORM OF CONTRACT OR SALE. Sub- ject to the provisions of this article and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties. Effect of Section. This section is a declaration of an elementary rule of the common law. "A sale by parol, of personal property, is valid, if not within the statute of frauds." Rochester Bank v. Jones, 4 N. Y. 497, 503, 55 Am. Dec. 290. "Independently of the statute, any words importing a bargain, whereby the owner of a chattel signi- fies his willingness and consent to sell, and whereby another person shall signify his willingness and consent to buy it, in prccsenti, for a specified price, w.ould be a sale and trans- fer of the right to the chattel." De Fonclear v. Shottenkirk, 3 Johns. (N. Y.) 170, 174. That the evidence of the contract may be verbal or written or arise from acts is obvious. English Act. This section is copied very closely from section 3 of the Sale of Goods Act. 9 Digitized by Microsoft® 10 BOGERT'S NEW YORK SALES ACT. § 85. Statute of Frauds. § 85. STATUTE OF FRAUDS. 1. A contract to sell or a sale * of any goods or choses in action ^ of the value of fifty dollars or upwards ^ shall not be enforce- able by action * unless the buyer shall accept part oi the goods or choses in action so contracted to be sold or sold, and actually receive the same,' or give some- thing in earnest to bind the contract, or in part pay- ment,* or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.' 2. The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for deliv- ery, or some act may be requisite for the making or completing thereof, or rendering the same fit for de- livery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's busi- ness, the provisions of this section shall not apply.' 3. There is an acceptance of goods within the mean- ing of this section when the buyer, either before or after delivery of the goods, expresses by words or con- duct his assent to becoming the owner of those specific goods.® Effect of Section. The Statute of Frauds relating to sales of personal property in force prior to the adoption of the Sales Act read as follows: "Sec. 31. Agreements required to be in writing. Every agreement, promise or undertaking is void, unless it or some note or memoran- dum thereof be in writing, and subscribed by the party to Digitized by Microsoft® FORMALITIES OF THE CONTRACT. 11 S 85. Statute of Frauds. be charged therewith, or by his lawful agent, if such agree- ment, promise or undertaking : * * * 6. Is a contract for the sale of any goods, chattels or things in action for the price of fifty dollars or more, and the buyer does not accept and receive part of such goods, or the evidences, or some of them, of such things in action; nor at the time, pay any part of the purchase money." (Formerly Pers. Prop. Law, sec. 31; paragraph 6 repealed by Sales Act). The changes worked by the Statute of Frauds embodied in the Sales Act may be summarized as follows : ( 1 ) the memorandum need only be signed, not subscribed; (2) "goods," the subject of contracts within the statute, include "things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale" (standing trees and fructus naturales) ; (3) accept- ance may be shown by words or conduct, rather than solely by conduct; (4) part payment need no longer be at the time of the contract; (5) a contract to deliver goods to be manufactured or procured is a sale of goods, rather than a contract for work and labor, unless the goods are made upon special order. For elaborations of the significance of these changes and for suggestions as to minor formal changes, see the notes below. English Act. The Statute of Frauds laid down in Sec- tion 4 of the Sale of Goods Act is followed in the American act, except for the addition to the American act of the last clause of subdivision 2 and for the complete alteration of the definition of acceptance in subdivision 3. The corresponding provisions of the Sale of Goods Act have been several times construed. The clause of the- Statute of Frauds relating to contracts not to be performed within one year applies to contracts to sell goods. Prested Miners Co. v. Gardner, [1911] 1 K. B. 425. Even though the contract of sale be unenforceable be- Digitized by Microsoft® 12 BOGERT'S NEW YORK SALES ACT. § 85. Statute of Frauds. cause not complying with the statute, the title to the goods passes, if the parties intended it to. "The contract is good. The only effect of the nonfulfilment of the statutory con- ditions is that it is unenforceable. And, the contract be- ing good, all the legal consequences of a contract follow; so that, if the contract is for the sale of specific goods, the property in the goods passes to the buyer." Taylor v. Great Eastern R. Co., [1901] 1 K. B. 774, 84 L. T. N. S. 770, 77Z. There is not sufficient part payment to make the con- tract enforceable, when the parties merely agree that the seller shall credit the buyer with the amount of a previous overpayment. Norton v. Davison, [1899] 1 O. B. 401, 80 L. T. N. S. 139. The acceptance and receipt by the seller of bags sent by the buyer as receptacles for potatoes sold, does not consti- tute part payment or earnest so as to make the contract enforceable under the statute. Sumner v. Brown, 25 Times L. Rep. 745. An oral contract, unenforceable under the statute, is not rendered enforceable against the seller by a document signed by him amounting to a refusal to sign a memorandum sub- mitted by the buyer unless words were introduced into the memorandum showing that the real seller of the goods was a third party. Re Cox, 96 L. T. N. S. 719. A memorandum signed by the buyer in a note book, which does not contain the name of the seller on the sheet where the buyer's name was signed, but which contains the seller's name stamped on the cover, is sufficient to bind the buyer under the statute. Jones v. Joyner, 82 L. T. N. S 768. Where an oral contract is made for the sale of potatoes and the buyer sends by rail bags for the receipt of the pota- toes, the delivery of which bags the seller acknowledges bv Digitized by Microsoft® ^ ^ FORMALITIES OF THE CONTRACT, 13 § 85. Statute of Frauds. railway delivery note, there is no memorandum of the con- tract sufficient to make the contract enforceable. Sumner V. Brown, 25 Times L. Rep. 745. Because of the great difference between the American and English theories of acceptance, the following cases on that subject are not deemed deserving of elaboration, but are cited for the sake of completeness : Abbott v. Wolsey, [1895] 2 Q. B. 97, 72 L. T. N. S. 581; Taylor v. Great Eastern R. Co., [1901] 1 K. B. 774, 84 L. T. N. S. 770. iWhat Contracts Are Within Statute. The statute relates only to contracts made on and after September 1, 1911 (post, section 157). For an attempt to make it apply to contracts made previous to the pas- sage of the act, on the theory that it relates solely to the remedy, see a reference to an unnamed and unreported Massachusetts case under the act at page 1042 of Williston on Sales. Apparently the New York legislature intended to meet such a contention by the insertion of section 157 into the law, . for there is no corresponding section in the uniform act. Executed and Executory. The statute applies to executory as well as executed contracts. Jack- son V. Covert, 5 Wend. (N. Y.) 139; Sewall v. Fitch, 8 Cow. (N. Y.) 215, One Year Clause. The Sales Act does not affect that provision of the Statute of Frauds requiring a contract not to be performed within one year to be exe- cuted with certain formalities. Brown v. Frederick J. Quinby Co. 204 Mass. 206, 90 N. E. 586. Under the old statute a contract of sale, if not to be performed within one year, was unenforceable under the one year section of the statute. Van Woert v. Albany R. Co. 67 N. Y. 538. Conflict of Laws. Where a contract of sale is made between citizens of different states, the question as to what Statute of Frauds applies "must be determined with reference to the facts and circumstances surrounding the parties in each case presented, and the intention of the parties so far as it is disclosed must control." The place where the contract is consum- mated is not wholly determinative. So where the seller's agent so- licited a sale in Maine, the place of the buyer's residence, and a sale was later closed by letters and telegrams, the seller doing business in New York City, the statute of Maine will control. Wilson v Lewis- ton Mill Co. 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680. For Digitized by Microsoft® 14 BOGERT'S NEW YORK SALES ACT. § 85. Statute of Frauds. other cases on conflict of laws, see Johnson v. Brooks, 93 N. Y. 337; Townsend v. Allen, 59 Hun (N. Y.) 622, mem., 13 N. Y. S. 73; Inter- state Steamboat Co. v. Syracuse First Nat. Bank, 87 Mun (N. Y.) 93, 33 N. Y. 966. Sale and Other Contract. A contract is within the statute although it includes a promise to do an additional act besides effect the sale, as, for example, to sell and to furnish pasture (Harman v. Reeve, 18 C. B. 587, 86 E. C. L. 587, 25 L. J. C. P. 257), or to sell and pay freight (Irvine v. Stone, 6 Cush. (Mass.) 508). Modification of Sale. An agreement to modify an earlier agreement for the sale of goods is within the Statute of Frauds. Schultz v. Bradley, 57 N. Y. 646; Clark V. Fey, 121 N. Y. 470, 24 N. E. 703. Contract to Retake Goods. A contract to take back goods, if part of the original contract, is simply an agreement to rescind and not a separate sale (Johnston v. Trask, 116 N. Y. 136, 22 N. E. 377, 5 L.R.A. 630, 15 Am. St. Rep. 394), but if the agreement to resell is made independently of the first bar- gain it is within the Statute of Frauds as a separate transaction (Ran- kins v. Grupe, 36 Hun (N. Y.) 481; Blanchard v. Trim, 38 N. Y. 225). Partnership Agreements. Partnership agreements, even though they relate to the sale of goods, are not within the statute. Stover v. Flack, 30 N. Y. 64; Coleman v. Eyre, 45 N. Y. 38; Sanger v. French, 157 N. Y. 213, 51 N. E. 979. The following agreements have been held not to be sales within the meaning of the statute: a conditional sale (Alexander v. Kellner, 131 App. Div. 809, 116 N. Y. S. 98) ; an agreement to raise a crop of potatoes for another (Talmadge v. Lane, 17 Misc. 731, 41 N. Y. S. 413) ; an agreement to deliver goods in payment of a pre-existing debt (Woodford v. Patterson, 32 Barb. (N. Y.) 630) ; the delivery of personal property on approval (White v. Knapp, 47 Barb. (N. Y.) 549). 2 "Goods or Choses in Action." What Are Goods? The term "goods" includes gold when treated as a commodity (Peabody v. Speyers, 56 N. Y. 230) ; ice, according to the more modern theory (Higgins v. Kusterer, 41 Mich. 318, 2 N. W. 13, 32 Am. St. Rep. 160) ; growing crops (Sherman v. Willett, 42 N. Y. 146; Sexton v. Breese, 135 N. Y. 387, 32 N. E. 133; Austin v. Sawyer, 9 Cow. (N. Y.) 39) ; hops (Webster v. Zielly, 52 Barb. (N. Y.) 482)"; and fixtures to be carried away by the buyer (Durkee v. Powell, 75 App. Div. 176, 77 N. Y. S. 368; Lawrence v. Woods, 4 Bosw. (N. Y.) 354). Trees and Fructus Naturales. Formerly trees and fructus nat'.irales were considered interests in real property ( GreeiP^'fe§fiftft)C#¥^®(§e%. Y.) 550), but appar- ently the definition of "goods" given in section 156 of the Personal FORMALITIES OF THE CONTRACT. 15 § 85. Statute of Frauds. Property Law alters the law in that respect. The term is there de- fined as follows : 'Goods' include all chattels personal other than things in action and money. The term includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale." Tiffany in his work on Sales at page 76 makes the following note concerning this definition : "So far as concerns fructus naturales, buildings sold as materials and fixtures, which are agreed to be severed before sale, this declares what has been the general rule. The provi- sion that these things are goods when agreed to be severed "under the contract of sale" seems equivalent, as has been pointed out, to declar- ing that under a contract of sale they are to be deemed goods, wheth- er the property is to pass before or after severance, and changes the law with regard to buildings sold as materials and fructus naturales." But even at common law, the sale of cord wood to be delivered by the seller is a sale of goods (Killmore v. Howlett, 48 N. Y. 569), and the taker of trees under an unenforceable contract is liable to the seller in quasi-contract for their reasonable value (Wood v. Shul- tis, 4 Hun (N. Y.) 309). Illustrative Cases. The following articles of property have been held to be realty, rather than goods : manure in heaps and fencing material temporarily detached (Goodrich v. Jones, 2 Hill (N. Y.) 142) ; hop poles (Bishop v. Bishop, 11 N. Y. 123, 62 Am. Dec. 68) ; brick in the ruins of a building (Mey- ers V. Schemp, 67 111. 469) ; improvements upon land (Lower v. Win- ters, 7 Cow. (N. Y.) 263). But the sale of a house to be removed from its foundations and delivered on rollers is not a sale of realty, but of personalty. Long v. White, 42 Ohio St. 59. Glioses in Action. Under the old statute the following choses in action have been held to be within the scope of the Statute of Frauds : corporate stock (Tompkins v. Sheehan, 158 N. Y. 617, 51 N. E. 502) ; interest in a part- nership (Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. 415) ; bonds (Porter v. Wormser, 94 N. Y. 431); an unpatented device (Jones v. Reynolds, 120 N. Y. 213, 24 N. E. 279) ; rights under a contract (Dus- tan V. McAndrew, 44 N. Y. 72) ; a cause of action (Greenberg v. David- son, 39 Misc. 796, 81 N. Y. S. 345). 3 "Value of Fifty Dollars." The uniform act places this amount at $500, but the New York legislature retained the old standard. In Ohio the amount is $2,500, in Connecticut $100 and in Arizona, Mary- land, Massachusetts, New Jersey, Rhode Island, and Wisconsin $500, these being the states which have at present adopted the Sales Act. Price or Value. The new statute has changed the word "price" to "value."' The Digitized by Microsoft® 16 BOGERT'S NEW YORK SALES ACT. § 85. Statute of Frauds. value of the goods may be unknown at the time of the making of the contract, as where a contract is made to sell the yield of a certain field (Watts v. Friend, 10 B. & C. 446, 21 E. C. L. 109; Bowman v. Conn, 8 Ind. 58; Brown v. Sanborn, 21 Minn. 402), or the young of certain animals produced during a specified period (Carpenter v. Gallo- way, li Ind. 418). In such cases the courts do not apply the same rule to the question of value as to the one year clause in the Statute of Frauds, namely, that if the value may not be as much as $50 the contract will not be within the statute. On the other hand, they hold that if the goods actually prove to be of the value of $50 or more the contract is within the statute. Exchanges. Contracts to exchange goods of the value of $50 or more are with- in the statute. See post, sec. 90. And the situation was the same under the old statute. Combs v. Bateman, 10 Barb. (N. Y.) 573; Cha- pin V. Potter, 1 Hilt. (N. Y.) 366. Several Articles. A parol contract, made at one interview, for the sale of various kinds of goods, the purchase price of each being less than $50 but the aggregate price exceeding that sum, was an entire contract within the meaning of the old statute. Allard v. Greasert, 61 N. Y. 1 ; Brown v. Hall, 5 Lans. (N. Y.) 177; Baldey v. Parker, 2 B. & C. 37, 9 E. C. L. 16. But, where several articles are purchased, the circumstances may show an intent to make separate contracts. Aldrich v. Pyatt, 64 Barb. (N. Y.) 391; Seymour v. Davis, 2 Sandf. (N. Y.) 239. The Sales Act has no effect on this question. Auction Sales. The common law rule regarding auction sales was that, where sev- eral articles were struck off separately at an auction, there was but one contract, which was rendered enforceable under the statute by acceptance and receipt of any parcel. Mills v. Hunt, 17 Wend. (N. Y.) 333, 20 Wend. (N. Y.) 431. This rule has been changed by section 102 of the Personal Property Law, which makes each article the subject of a separate sale. * "Shall Not Be Enforceable by Action." The old statute pro- nounced a contract not complying with its formalities "void." It is believed that the use of the words "shall not be enforceable by action" in the new statute in place of "is void" have not had any practical effect, since the courts uniformly construed the word "void" in the old statute to mean unenforceable. Porter v. Wormser, 94 N. Y. 431 ; Crane v. Powell, 139 N. Y. 379, 34 N. E. 911; Daniels v. Rogers, 108 App. Div. 338, 96 N. Y. S. 642. Effect of Statute. "The Statute of Frauds does not prohibit the making of any agree- ment in any way thaDi^ize(iik^iMipiS^cSt®LQT render them illegal FORMALITIES OF THE CONTRACT. 17 § 85. Statute of Frauds. or immoral if not made in some particular way. It simply requires that certain agreements must be proved by a writing. It introduced a new rule of evidence in certain cases without condemning as illegal any contract that was legal before." Crane v. Powell, 139 N. Y. 379, 384, 34 N. E. 911. Pleading. The statute must be pleaded by demurrer or answer. Crane v. Pow- ell, supra. If the complaint alleges a written contract, a denial of its making will allow the defendant to rely on the statute. Brauer v. Oceanic Steam Nav. Co., 178 N. Y. 339, 70 N. E. 863. If, on the trial, the plaintiff litigates the question whether the contract was within the statute, it is immaterial that the defendant did not plead it. Shrimp- ton V. Dworsky, 2 Misc. 123, 21 N. Y. S. 461. A buyer who depends on a contract void under the Statute of Frauds cannot recover from a carrier for goods lost while in the carrier's pos- session, even though, irrespective of the statute, the title had passed to the buyer. The carrier seems to be allowed to take advantage of the statute indirectly. O'Neill v. New York Cent. R. Co., 60 N. Y. 138. * Acceptance and Receipt. For definitions of the acceptance and receipt sufficient under the old statute, see note 9 below. This note is concerned only with the capacity to accept and receive and the sub- ject matter of such acceptance and receipt. Agency. Acceptance may be by an agent of the buyer. Wilcox Silver Plate Co. V. Green, 72 N. Y. 17. But the authority of the agent must be proved by evidence outside the verbal agreement for the sale. Haw- ley v. Keeler, 53 N. Y. 114. A carrier has no implied authority to ac- cept the goods for the buyer. Caulkins v. Hellman, 47 N. Y. 449, 7 Am. Rep. 461; AUard v. Greasert, 61 N. Y. 1. And this is true even though the carrier be designated by the buyer as the means of trans- portation. Rodgers v. Phillips, 40 N. Y. 519. But a carrier has im- plied authority to receive for the buyer. Allard v. Greasert, 61 N. Y. 1; Wilcox Silver Plate Co. v. Green, 72 N. Y. 17. Acceptance by one joint buyer not a partner nor expressly or impliedly authorized to accept is sufficient to bind the other joint buyer. Smith v. Milli- ken, 7 Lans. (N. Y.) 336. Part, of Goods. Acceptance and receipt of part of the goods is sufficient. Van Woert v. Albany R. Co., 67 N. Y. 538; Baumann v. Moseley, 73 Hun (N. Y.) 40, 25 N. Y. S. 882; affirmed with no opinion, 145 N. Y. 620, 40 N. E. 163; MacEvoy v. Aronson, 46 Misc. 622, 92 N. Y. S. 724. Acceptance and receipt of a sample is sufficient to make the contract enforceable, if the sample be considered a part of the bulk sold. Brock Bogert's Sales — 2. Digitized by Microsoft® 18 BOGERT'S NEW YORK SALES ACT. § 85. Statute of Frauds. V. Knower, 2>7 Hun (N. Y.) 609. But not unless it be so considered. Carver v. Lane, 4 E. D. Smith (N. Y.) 168. Acceptance and receipt of other stock owned separately does not make a contract to sell the plaintiff's stock enforceable under the statute, although the agree- ment for the purchase of all the stock was made at the same time and through the same agent. Tompkins v. Sheehan, 158 N. Y. 617, S3 N. E. 502. Symbolical Acceptance. There may be acceptance and receipt sufficient to make the contract binding through the acceptance and receipt of a symbol of the prop- erty sold, such as a bill of lading (Rodgers v. Phillips, 40 N. Y. 519), or a warehouse receipt (Whitlock v. Hay, 58 N. Y. 484). Choses in Action. On the sale of an impatented device, acceptance and receipt of a model of the device is sufficient to make the contract binding. ' Jones V. Reynolds, 120 N. Y. 213, 24 N. E. 279. Acceptance and receipt of a promissory note given for part of an account for goods sold and delivered is sufficient to take the sale of the whole account out of the statute. Armstrong v. Cushney, 43 Barb. (N. Y.) 340. s Part Payment. Time of Making. The old statute required part payment to be made ''at the time" of the making of the contract of sale. Hawley v. Keeler, S3 N. Y. 114; Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544; Jackson v. Tupper, 101 N. Y. SIS, 5 N. E. 65. The new statute changes the law by omitting the words "at the time.'' Under the former statute, however, the part payment was sufficient, although not made at the time of the bargain, if there was a restate- ment and recognition of the essential terms of the contract at the time of the payment. Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544; Webster v. Zielly, S2 Barb. (N. Y.) 482. But a mere reference to the subject-matter of the contract was insufficient. Hallcnbeck v. Coch- ran, 20 Hun (N. Y.) 416. Payment by Credit. Where goods are sold, the purchase price to be credited on an ante- cedent indebtedness, a mere oral statement by the buyer that he will credit the amount on the debt, coupled with a secret entry on a blank page of a book, not connected with the account of the seller, is insuf- ficient to show part payment. It is necessary that "the creditor and purchaser should part with some written evidence of such applica- tion, which shall bind him, and put it into the power of his debtor and vendor to enforce the contract." Brabin v. Hyde, 32 N. Y. 519, 523. See also, Walrath v. Richie, 5 Lans. (N. Y.) 362; Artcher v. Zeh, 5 Hill (N. Y.) 200. Note. Taking the note of the buyer for the price is not payment, though acceptance of the '^o^^j^Jtjy^'j^yWSI^S'M^ '° considered if it be FORMALITIES OF THE CONTRACT. 19 § 85. Statute of Frauds. taken absolutely. Combs v. Bateman, 10 Barb. (N. Y.) 573; Ireland V. Johnson, 18 Abb. Pr. (N. Y.) 392; Artcher v. Zeh, 5 Hill (N. Y.) 200. Need Not Be in Money. Part payment may be in property other than money (post, sec. 90), or in the use of property (Weir v. Hudnut, 115 Ind. 525, 18 N. E. 24). Payment to an Agent. Part payment may be made to an agent, but his authority must be derived from a source other than the oral contract sought to be re- moved from the statute. Hawley v. Keeler, 53 N. Y. 114. Effect of Tender. The assent of both parties is necessary to give part payment a bind- ing effect. Mere tender is not enough. Hershey Lumber Co. v. St. Paul Sash Co., 66 Minn. 449, 69 N. W. 215; Hawley v. Keeler, S3 N. Y. 114; Edgerton v. Hodge, 41 Vt. 676. Earnest. The giving of "something in earnest to bind the contract" is of no practical importance in this state. It is not distinguished from part payment. See Williston on Sales, pages 105-106. ■^ Memorandum. Cases Involving Contracts Other than Sales. It should be noted that, while the requirements of the new statute have affected the memorandum necessary in the case of a contract for sale or sale of goods, the old statute (sec. 31, P. P. L.) governs the mem- oranda necessary in connection with several other agreements within the Statute of Frauds. Such memoranda must still be subscribed. Be- cause of. the fact that the provisions of section 31 of the Personal Property Law formerly governed these other agreements aside from sales of personal property, a number of cases bearing upon the suf- ficiency of memoranda are cited below which do not involve sales of goods. They are deemed pertinent here because the requirements con- cerning the memorandum were formerly the same. Sufficiency of Memoranda. Illustrative Cases. The following cases illustrate the views of the New York courts con- cerning the sufficiency of memoranda under the old statute; Justice v. Lang, 42 N. Y. 493, 1 Am. Rep. 576 (written offer signed by party to be charged and later accepted by parol is sufficient) ; Mason v. Decker, 72 N. Y. 595, 28 Am. Rep. 190 (written offer accepted by pa- rol sufficient) ; Argus Co. v. Albany, 55 N. Y. 495, 14 Am. Rep. 296 (resolution of common council subscribed by clerk sufficient) ; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511 (telegram sufficient) ; Waxel- baum v. Schloss, 131 App. Div. 826, 116 N. Y, S. 42 (written request to call "in reference to the goods you selected" insufficient as not show- ing a confirmation of the sale) ; Myers v. Harris, 104 N. Y. S. 514 (letter confirming order as to part and cancelling as to remainder suf- Digitized by Microsoft® 20 BOGERT'S NEW YORK SALES ACT. § 85. Statute of Frauds. ficient) ; Bailey v. Ogden, 3 Johns. (N. Y.) 399, 3 Am. Dec. 509 (buyer not bound by entry made by seller and read to buyer's agent and as- sented to by him) ; Merritt v. Clason, 12 Johns. (N. Y.) 102, 7 Am. Dec. 286 (pencil memorandum sufficient). Purpose of Memorandum. The purpose for which the memorandum was made is immaterial. Peabody v. Speyers, 56 N. Y. 230; J. Spencer Turner Co. v. Robin- son, SS Misc. 280, IDS N. Y. S. 98. But see Montauk Assoc, v. Daly, 62 App. Div. 101, 70 N. Y. S. 861, affirmed 171 N Y. 659, 63 N. E. 1119. Incorporation by Reference. A memorandum "may be made certain and definite, and thus valid, under the statute, by reference to another writing, as well as by in- corporating the entire contract in one paper. But the reference must be to another paper, and so distinct as to make that paper a part of the contract itself (Kenworthy v. Schofield, 2 B. & C. 945, 9 E. C. L. 286). The parties cannot unite two papers, so as to make them united- ly constitute a valid contract, unless they are physically joined, or the intention to unite them appears on the face of the papers. If the con- nection between two papers depend upon verbal testimony, or if the reference in the written memorandum is to something verbal, the whole evil intended to be remedied by statute will be experienced. The writing being only one link in the chain of evidence to establish the contract, the contract is not in writing, and the case is not taken out of the statute." Wright v. Weeks, 25 N. Y. 153, 160, 161. Two or More Writings. Illustrative Cases. A memorandum may be made up of several documents. The follow- ing cases have considered the sufficiency of connection between two or more documents relied on to constitute a memorandum: Wilson v. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680 (letter referring to preceding letter containing the terms of the con- tract is not sufficient memorandum when second letter does not admit the making of the contract alluded to) ; Coe v. Tough, 116 N. Y. 273, 22 N. E. 550 (sufficient when document subscribed refers to the un- subscribed) ; Doughty v. Manhattan Brass Co., 101 N. Y. 644, 4 N. E. 747 (contents connecting several letters) ; Peabody v. Speyers, 56 N. Y. 230 (separate papers referring to same subject-matter treated as one memorandum) ; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511 (telegram and letter read together) ; Tallman v. Franklin, 14 N. Y. 584 (letter pinned to page of book may be considered with written matter on page and as over signature on page) ; J. Spencer Turner Co. v. Robinson, 55 Misc. 280, 105 N. Y. S. 98 (several papers read together ; all signed by party to be charged) ; Levin v. Dietz, 48 Misc. 593, 96 N. Y. S. 468 (memoranda all subscribed by party to be charged sufficient) ; Roaring Spring Blank Book Co. v. Lesser, 75 Misc. 617. Digitized by Microsoft® FORMALITIES OF THE CONTRACT. 21 § 85. Statute of Frauds. Time of Making. The memorandum may be made before the contract is consum- mated (Hagedorn v. Lang, 34 App. Div. 117, 55 N. Y. S. 602), or after the sale (J. Spencer Turner Co. v. Robinson, 55 Misc. 280, 105 N. Y. S. 98). See also Webster v. Zielly, 52 Barb. (N. Y.) 482, 485, 486 [questioned in Hunter v. Wetsell, 57 N. Y. 380, 15 Am. Rep. 508]. Contents of Memorandum. Illustrative Cases. The memorandum must contain all the essential terms of the con- tract. The following are cases determining the sufficiency or insuf- ficiency of the contents of memoranda : Brauer v. Oceanic Steam Nav. Co., 178 N. Y. 339, 345, 70 N. E. 863 (telegram insufficient because im- portant details omitted) ; Ward v. Hasbrouck, 169 N. Y. 407, 62 N. E. 434 (parol evidence necessary to show for whose benefit promise of guaranty was made ; memorandum insufficient) ; Mentz v. Newwitter, 122 N. Y. 491, 25 N. E. 1044, 11 L.R.A. 97, 19 Am. St. Rep. 514 (mem- orandum must contain subject-matter of sale, terms, and names or a description of parties; here memorandum insufficient because name of seller omitted) ; Drake v. Seaman, 97 N. Y. 230 (memorandum in- sufficient because services to be rendered by salesman under contract not to be performed within a year not mentioned) ; Raubitschek v. Blank, 80 N. Y. 478 (receipt containing all terms of contract except term of credit is, taken in connection with a check given as part pay- ment, a sufficient memorandum) ; Stone v. Browning, 68 N. Y. 598 (memorandum omitting price and terms of contract is insufficient) ; Newbery v. Wall, 65 N. Y. 484 (consideration and terms of purchase omitted; memorandum insufficient) ; Wright v. Weeks, 25 N. Y. 153 (memorandum stating price but referring to "terms as specified," mean- ing thereby as specified by oral agreement, is insufficient) ; Juilliard V. Trokie, 139 App. Div. 530, 124 N. Y. S. 121 (letter asking for cor- rection of statement of terms in another memorandum insufficient) ; Davis V. Shields, 26 Wend. (N. Y.) 341 (memorandum omitting an agreement for six months credit is insufficient). Consideration. Prior to the Revised Statutes of 1830 the consideration was not re- quired to be expressly stated in the memorandum. It was sufficient if it could be inferred. Rogers v. Kneeland, 10 Wend. (N. Y.) 218. The Revised Statutes of 1830 amended the statute by requiring the con- sideration to be expressed; but it was soon held that the words "for value received" were sufficient expression of the consideration. Mil- ler V. Cook, 23 N. Y. 495. In 1863 the legislature, by chapter 464 of the laws of that year, struck out the clause requiring the consider- ation to be expressed. The effect of this amendment was to leave the law as it was prior to 1830 and to allow the consideration to be inferred or argued out, but it did not make wholly unnecessary the statement of the consideration, Drake v. Seaman, 97 N. Y. 230. Digifizea by Microsoft® 22 BOGERT'S NEW YORK SALES ACT. § 85. Statute of Frauds. Parol Evidence. Illustrative Cases. While it is true that the written memorandum must contain all the terms of the contract, still parol evidence is admissible to explain technical terms used in the memorandum and to show the surround- ing circumstances. The following cases discuss the question: At- kinson V. Truesdell, 127 N. Y. 230, 27 N. E. 844 (marks and charac- ters of a technical nature may be explained by parol) ; Routledge V. Worthington Co., 119 N. Y. 592, 23 N. E. 1111 (parol evidence in aid of memorandum when contract partly performed) ; Peabody v. Speyers, 56 N. Y. 230 (meaning of technical terms, phrases and ab- breviations may be shown by parol) ; Wright v. Weeks, 25 N. Y. 153 (trade terms may be shown by parol to have acquired a meaning by usage) ; Tallman v. Franklin, 14 N. Y 584 (parol evidence admissible to identify the subject-matter mentioned in the memorandum) ; Dana v. Fiedler, 12 N. Y. 40, 62 Am. Dec. 130 ("best . . madder 12J" may be shown by parol to refer to the price per pound) ; Flash v. Rossiter, 116 App. Div. 880, 102 N. Y. S. 449 (memorandum showed sale "at present prices"; parol evidence admissible to show standard price lists at that time) ; Bowers v. Ocean Ace. Corp., 110 App. Div. 691, 97 N. Y. S. 485, affirmed 187 N. Y. 561, 80 N. E. 1105 (parol evidence admissible to ascertain and locate property referred to in memoran- dum) ; Hagan v. Domestic Sewing Mach. Co., 9 Hun (N. Y.) 73 (pa- rol evidence admissible to show circumstances surrounding contract for service', for purposes of making clear what services the employee was to render). Signing or Subscribing. Under the old statute actual subscription by the party to be charged or his agent was necessary. James v Patten, 6 N. Y. 9, 55 Am. Dec. 376; Doughty v. Manhattan Brass Co., 101 N. Y. 644, 6 N. E. 747; Coe v. Tough, 116 N. Y. 277, 22 N E. 550; Davis v. Shields, 26 Wend. (N. Y.) 341. The word "subscribed" has been changed to "signed" by the new statute. This makes possible a signature at any place in the memorandum and not necessarily at the physical end thereof. Who Must Sign? The memorandum need be signed only by the party to be charged, the defendant. Justice v. Lang, 42 N. Y. 493, 1 Am. Rep. 576; Mason V. Decker, 72 N. Y. 595, 28 Am. Rep. 190; McCrea v. Purmort, 16 Wend. (N. Y.) 460, 30 Am. Dec. 103. Agency in Signing. The signature of the party to be charged may be made by an agent. Dykers v. Townsend, 24 N. Y. 57. But one party to the contract can- not be the agent of the other for the purpose of signing the memo- randum. Wilson v. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680. The authority of the agent to sign the memo- randum need not bvkins, v. .PembertonL 51 N. Y. 198, 10 Am Rep. 595 (on sale MmP MMQPSP^^ne vitriol" there is an CONDITIONS AND WARRANTIES. 67 § 95. Implied Warranty in Sale by Description. implied obligation to furnish blue vitriol, which is breached by fur- nishing green and blue vitriol mixed) ; Dounce v. Dow, 64 N. Y. 411 (implied obligation that goods shall correspond with description on sale of iron as ''xx pipe iron") ; Newbery v. Wall, 65 N. Y. 484 (con- tract to sell "good Dowrah jute") ; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136 (sale of Van Wycklin's Early Flat Dutch cabbage seed) ; White V. Miller, 71 N. Y. 118, 27 Am. Rep. 13 (sale of seed as "large Bristol cabbage seed" implied an obligation to furnish seed of that kind); Bach v. Levy, 101 N. Y. 511, 5 N. E. 345 (Connecticut to- bacco) ; Depew v. Peck Hardware Co., 121 App. Div. 28, 105 N. Y. S. 390, affirmed 197 N. Y. 528, 90 N. E. 1158 (sale of alfalfa seed) ; Abel V. Murphy, 43 Misc. 648, 88 N. Y. S. 256 (sale of fruit as "grape fruit"). In all these cases the obligation of the seller was to furnish goods of the kind described, and his failure to do so entitled the buyer to reject the goods. * Sale by Sample and Description Both. Apparently the common law doctrine upon this subject was the same as that laid down in the lat- ter part of section 95. Thus in Bach v. Levy, 101 N. Y. 511, 5 N. E. 345, tobacco was sold as Connecticut tobacco and guaranteed to be equal to sample. It was there held that both requirements must be met,— the goods must be equal to sample and of the kind described. See also Gould V. Stein, 149 Mass. 570, 22 N. E. 47, 5 L.R.A. 213, 14 Am. St. Rep. 455; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 5 L.R.A. 702. A New Jersey case (Lissberger v. Kellogg, 78 N. J. L. 85, 73 Atl. 67), decided since the enactment of the Sales Act in that state, approves this principle and states: "The same rule of law is stated in the Sales Act of 1907 (Pamph. L., p. 316, § 14). This act did not take effect until after the transactions now in question, but it was a mere codification of the then existing law in this respect" (p. 89). "A sale, however, may be made partly by description and partly by sample, and in that event the goods must correspond to the descrip- tion in the respect covered thereby and to the sample in other re- spects." Henry v. Talcott, 175 N. Y. 385, 390, 67 N. E. 617. Digitized by Microsoft® 68 BOGERT'S NEW YORK SALES ACT. § 96. Implied Warranties of Quality. § 96. IMPLIED WARRANTIES OF QUALITY. Subject to the provisions of this article and of any stat- ute in that behalf, there is no implied warranty or con- dition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows : ^ 1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is cin implied warranty that the goods shall be reasonably fit for such purpose.* 2. Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchant- able quality.' 3. If the buyer has examined the goods, there is no implied warranty as regards defects which such exami- nation ought to have revealed.* 4. In the case of a contract to sell or a sale of a speci- fied article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.* 5. An implied warranty or condition as to quality or fitness for a particular purpose may be armexed by the usage of trade.* 6. An express warranty or condition does not nega- tive a warranty or condition implied under this act un- less inconsistent therewith.'' Effect of Sectm'"fiUyi^^§if^r^ seems to work several CONDITIONS AND WARRANTIES. 69 § 96. Implied Warranties of Quality. important changes in the law of warranty which may be summarized as follows: (1) The distinction between the ordinary dealer and the manufacturer or grower is abol- ished and the warranty of fitness for purpose extended to all sellers; (2) the manufacturer's liability of fitness for purpose is no longer dependent on negligence, actual or presumed, but is an absolute liability; (3) the special rule regarding the sale of provisions for immediate human con- sumption is abolished and a warranty of fitness of food for any purpose is to be found under the same circum- stances as a similar warranty in the case of the sale of other goods; (4) the warranty of merchantability is limited to dealers in goods of the description sold and is extended to present sales by description, instead of being confined to executory sales; (5) actual inspection is required to exclude an implied warranty as to obvious defects, whereas the common law excluded such a warranty where there was opportunity for inspection or actual inspection; (6) the Sales Act allows an implied warranty to be annexed by usage, whereas the common law in this state did not; (7) the Sales Act provides that an express warranty does not exclude an implied warranty, unless inconsistent therewith, whereas there is authority for the contrary position at com- mon law. Curiously enough the New York courts have in effect discussed this section, for in Howard Iron Works v. Buf- falo Elevating Co., 113 App. Div. 562, 99 N. Y. S. 163, affirmed without opinion 188 N. Y. 619, 81 N. E. 1166, the Appellate Division in the Fourth Department referred to the corresponding section of the English act, which is practically identical, and state (p. 580) : "So far as this English statute goes, it does not seem, as said by Justice Williams, to have altered to any great extent the rules of the common law, but has codified them so far as such a Digitized by Microsoft® 70 BOGERT'S NEW YORK SALES ACT. § 96. Implied Warranties of Quality. codification is possible, and has abolished the distinction between the manufacturer and a seller not a manufacturer, under certain circumstances, which at common law really placed them upon the same footing." "This section follows section 14 of the English Act. As originally drafted sub-section (1) was limited to the case where the seller was the grower or manufacturer, in con- formity with the probable weight of authority. See Me- chem, §§ 1314—1318. The rule in New York is still more restricted, and does not hold even a grower or manufacturer liable if the defect was due to latent defects in the material purchased and there was no negligence. Hoe vs. Sanborn, 21 N. Y. 552. See also California Code, § 1769. (See contra, Randall vs. Newson, 2 Q. B. D. 102; Rodgers vs. Niles, 11 Ohio St. 48, 56; Leopold vs. Van Kirk, 27 Wis. 152). The tendency of recent decisions, however, has been strongly in the direction of extending the doc- trines of implied warranty, and it was thought best in fixing the law in statutory form to follow exactly the English model." (Notes of Commissioners, 30 Am. Bar Assoc. Rep. pages 353-354). "The provisions of the Sales Act are copied from the English statute and the English statute was intended to ex- press the common law of England as it existed at the time the act was passed. It may, therefore, be supposed that the liability of a seller under the Sales Act will be somewhat greater than that imposed by the common law in many ju- risdictions in this country." Williston on Sales, p. 335. For further explanation of the changes made, see notes below. English Act. This section is practically identical with section 14 of the Sale of Goods Act. The following notes are believed to contain digests of all the important£^gig^j(5^^l^y4^g^ under the Sale of CONDITIONS AND WARRANTIES. 71 § 96. Implied Warranties of Quality. Goods Act upon this subject. They may be useful in the construction of the New York act. Fitness for Purpose. Where a buyer notifies a seller that motors which he orders are required for the conveyance of passengers, the traffic to be carried on being heavy and the district hilly, and the machines furnished are un- fit for the heavy work required of them, there is a breach of an implied warranty of fitness for a particular purpose. Bristol Tramways Co. v. Fiat Motors, [1910] 2 K. B. 831, 103 L. T. N. S. 443. Where canned salmon is sold by grocers for use as food, there is an implied warranty that it is fit for human food, which is breached when the salmon is poisonous and causes the death of one who eats it. Jackson v. Watson, [1909] 2 K. B. 193, 100 L. T. N. S. 799. A dealer in milk supplied a householder with milk for family use, and in an account book used in their dealings stated that elaborate precautions were taken to insure the purity of the milk. Held, that there was an implied war- ranty that the milk was reasonably fit for consumption as human food under sub-section 1 of section 14, and that the warranty was breached when a member of the family con- tracted typhoid fever from drinking the milk and died thereof. Frost v. Aylesbury Dairy Co., [1905] 1 K. B. 608, 92 L. T. N. S. 527. A draper went to the shop of a druggist who sold hot- water bottles regularly, and asked for a hot-water bottle. The druggist stated that one shown would stand hot but not boiling water, and the draper bought the bottle. Held, there was an implied warranty of fitness for purpose which was breached by the breaking of the bottle in ordinary use and the scalding of the user. The court said (89 L. T. N. S. 33, 35) : "I think that when people go into a shop in which these articles are dealt with, they are entitled to expect that Digitized by Microsoft® 72 BOGERT'S NEW YORK SALES ACT. § 96. Implied Warranties of Quality. some skill or judgment has been exercised by the shopkeeper in selecting the goods, so that when you buy something which the shopkeeper professes to sell you may expect to get a thing which is of some use for the purpose for which it is sold and is not mere rubbish. To that extent it seems to me that when the plaintiff asked at the druggist's shop for a bottle for use as a hot-water bottle he did it in such a way as to show that he relied upon the seller's skill and judgment." Preist v. Last, [1903] 2 K. B. 148, 89 L. T. N. S. 33. A rule brought to the notice of a buyer that "no war- ranties are given with the goods sold by the society except on the written authority of one of the managing directors or the assistant manager," does not prevent the implied warranty of fitness for purpose from arising. Such a rule applies only to express warranties, not to those presumed by law as a part of the contract. Clarke v. Army Co- operative Soc, [1903] 1 K. B. 155, 88 L. T. N. S. 1. Where a buyer states that she wants "two nice, fresh crabs . . . for her tea," and the seller, a fishmonger, states that those he has are fresh, and the buyer takes two which are poisonous and cause illness to those who eat them, there is a breach of an implied warranty of fitness for purpose, namely, fitness for consumption as human food, and the buyer may recover damages. Wallis v. Russell, [1902] 2 Ir. R. 585. A buyer of coal showed to the seller a letter from the buyer's principal stating that the coal was to be used for bunkering steamers and ships of war, and tlie seller there- after agreed to deliver coal to fill the contract. Held, that there was an implied obligation to furnish coal fit for the purposes named, even though the contract was reduced to writing and contained no mention of the purpose. Gillespie V. Cheney, [l896^j§j^^^%9Jcrosoft® CONDITIONS AND WARRANTIES. 73 § 96. Implied Warranties of Quality. Where the owner of a quarry has for some years sup- pHed an iron smelting works with limestone, and knows the use to which the stone is put, namely, uses connected with smelting, a contract to furnish the smelting works with limestone implies an obligation to furnish stone rea- sonably fit for the purpose of smelting. Strongitharm v. North Lonsdale Iron Co., 21 Times L. Rep. 357. A seller showed a buyer a condenser-tube for steamers, stated that tubes of that kind were in use on certain Clyde tug-steamers, and later sent the buyer a corporate report in which the tubes were referred to as "giving good re- sults in the Clyde tug-steamers." The buyer later or- dered 750 of "your special condenser-tubes" for his steam- er. Held, that there was an implied warranty of the quality of the tubes which was breached when, after four months' use, they were found to be worthless from corrosion. One of the judges considered the warranty one of merchantability, while two thought it one of fitness for purpose. Williamson v. Macpherson, Sc. Ct. Sess. 6 F. 863. Merchantability. Merchantable quality is "used as mean- ing that the article is of such quality and in such condition that a reasonable man acting reasonably would, after a full examination, accept it under the circumstances of the case in performance of his offer to buy that article, and whether he buys for his own use or to sell again so as to make the term 'salable' apply." Bristol Tramways Co. v. Fiat Motors, [1910] 2 K. B. 831, 103 L. T. N. S. 443, 446. On a contract to sell motor horns where the vendor is the manufacturer, there is an implied warranty of their mer- chantability, which is breached when some of the horns are injured due to defective packing, others are defective due to careless workmanship, and some require polishing and other work to make them merchantable. The goods were bought Digitized by Microsoft® 74 BOGERT'S NEW YORK SALES ACT. § 96. Implied Warranties of Quality. by description, being made to order. Jackson v. Rotax Mo- tor Co., [1910] 2 K. B. 937, 103 L. T. N. S. 411. Where a customer of a beer-house is accustomed to fre- quent that house to obtain Holden's beer because he knows that only that beer is sold there, and he orders Holden's beer, there is a sale of goods by description, and an implied warranty that the goods are merchantable, so that the buy- er may recover for breach of warranty when the beer proves to contain arsenic and to be detrimental to his health. The jury expressly found that there was no reliance on the seller's skill or judgment, so that there could be no war- ranty of fitness for purpose. Wren v. Holt, [1903] 1 K. B. 610, 88 L. T. N. S. 282. Patent or Other Trade Name. Where coal is sold for bunkering steamers and ships of war under the name of Cyfartha Merthyr and Hills Plymouth coal, there is not a sale of goods imder a patent or other trade name so as to exclude an implied warranty of fitness for purpose. Referring to that exception the court says in this case : "That obviously is intended to meet the case, not of the supply of what I may call for this purpose raw commodities or materials, but for the supply of manufac- tured articles — steam ploughs, or any form of invention which has a known name, and is bought and sold under its known name, patented or otherwise." Gillespie v. Cheney, [1896] 2 Q. B. 59, 64. A contract for the sale of a 24 to 40 h. p. Fiat motor omnibus and six 24 to 40 h. p. Fiat motor omnibus chassis, the name Fiat being the name applied to that make of motors, is not a contract for the purchase of an article under a patent or other trade name. The court said : "In this case there was nothing that could properly be called a Fiat omnibus or a Fiat chassis ; the industry was in the tentative ^^^tiiS^^WS^oim' really for the par- CONDITIONS AND WARRANTIES. 75 § 96. Implied Warranties of Quality. ticular omnibus and the chassis to be completed and made respectively by the Fiat Company on such lines and patterns as that company should find expedient for the purpose." Bristol Tramways Co. v. Fiat Motors, [1910] 2 K. B. 831, 103 L. T. N. S. 443, 445. Where a seller sends to the buyer a circular advertis- ing an apparatus known in trade as "Patterson's Smoke- Prevention Suction Draught for Land and Marine Boil- ers," and used to increase boiler capacity and to reduce or prevent smoke, in which circular the statement is made that "The smoke-prevention is absolute, and is attained by a proper arrangement," etc., there is a sale of an article under a patent or other trade name and no warranty of fitness for purpose is implied. Paul v. Glasgow Corp., Sc. Ct. Sess. 3 F. 119. 1 Caveat Emptor the General Rule. "The rule of common law, caveat emptor, and not the rule of civil law, caveat venditor, ap- plies to all sales of personal property in the State of New York, whether executed or executory. But to this rule, as to all rules of law, there are certain well-grounded exceptions recognized by our courts." Howard Iron Works v. Buffalo Elevating Co., 113 App. Div. 562, 99 N. Y. S. 163, affirmed 188 N. Y. 619, 81 N. E. 1166. The Sales Act purports to state all the exceptions to this general rule, in sections 94 to 97 inclusive. Contract Written: Implied Warranty. The fact that a contract is reduced to writing does not prevent the raising of an implied warranty. Carleton v. Lombard, 149 N. Y. 137, 43 N. E. 422. The statement on a seller's invoice that he does not war- rant goods, when not brought to the buyer's attention, does not pre- vent the raising of an implied warranty. Landreth v. Wyckoff, 67 App. Div. 145, 73 N. Y. S. 388. 2 Fitness for Particular Purpose. Manufacturers Distinguished from Other Sellers. The common law of New York made a sharp distinction between the liability of sellers who were growers or manu- facturers of the goods and sellers who did not occupy either of those relations to the goods. The former class of sellers were held liable upon a certain warranty of fitness for purpose, while the latter were not, even though they had knowledge of the par- ticular purpose which the buyer had in inind. Thus in Bartlett v. DigWzedDy Microsoft® 76 BOGERT'S NEW YORK SALES ACT. § 96. Implied Warranties of Quality. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428, hogs were sold by a broker with knowledge that the buyer wanted them for the New York mar- ket. The court held there was no implied warranty of their fitness for that purpose, stating the rule to be as follows : "All the preceding questions which we have noticed, and the exceptions thereto, seem to be based upon the theory, that a warranty of fitness of an article for a specific purpose, may be implied, from the knowledge on the part of the seller, that the article is intended for such specific purpose. This is a doctrine of the civil law, which has been attempted, but un- successfully, to be made a part of our common law. The authorities we have already cited, clearly hold, that where the vendor of the ar- ticle is not the manufacturer of the article sold, and in cases where the vendee, as in this case, has equal knowledge and equal opportu- nities of knowledge of the character or quality of the article sold, with the vendor, the vendor is only liable upon an express warranty." No Warranty of Fitness in Ordinary Sale; Illustrative Cases. This doctrine that a seller who has no reason to have superior knowl- edge concerning the article he sells because he has manufactured or grown it is under no obligation that it shall be fit for a particular purpose, is set forth and applied in the following cases : Reynolds v. Mayor, 39 App. Div. 218, 57 N. Y. S. 106 (sale of water closet tanks by dealer) ; Cafre v. Lockwood, 22 App. Div. 11, 47 N. Y. S. 916 (sale of twine by dealer) ; American Forcite Powder Mfg. Co. v. Brady, 4 App. Div. 95, 38 N. Y. S. 545 (powder sold by dealer with knowledge that it was wanted for blasting purposes) ; Healy v. Bran- don, 66 Hun (N. Y.) 515, 21 N. Y. S. 390, affirmed 142 N. Y. 681, 37 N. E. 825 (sale of Panama hides by dealer) ; Whitman v. Jacobson, 119 N. Y. S. 246 (sale of cloth by dealer) ; Strauss v. Salzer, 58 Misc. 573, 109 N. Y. S. 734 (cloth sold by importer) ; Pascal v. Goldstein, 51 Misc. 629, 100 N. Y. S. 1025; Merriman Paper Co. v. New York Market Gardeners' Assoc, 58 Misc. 236, 108 N. Y. S. 1038. Manufacturers' Rule Stated. The rule regarding the liability of manufacturers is set forth in the following words in the leading case of Hoe v. Sanborn, 21 N. Y. 552, 556, 78 Am. Dec. 163 : "The vendor is liable, in such cases [that is, where he is a manufacturer], for any latent defect, not dis- closed to the purchaser, arising from the manner in which the article was manufactured; and if he, knowingly, uses improper materials, he is liable for that also; but not for any latent defect in the material which he is not shown and cannot be presumed to have known." This rule made him liable for faulty workmanship or the selection of improper materials if he knew they were improper or ought to have known it; but it did not render him liable for latent defects in materials P^^'^^^^^jiffgij f^Widf^Si^^ '^""''^ "°* reasonably be expected to discover. CONDITIONS AND WARRANTIES. 77 § 96. Implied Warranties of Quality. Rule Changed by Sales Act. As suggested in the foregoing portions of this note, the Sales Act has, by the insertion in sub-sections 1 and 2 of the words "whether he be the grower or manufacturer or not," destroyed the distinction for- merly prevailing between such sellers and ordinary dealers, and it has also extended the warranty of fitness for purpose to all defects, whether arising from negligence or not. These are two noteworthy changes in the New York law of warranty. Theory of Old Rule. The theory behind this manufacturer's warranty at common law was stated as follows in Howard Iron Works v. Buffalo Elevating Co., 113 App. Div. 562, 99 N. Y. S. 163, affirmed 188 N. Y. 619, 81 N. E. 1166: "The rule that implies the warranty by the manufacturer against secret defects, which obtain in the process of the manufac- ture itself, rests upon and has for its foundation the presumption that the manufacturer either knew of the care that is used in the manufacture of the article, or was bound to know what degree of care was used in such manufacture." Manufacturers' Rule Illustrated. The doctrine of Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163, regarding the manufacturer's liability, has been applied in the follow- ing cases: Heath Dry Gas Co. v. Kurd, 193 N. Y. 255, 86 N. E. 18 (carbureters) ; Bierman v. City Mills Co., 151 N. Y. 482, 45 N. E. 856 (felt cloth) ; Carleton v. Lombard, 149 N. Y. 137, 43 N. E. 422 (petroleum) ; Gaylord Mfg. Co. v. Allen, S3 N. Y. 515 (iron castings) ; Kelly Asphalt Block Co. v. Barber Asphalt Paving Co., 136 App. Div. 22, 120 N. Y. S. 163 (paving blocks) ; Durbrow Mfg. Co. v. Cuming, 35 App. Div. 376, 54 N. Y. S. 818 (sewing machines) ; Gut- willig v. Zuberbier, 41 Hun (N. Y.) 361, 32 N. Y. St. Rep. 605 (liquor) ; Gautier v. Douglass Mfg. Co., 13 Hun (N. Y.) 514 (steel) ; Rogers v. Beckrich, 46 App. Div. 429, 61 N. Y. S. 725 (bicycle parts) ; Burrowes Co. V. Rapid Safety Filter Co., 49 Misc. 539, 97 N. Y. S. 1048 (win- dow screens) ; Baylis v. Weibezahl, 42 Misc. 178, 85 N. Y. S. 355 (pliers) ; League Cycle Co. v. Abrahams, 27 Misc. 548, 58 N. Y. S. 306 (bicycle parts) ; Metz v. Virgil Practice Clavier Co., 26 Misc. 726, 56 N. Y. S. 1081 (ornamental figures) ; Stackfleth v. Demuth Glass Mfg. Co., 25 Misc. 482, 54 N. Y. S. 989 (melting pots). That the manufacturer's liability does not extend to latent defects in materials bought from others, see Howard Iron Works v. Buf- falo Elevating Co., 113 App. Div. 562, 99 N. Y. S. 163, affirmed 188 N. Y. 619, 81 N. E. 1166. Growers of Crops. At common law the same rule was applied to a grower as to a manufacturer. Thus in White v. Miller, 71 N. Y. 118. 27 Am. Rep. Digitized by Microsoft® 78 BOGERT'S NEW YORK SALES ACT. § 96. Implied Warranties of Quality. 13, it was held that upon the sale by a grower of "large Bristol cab- bage seed," there was an implied warranty that the seed was free from any latent defect arising from improper cultivation. The following cases also sustain this point : Prentice v. Fargo, 53 App. Div. 608, 65 N. Y. S. 1114, affirmed 173 N. Y. 593, 65 N. E. 1121 (seed wheat) ; Landreth v. Wyckoff, 67 App. Div. 145, 73 N. Y. S. 388 (seed peas impure from cross fertilization). Elements of Statutory and Common Law Warranties Similar. Apparently the two requisites named in sub-section 1, namely, notice of particular purpose and reliance on the seller's skill or judg- ment, were also necessary at common law. Thus in Howard Iron Works V. Buffalo Elevating Co., 113 App. Div. 562, 570, 99 N. Y. S. 163, affirmed 188 N. Y. 619, 81 N. E. 1166, the court stated that the war- ranty is that "the article sold shall be fit for the purpose for which it is sold if the particular purpose be specified, and that it shall be free from any internal defect which renders it unfit for the purpose specified." As sustaining this view, see also Hight v. Bacon, 126 Mass. 10, 30 Am. Rep. 639; Hargous v. Stone, S N. Y. 73; Hart v. Wright, 17 Wend. (N. Y.) 267. And in Wood Mower Co. v. Thayer, 50 Hun (N. Y.) 516, 521, 3 N. Y. S. 465, the court defined the manufac- turer's obligation regarding the article sold to be "that it is free from any latent defects growing out ot the process of manufacture, and known to him, and that it is reasonably fit for the purpose for which it is intended, unless the purchaser relies upon his own judgment." See also Hight v. Bacon, 126 Mass. 10, 30 Am. Rep. 639. Provisions. At common law there was a rule that, upon the sale of provisions for immediate human consumption, there was implied a warranty that they were wholesome and fit for use as food. This rule is illus- trated in the following cases: Van Bracklin v. Fonda, 12 Johns. (N. Y.) 468, 7 Am. Dec. 339 (sale of beef ; but here there was fraud) ; Divine v. McCormick, 50 Barb. (N. Y.) 116 (sale of heifer) ; Davis Provision Co. v. Fowler, 20 App. Div. 626, 117 N. Y. S. 205, affirmed 163 N. Y. 580, 57 N. E. 1108; Money v. Fisher, 92 Hun (N. Y.) 347, 36 N. Y. S. 862; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372. But the rule had no application to cases where the buyer was not to be the consumer, but merely to use the provisions for resale. Moses V. Mead, 1 Den. (N. Y.) 378, 43 Am. Dec. 676 (sale of meat by wholesaler to retailer) ; Wart v. Hoose, 65 Misc. 462, 119 N. Y. S. 1107 (sale of cow to butcher) ; Cotton v. Reed, 25 Misc. 380, 54 N. Y. S. 143 (sale of cow to butcher). In Julian v, Laubenberger, 16 Misc. 646, 38 N. Y. S. 1052, it was held that the rule did not apply to the sale of a can of salmon by a retailer to a consumer, the re- Digitized by Microsoft® CONDITIONS AND WARRANTIES. 79 § S)6. Implied Warranties of Quality. tailer not having prepared the food, and having no knowledge of its condition. Effect of Act on Provisions Rule. It is believed that this special rule regarding provisions has been abolished by the Sales Act because of the failure of section 96 to make mention of it and because the section purports to exclude all war- ranties not mentioned. The effect of such an abolition of the special common law rule, however, would be merely to throw sales of pro- visions under the same rule as sales of all other goods, namely, under the rule of sub-section 1 of section 96. If the buyer of provisions stated the purpose for which he bought them, which he would implied- ly do in practically all cases, and relied on the skill or judgment of the seller of the provisions, there would be an implied warranty of fitness for the particular purpose, which would ordinarily be con- sumption as food. This seems to be the view of Professor Williston. See note on page 325 of Williston on Sales as follows : "In Bigge v. Parkinson, 7 H. & N. 9SS, it was held that the rule in regard to pro- visions was like the rule as to other goods. So in the English Sale of Goods Act there is no separate rule established for provisions, and under the general rule of section 14 (1) reliance upon the seller's skill or judgment is essential. This provision has been copied in the American Sales Act, section IS (1)." The English cases decided under the Sale of Goods Act have sev- eral times construed the act with reference to sales of provisions and have implied warranties of fitness for use as food under sub-section 1. See notes to English cases under this section, ante. In Howard Iron Works v. Buffalo Elevating Co., 113 App. Div. 562, 579, 99 N. Y. S. 163, affirmed 188 N. Y. 619, 81 N. E. 1166, the Appellate Division in the Fourth Department refers to the English act and the case of Wren v. Holt, [1903] 1 K. B. 610, a case involv- ing the sale of beer containing arsenic, and seems to think that the rule regarding the sale of provisions would not be affected by the Sales Act because of the rule stated in the section corresponding to section 154 of the New York act, namely, that the rules of the com- mon law govern all cases not provided for by the act. It is sub- mitted, however, that this view is erroneous, since section 96 ex- pressly excludes all implied warranties of quality not mentioned therein. Draftsman's Note. Regarding this sub-section Professor Williston says (Williston on Sales, p. 336) : "In regard to sub-section (1) some difficulty of con- struction has been felt. This is the only subsection under which a warranty of a specific chattel can be implied and the question has been raised — do the words of this subsection justify the implication of a Digitized by Microsoft® 80 BOGERT'S NEW YORK SALES ACT. § 96. Implied Warranties of Quality. warranty of merchantability, or must the words "particular purpose" be held to indicate that the section is not aimed at general merchanta- bility but only at more specific purposes? It would be unfortunate if the section should be narrowly construed, and had it not already re- ceived a liberal construction in England, a construction which it may be assumed American courts would follow, it would be undesirable to copy the English legislation in this matter. The last edition of Benjamin on Sales thus summarizes the results of the English de- cisions : "A 'particular purpose' is not some purpose necessarily dis- tinct from a general purpose; for example, the general purpose for which all food is bought is to be eaten, and this would also be the particular purpose in any specific instance. A particular purpose is, in fact, the purpose, expressly or impliedly communicated to the seller, for which the buyer buys the goods; and it may appear from the very description of the article, as, for example, 'coatings,' or a 'hot-water bottle.' But where an article is capable of being applied to a variety of purposes the buyer must particularize the specific purpose he has in view." s Merchantable Quality. Definition. "Merchantable" has been vari- ously defined. Thus in Howard v. Hoey, 23 Wend. (N. Y.) 350, 351, 35 Am. Dec. 572, it is stated that the word means "at least of medium quality or goodness." In Drummond v. Van Ingen, 12 App. Cas. 284, the English court states that it considers an article unmerchantable if it "be unfit for use in the manner in which goods of the same quality of material, and the same general character and designation, ordinarily would be used." Professor Williston states (p. 327, Williston on Sales) that merchantable goods are "goods salable as goods of the general kind which they were described or supposed to be when bought." Fitness and Merchantability Sometimes Equivalent. If the "particular purpose" which the buyer has in mind when he buys goods is merely their normal use, fitness for purpose will be equivalent to merchantability. It is obvious, however, that the "par- ticular purpose" may be either broader or narrower than mere mer- chantability. Because of the possible equivalence of these two war- ranties, the connection between sub-section 1 and sub-section 2 is very close. See the English cases construing the Sale of Goods Act on this subject, ante. Common Law Warranty of Merchantability. The New York courts appear to have implied a warranty of mer- chantable quality when the contract of sale was an executory contract. "In an executory contract for the sale of personal property, -the law implies that the article, when furnished, shall be of mer- chantable quality (Hargous v. Stone, 5 N. Y. 73 and cases cited)." Reed V. Randall, ^ ^M^M^^m^ec^^S. TLe warranty appears to have been ^ealt wilK principally m dicta. Traces of its CONDITIONS AND WARRANTIES. 81 § 96. Implied Warranties of Quality. existence are found in the following cases: riargous v. Stone, 5 N. Y. 73, 86; Howard Iron Works v. Buffalo Elevating Co., 113 App. Div. 562, 99 N. Y. S. 163, affirmed 188 N. Y. 619, 81 N. E. 1166; Plumb V. Hallauer Co., 145 App. Div. 20, 25, 130 N. Y. S. 147; Wood Mower Co. v. Thayer, 50 Hun 516, 521, 3 N. Y. S. 465; P. J. Sorg Co. V. Crouse, 88 Hun 246, 248, 34 N. Y. S. 741 ; Tichnor v. Bar- ley, 72 Misc. 638, 639, 132 N. Y. S. 243; Hart v. Wright, 17 Wend. (N. Y.) 267, 277, affirmed 18 Wend. (N. Y.) 449; Sprague v. Blake, 20 Wend. (N. Y.) 61, 64; Howard v. Hoey, 23 Wend. (N. Y.) 350, 351, 35 Am. Dec. 572; Ferguson v. Netter, 204 N. Y. 505. Probable Effect of Act. It seems probable that the warranty of merchantability referred to in these cases is substantially that perpetuated m the Sales Act (sec- tion 96, sub-section 2). The common law requirement that the con- tract be executory is substantially the equivalent of the statutory re- quirement that the sale be one by description, since practically all sales by description are executory. In the rare but conceivable cases where specific goods are sold by description, the Sales Act would seem to add to the seller's liability in New York. On the other hand, the common law does not appear to have restricted this liability for merchantability to "a seller who deals in goods of that description," so that the Sales Act has apparently made a slight restriction in this respect. Caveat Emptor. The strict common law rule of caveat emptor, with no exceptions, now long since abandoned, is illustrated in Oneida Mfg. Soc. v. Law- rence, 4 Cow. (N. Y.) 440. Present Sale of Specific Chattel. At common law, upon the present sale of a specific chattel, there was no implied warranty of quality. Hargous v. Stone, 5 N. Y. 73, 86; Jackson v. Helmer, 73 App. Div. 135, 77 N. Y. S. 835; Flood v. benger, 140 App. Div. 140, 124 N. Y. S. 1013; Hart v. Wright, 17 Wend. (N. Y.) 267, 277, affirmed 18 Wend. 449; Howard v. Hoey, 23 Wend. (N. Y.) 350, 35 Am. Dec. 572; Paul v. Hadley, 23 Barb. (N. Y.) 521. It would seem that this rule must under the Sales Act, be qualified by subsections 1 and 2 of this section. There may be an implied warranty of fitness for purpose in any present sale and an implied warranty of merchantability in a present sale by description. Fitness for Transportation. The warranty of merchantability included at common law the ele- ment of merchantability as an article of commerce, that is, fitness for transportation. Fairbank Canning Co. v. Metzger, 118 N. Y. 260, Bogert's Sales — 6. Digitized by Microsoft® 82 BOGERT'S NEW YORK SALES ACT. § 96. Implied Warranties of Quality. 268, 23 N. E. 372; Carleton v. Lombard, 149 N. Y. 137, ISO, 43 N. E. 422. * Effect of .Examination. Actual Inspection and Opportunity for Inspection. This sub-section seems to make a change in the law. Under it there must be actual inspection by the buyer in order to do away with warranties otherwise implied concerning defects possible of discovery. Apparently by refusing to inspect the buyer can relieve himself. But at common law either actual inspection or opportunity for inspection prevented the existence of a warranty as to patent defects. Hight v. Bacon, 126 Mass. 10, 30 Am. Rep. 639; Murchie v. Cornell, 155 Mass. 60, 29 N. E. 207; McCormick v. Sar- son, 45 N. Y. 265, 6 Am. Rep. 80; Gurney v. Atlantic R. Co., 58 N. Y. 358; Norton v. Dreyfuss, 106 N. Y. 90, 94, 12 N. E. 428; Studer V. Bleistein, US N. Y. 316, 32S, 22 N. E. 243; Zabriskie v. Central Ver- mont R. Co., 131 N. Y. 72, 78, 29 N. E. 1006; Waeber v. Talbot, 167 N. Y. 48, 57, 60 N. E. 288; Salisbury v. Stainer, 19 Wend. (N. Y.) 159, 161, 32 Am. Dec. 437; Merriam v. Field, 39 Wis. 578. Draftsman's Note. Concerning this sub-section Professor Williston says (Williston on Sales, p. 335) : "Sub-section (3) expresses the better view in regard to inspection. As to defects which inspection ought to reveal, the inspection prevents any implied warranty as to such defects, but other- wise inspection is unimportant. In one respect, however, this sub- section changes the law. The sub-section refers only to examination and says nothing of opportunity to examine. The fact that the buyer has an opportunity to examine will as such be unimportant under the act. It will, however, be important evidence upon the general ques- tion raised in sub-section (1), whether the buyer relies on the seller's skill or judgment. Instead of making a right to inspect conclusive either as to obvious defects or as to latent defects and instead of mak- ing actual inspection as to latent defects conclude the buyer the act reverts to the general principle which gives inspection, or a right of inspection, its importance; namely, the reliance on the seller's skill instead of on the buyer's own judgment." 5 Patent or Other Trade Name. The principle set forth in this sub-section is believed to be a statement of a rule of the common law. "The plaintiff owned the foundry referred to. He manufactured there iron known as No. 1, and iron known as No. 2. This fact was known to the defendants. They contracted with the plaintiff for 800 tons, not of No. 1 and No. 2 iron generally, but for iron known as Nos. 1 and 2 of the Poughkeepsie furnace. Whether it was good or poor, hard or soft, would make good stove castings or poor ones, was not Digitized by Microsoft® CONDITIONS AND WARRANTIES. 83 § 96. Implied Warranties of Quality. at all in question. Whether it was as good as the iron made at other factories, whether it was above or below the average, was not im- portant. It was as if they had contracted with a farmer for 800 bushels of the yellow corn to be raised on his farm in a certain town, or 800 bushels of the winter wheat to be raised on a particular lot, or the apples from the trees in his orchard. Such a contract assumes that the parties know what is the character of the article to be there produced. They select a particular standard, and do not rely, either upon its merchantable character or upon its productive quality. If the particular iron, corn, wheat or apples thus to be produced is fur- nished to the buyer, the contract is performed." Beck v. Sheldon, 48 N. Y. 365, 370. See also Seitz v. Brewers' Refrigerating Mach. Co. 141 U. S. 510, 12 S. Ct. 46, 35 U. S. (L. ed.) 837; Peoria Grape Sugar Co. v. Turney, 175 111. 631, 51 N. E. 587; American Home Sav. Bank Co. v. Guardian Trust Co., 210 Pa. St. 320, 59 Atl. 1108. Nor is there a complete implied warranty where the buyer designs the article to be sold. The seller is freed from all responsibility for defects due to the method of design. Howard Iron Works v. Buffalo Elevating Co., 113 App. Div. 562, 99 N. Y. S. 163, affirmed 188 N. Y. 619, 81 N. E. 1166. See notes on English cases, ante, pages 74--7S, for definitions of what is a patent or other trade name. * Warranty by Usage. This sub-section is believed to be con- trary to the pre-existing law in New York. Although the authorities are not numerous, it has been held that a warranty "cannot be established, by proof that it was a general custom or usage of persons dealing in the article, thus to contract." Beirne v. Dord, 5 N. Y. 95, 102, 103, 55 Am. Dec. 321; Thompson v. Ashton, 14 Johns. (N. Y.) 316. Proctor v. Atlantic Fish Co., 208 Mass. 351, 94 N. E. 281, was an action brought after the enactment of the Sales Act in Massachusetts, in which recovery was sought for a breach of warranty on a sale of mackerel, and it was there held that the trial judge was justified in re- fusing to charge that "a warranty as to quality or condition of the mackerel cannot be implied into this case by evidence of custom or usage." Referring to Dickinson v. Gay, 7 Allen (Mass.) 29, 83 Am. Dec. 656, a case in which it was held that a warranty could not be raised by usage, the court said (p. 355) : "The rule adopted in that case never was law in many jurisdictions (see Williston on Sales, § 246) and has been changed in the sales act. St. 1908, c. 237, Part I, § 15 (5)." But the authority of an agent to warrant may be proved by usage. Reynolds v. Mayor. 39 App. Div. 218, 57 N. Y. S. 106. Digitized by Microsoft® 84 BOGERT'S NEW YORK SALES ACT. § 96. Implied Warranties of Quality. '' Express Warranty Does Not Exclude Implied. This sub-sec- tion is considered out of accord with the common law in New York. "An express warranty with reference to quality precludes an implied warranty with reference thereto, even though it relate to a different quality." Turl v. Williams Engineering, etc. Co., 136 App. Div. 710, 712, 121 N. Y. S. 478, citing DeWitt v. Berry, 134 U. S. 306, 10 S. Ct. 536, 33 U. S. (L. ed.) 896; Baldwin v. Van Deusen, 37 N. Y. 487, and Carleton v. Lombard, 72 Hun 254, 260, 25 N. Y. S. 570, reversed on another point, 149 N. Y. 137, 43 N. E. 422. See also to the same effect. Charter Gas Engine Co. v. Kellam, 79 App. Div. 231, 234, 79 N. Y. S. 1019. But see Bell v. Mills, 78 App. Div. 42, 80 N. Y. S. 34. An allegation that articles purchased were warranted to be fit and proper for the purpose for which they were designed is supported by proof of either an implied or an express warranty. Reynolds v. Mayor, 39 App. Div. 218, 57 N. Y. S. 106; Rogers v. Beckrich, 46 App. Div. 429, 61 N. Y. S. 725. Digitized by Microsoft® CONDITIONS AND WARRANTIES. 85 § 97. Implied Warranties in Sale by Sample. § 97. IMPLIED WARRANTIES IN SALE BY SAMPLE. In the case of a contract to sell or a sale by sample : * (a) There is an implied warranty that the bulk shall correspond with the sample in quality.* (b) There is an implied warranty that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except so far as otherwise pro- vided in subdivision three of section one hundred and twenty-eight.* (c) If the seller is a dealer in goods of that kind, there is an implied warranty that the goods shall be free from any defect rendering them unmerchantable which would not be apparent on reasonable examina- tion of the sample.* Effect of Section. This section declares the common law except (1) that the warranty here discussed is called an "implied" warranty under the Sales Act, whereas it was known as an "express" warranty at common law, and (2) that the liability set forth in sub-section 3 of the section seems not to have been recognized by the New York courts. The first change mentioned is not of practical importance, since the Sales Act gives the buyer remedies for the breach of an implied warranty as broad as those allowed the buyer for breach of an express warranty at common law. See sections 130 and 150, post. English Act. Section IS of the Sale of Goods Act is the practical equivalent of this section, except that the last clause of sub-section (b) and the first clause of sub-section (c) of the American act are not found in the English act. Digitized by Microsoft® 86 BOGERT'S NEW YORK SALES ACT. § 97. Implied Warranties in Sale by Sample. In Polenghi v. Dried Milk Co., 92 L. T. N. S: 64, it was held that where goods are sold to be shipped by the seller to the buyer and "Payment is to be made * * * in London on the arrival of the powders against shipping or railway documents," the buyer is not entitled to inspect the goods to see whether they correspond with the sample, before pay- ment. If the goods proved inferior to the sample as ascer- tained by later use, the court held that they might be re- turned, and the option of so returning them would not be removed by payment. 1 What Is a Sale by Sample? This question has been a more dif- ficult one to answer than the question concerning the effect of such a sale. Intent Necessary? An important distinction has existed in New York between the mere exhibition of a sample with a representation, express or implied, that the sample thus exhibited had been taken fairly from the bulk, and an agreement between the parties that a sample shown should be considered as a representative portion of the entire bulk. The former transaction has not been regarded as a sale by sample in this state, although it has in some other states. See Bradford v. Manly, 13 Mass. 139, 143, 7 Am. Dec. 122. "The seller need not state that the bulk of the goods corresponds with the sample, as the warranty is 'implied in fact,' and is express, for it must be found as a fact that the parties intended the sale to be made by sample, and that the exhibition of the sample was re- garded by them as in effect an affirmation as to the quality of the articles sold. * * * -pjjg mere exhibition of a sample is not of itself an agreement to sell by sample, and it is usually a question of fact for the jury to decide whether, under all the circumstances, the parties intended that the sale should be made in that way." Henry V. Talcott, 175 N. Y. 385, 389, 390, 67 N. E. 617. For other cases laying down the rule that intent to warrant by sample is necessary and that the mere act of exhibition of the sam- ple is insufficient to give rise to a warranty, see Hargous v. Stone, S N. Y. 73; Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321; Waring V. Mason, 18 Wend. (N. Y.) 425; Jacobs v. Day, 5 Misc. 410, 25 N. Y. S. 763; E. T. Burrowes Ca r. Rapid Safety Filter Co., 49 Misc. Digitized by Microsoft® CONDITIONS AND WARRANTIES. 87 § 97. Implied Warranties in Sale by Sample. 539, 97 N. Y. S. 1048; Pascal v. Goldstein, SI Misc. 629, 100 N. Y S. 1025. Obviously where the buyer has procured a sample of the goods without the seller's knowledge, and then contracts to buy the goods relying on this sample, there is no warranty that the bulk is equal to the sample. Ames v. Jones, 11 N. Y. 614. Since the Sales Act makes no attempt to define a sale by sample, it would seem that the requirement of the New York courts that intent should exist is not affected by the act. The doctrine is some- what peculiar, since intent to warrant is not necessary in the case of the ordinary express warranty, a warranty by words (see sec. 93 and notes, ante). Why then should intent be necessary where the express warranty is by acts, which have the same effect as words? Must the Goods be in Existence? It has been held in New York that a sale by sample can only exist where the goods are in esse at the time of the making of the con- tract. Gurney v. Atlantic R. Co., 58 N. Y. 358, 364; Brigg v. Hilton, 99 N. Y. 517. But there is good authority for the contrary view. "The rule is the same whether the goods are in existence at the time of the contract of sale or are to be manufactured, although it is sometimes said that such a sale is not technically one by sam- ple." Henry v. Talcott, 175 N. Y. 385, 390, 67 N. E. 617. See, also, Hardt v. Western Electric Co., 84 App. Div. 249, 82 N. Y. S. 835. The law upon this subject would seem to be unaffected by the Sales.. Act since that statute makes no attempt to define the elements of a' sale by sample. Illustrative Cases. A contract to manufacture and deliver wrenches to be made in a first class manner, in every way equal to a model, is not a sale by sample. Ideal Wrench Co. v. Garvin Mach. Co., 92 App. Div. 187, 87 N. Y. S. 41, affirmed 181 N. Y. 573, 74 N. E. 1118. And a contract to manufacture goods according to orders and specifications, even though the buyer selected a type or style of goods from various grades shown him, is not a sale by sample. Smith v. Coe, 170 N. Y. 162, 63 N. E. 57. But where Powelton coal of the "same quality and kind as furnished" by the seller to the buyer during the preceding year, is sold, there is a sale by sample. "A contract of sale which points out a known and ascertainable standard by which to judge the quality of goods sold, is, for all practical purposes, a sale by sam- ple, and renders the vendor liable for damages upon a breach of warranty, although there has been an acceptance after opportunity to Digitized by Microsoft® 88 BOGERT'S NEW YORK SALES ACT. § 97. Implied Warranties in Sale by Sample. inspect the goods." Zabriskie v. Central Vermont R. Co., 131 N, Y. 72, 29 N. E. 1006. Examination. "The chief reason for exempting sales by sample from the cardinal rule of caveat emptor is that the buyer has no chance to protect him- self by an examination of the commodity sold. When the goods are in the presence of the parties at the time of the sale and an adequate examination can be made, even if it is inconvenient or difficult, ac- cording to the weight of authority the sale is not to be regarded as made by sample in the absence of an express agreement to that effect." Henry v. Talcott, 175 N. Y. 385, 390, 391, 67 N. E. 617. See also Salis- bury V. Stainer, 19 Wend. (N. Y.) 159, 32 Am. Dec. 437; Hargous v. Stone, S N. Y. 73. Time of Exhibition of Sample. A sale by sample may take place although the sample was delivered some months before the actual sale and was in the possession of the buyer, not the seller. Kupfer v. Pellman, 67 Misc. 149, 121 N. Y. S. 1081. 2 Correspondence of Bulk With Sample. Terminology. The obli- gation described in sub-section (a) existed at common law in this state, but was known as an "express" warranty. Staiger v. Soht, 116 App. Div. 874, 102 N. Y. S. 342, affirmed 191 N. Y. 527, 84 N. E. 1120; Lar- rowe Milling Co. v. Lyons Beet Sugar Refining Co., 137 App. Div. 732, 122 N. Y. S. 567; Waring v. Mason, 18 Wend. (N. Y.) 425, and cases cited in note 1 above. Express warranties survived acceptance at com- mon law in this state, while implied warranties did not. See cases cited under section 130, post. But although the name applied to the warranty on a sale by sample has been changed from "express" to "implied," the remedy open to a buyer on breach of an implied war- ranty and the effect of acceptance under an implied warranty have also been changed so that an implied warranty survives acceptance. See notes to sections 130 and 150, post. Therefore, this change in nomenclature apparently has no practical effect. Where goods consist of several varieties and qualities of the same article, and the sample is made by mixing proportionate parts of the different varieties and qualities, the warranty is that the whole quan- tity, if mingled together, would be of a quality equal to that of the sample. Leonard v. Fowler, 44 N. Y. 289. 3 Right to Inspection. Draftsman's Note. Regarding this sub- section Professor Williston says (Williston on Sales, p. 349) : "It is a general principle of the law of sales that unless the terms of the con- tract necessarily imply the contrary, the buyer shall not be obliged to Digitized by Microsoft® CONDITIONS AND WARRANTIES. 89 § 97. Implied Warranties in Sale by Sample. pay the price unless and until he has had an opportunity to inspect the goods. The effect of the provision in regard to inspection in section 16 of the Sales Act [N. Y. P. P. L., sec. 97] is that the mere fact that a contract to sell or a sale is made by sample does not exclude the operation of the general rule, and that, therefore, the buyer need not take the goods or pay the price until he had a chance to see them, and the seller is bound to give him a chance." The sub-section is also said by Professor Williston to be based on the English case of Lorymer v. Smith, 1 B. & C. 1, 8 E. C. L. 1. (Williston on Sales, p. 349, note). For cases illustrating the right of inspection attaching to all con- tracts of sale, including those by sample, see Croninger v. Crocker, 62 N. Y. 151 ; Pierson v. Crooks, 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831. Subdivision 3 of section 128 referred to in this sub-section provides that the buyer under a C. O. D. contract is not entitled to inspect the goods until he has paid the price. For a general discussion of the New York cases on inspection, see notes to section 128, post. * Merchantability. Common Law View. It seems doubtful whether this statement of the law is in accord with the pre-existing law in New York. Thus in Henry v. Talcott, 175 N. Y. 385, 389, 67 N. E. 617, the court discusses the warranty arising on a sale by sample and states : "In the absence of fraud the warranty does not cover latent defects, unless the seller is the manufacturer, when it may extend to latent defects growing out of the process of manufacture.'' And in Sands v. Taylor, S Johns. (N. Y.) 395, 4 Am. Dec. 374, the sale was by sample and it was held that there was no warranty of quality except that the wheat should correspond with the sample. Kent, Ch. J., said (p. 410) : "The cargo corresponded with the sample in quality of grain, and that was all that was intended by the exhibition of the sample." See also DeWitt v. Berry, 134 U. S. 306, 10 S. Ct. 536, 33 U. S. (L. ed.) 896; Benj. on Sales, 7th ed., page 684. Draftsman's Note. Professor Williston says of this sub-section (Williston on Sales, p. 350) : "As should be the case, however, where the buyer inspects or has an opportunity to inspect the bulk, but the defect in the goods is of such a character that inspection will not reveal it, so in the case of a sale by sample, if the sample is subject to a latent defect, and the buyer reasonably relies on the seller's skill or judgment, the buyer is entitled not simply to goods like the sample, but to goods like those which the sample seems to represent, that is merchantable goods of that kind and character. As has already been said, it was thought Digitized by Microsoft® 90 BOGERT'S NEW YORK SALES ACT. § 97. Implied Warranties in Sale by Sample. in drawing the Sales Act that this wider obligation should be re- stricted to the case of dealers in goods of the kind in question, but as to dealers of that character, the provision is clearly sound." In discussing this situation the Supreme Court of Pennsylvania in Boyd V. Wilson, 83 Pa. St. 319, 324, 24 Am. Rep. 176, says : "The sam- ple under such circumstances, pure and simple, becomes a guaranty only that the articles to be delivered shall follow its kind, and be simply merchantable." This case is followed in Selser v. Roberts, lC;i Pa. St. 242, 246. Digitized by Microsoft® PART II. TRANSFER OF PROPERTY AND TITLE. CHAPTER VII. TRANSFER OF PROPERTY AS BETWEEN BUYER AND SELLER. § 98. NO PROPERTY PASSES UNTIL GOODS ARE ASCERTAINED. Where there is a contract to sell imascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained, but property in an undivided share of as- certained goods may be transferred as provided in sec- tion eighty-seven.* Effect of Section. This section is declaratory of the com- mon law. English Act. Section 16 of the Sale of Goods Act is the equivalent of this section, except that it does not contain the last clause found in the American section. The doc- trine of the section referred to in this last clause (N. Y. P. P. L., sec. 87) is not recognized in England. 1 Goods Must Be Identified. The law stated in the section is ele- mentary. Obviously parties cannot transfer the property in goods which are not known and identified. "It is a rule asserted in many legal authorities, but which may be quite as fitly called a rule of reason and logic as of law, that in order to an executed sale, so as to transfer a title from one party to another, the thing sold must be ascertained." Kimberly v. Patchin, 19 N. Y. 330, 332, 75 Am. Dec. 334. For cases to the same effect, see Crofoot v. Bennett, 2 N. Y. 258; Gardiner v. Suydam, 7 N. Y. 357; Cornell v. Clark, 104 N. Y. 451, 457, 10 N. E. 888; Anderson v. Read, 106 N. Y. 333, 13 N. E. 292; Lighthouse v. 91 Digitized by Microsoft® 92 BOGERT'S NEW YORK SALES ACT. § 98. No Property Passes until Goods are Ascertained. Buffalo Third Nat. Bank, 162 N. Y. 336, 56 N. E. 738; Rapelye v. Mackie, 6 Cow. (N. Y.) 250; Comfort v. Kiersted, 26 Barb. (N. Y.) 472. The exception which may exist in the case of the sale of an un- divided share of ascertained goods has been explained under section 87, ante. Digitized by Microsoft® TRANSFER OF PROPERTY. . 93 99. When Property in Specific Goods Passes. § 99. PROPERTY IN SPECIFIC GOODS PASSES WHEN PARTIES SO INTEND. 1. Where there is a contract to sell specific or ascer- tained goods, the property in them is transferred to the buyer at such time as the parties to the contract in- tend it to be transferred.* 2. For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the con- tract, the conduct of the parties, usages of trade and the circumstances of the case.* Effect of Section. This section is obviously declaratory of elementary law. English Act. The American section follows closely sec- tion 17 of the Sale of Goods Act. 1 Intent the Controlling Factor. In discussing the passing of the property in goods, the court in Terry v. Wheeler, 25 N. Y. 520, 525, said : "The questions which arise in such cases, as to sales, are ques- tions of intention, such as arise in all other cases of the interpreta- tion of contracts ; and when the facts are ascertained, either by the written agreement of the parties or by the findings of a court, as they are here, they are questions of law." See also, Burt v. Dutcher, 34 N. Y. 493, 496. Where the parties expressly provide for the vest- ing of the property in parts of the goods at different stages of the contract, the courts will follow their expressed intent. Hurd v. Cook, 75 N. Y. 454. The use of the word "sell" is not conclusive as indicat- ing an intent to make a present sale. Decker v. Furniss, 14 N. Y. 611. 2 Method of Ascertaining Intent. "It is competent for parties to an executory contract for the sale of personal property, to provide in their agreement where and on what event the title shall vest in the vendee. If there is no express agreement on the subject, the ques- tion is to be solved by considering all the terms of the contract in connection with the acts of the parties, and applying thereto the rules Digitized by Microsoft® 94 BOGERT'S NEW YORK SALES ACT. § 99. When Property in Specific Goods Passes. of law applicable to the case." Cornell v. Clark, 104 N Y. 451, 455, 10 N. E. 888. "The intention of the parties, in agreements of this nature, is to be collected from the whole instrument; it is the inten- tion, thus collected, that the court is bound to carry into effect, and in doing so, the literal import of particular words, when inconsistent with the intention, thus ascertained, may be, and, in numerous cases, has been disregarded. (3 Duer 309)." Kelley v. Upton, 5 Duer (N. Y.) 336, 340. As to the possible effect of custom on the passage of title, see Groat v. Gile, 51 N. Y. 431. How the intent may be proved is obviously a question of evidence which needs no extended discussion here. Digitized by Microsoft® TRANSFER OF PROPERTY. 95 100. Rules for Ascertaining Intention. § 100. RULES FOR ASCERTAINING INTEN- TION. Unless a different intention appears, the fol- lowing are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.^ Rule 1. Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.* Rule 2. Where there is a contract to sell specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done.^ Rule 3. 1. When goods are delivered to the buyer "on sale or return," or on other terms indicating an in- tention to make a present sale, but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the property in the seller by returning or tendering the goods within the time fixed in the con- tract, or, if no time has been fixed, within a reason- able time.* 2. When goods are delivered to the buyer on ap- proval or on trial or on satisfaction, or other similar terms, the property therein passes to the buyer — (a) When he signifies his approval or acceptance to the seller or does any other act adopting the trans- action ; (b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving no- Digitized by Microsoft® 96 BOGERT'S NEW YORK SALES ACT. § 100. Rules for Ascertaining Intention. tice of rejection, then if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reason- able time. What is a reasonable time is a question of fact.^ Rule 4. 1. Where there is a contract to sell unascer- tained or future goods by description, and goods of that description and in a deliverable state are uncondition- ally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the ap- propriation is made." 2. Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not) for the pur- pose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in section one hundred and one. This presumption is applicable, although by the terms of the contract the buyer is to pay the price before re- ceiving delivery of the goods, and the goods are marked with the words "collect on delivery" or their equiva- lents.' Rule 5. If the contract to sell requires the seller to de- liver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.' Digitized by Microsoft® TRANSFER OF PROPERTY. 97 § 100. Rules for Ascertaining Intention. Effect of Section. Section 100 is believed to express the common law of New York, except that the last sentence of Rule 4 reverses the rule regarding the effect of shipment in C.O.D. sales. See note 7 below. English Act. The Sale of Goods Act, section 18, differs in some material respects from this section of the Sales Act. For a complete statement of the differences reference is made to the English act printed in the appendix, post. Roughly the distinctions are that the English act (1) in- serts a rule that the necessity to weigh or measure to ascer- tain the price postpones the passing of the property; (2) makes no distinction between the sale or return contract and the sale on approval and applies the rules laid down for the latter in the American act to the former; (3) omits the last sentence of Rule 4, subdivision 2, of the American act; and (4) does not contain Rule 5 of the Sales Act. The following English cases have been decided under the corresponding section of the English act: Truman v. At- tenborough, 103 L. T. N. S. 218, holding that where goods are delivered on approval with a statement that "These goods remain the property of W. Truman, Limited until invoiced by them," the intention of the parties con- trols and title does not pass on delivery but does pass when the goods are invoiced to the buyer, even though such in- voicing was procured by fraud; Laing v. Barclay, [1908] A. C. 35, 97 L. T. N. S. 816, in which case it was decided that, where a contract is made for the building of a ship, payments to be. made in installments, the last payment six months after the delivery of the ship, it is apparent that the parties intended that the property should not pass un- til the vessel was completed, and such intent will be given effect; Weiner v. Smith, [1906] 2 K. B. 574, 95 L. T. N. S. Bogert's Sales — 7. Digitized by Microsoft® 98 BOGERT'S NEW YORK SALES ACT. § 100. Rules for Ascertaining Intention. 438, holding that where goods are deHvered under a con- tract containing the clause, "Goods had on approbation or on sale or return remain the property of Samuel Weiner un- til such goods are settled for or charged," there is an ex- pressed intent that title shall not pass until payment or credit given, and hence the person to whom the goods are delivered cannot give good title to an innocent purchaser prior to such payment or charging; Reid v. Macbeth, [1904] A. C. 223, 90 L. T. N.'s. 422, holding that where a con- tract for the building of a ship provides that the materials, as the building proceeds, become the property of the buyer, and plates for use in the ship have been passed by Lloyd's surveyor and marked with the number of the ship and po- sition in it, they are nevertheless the property of the seller, and on his bankruptcy pass to his trustee. The rule applies that they have not been appropriated "unless they have been affixed to, or in a reasonable sense made part of, the corpus." In Harland v. Burstall, 84 L. T. N. S. 324, it was held that where the defendant agreed to ship to the plaintiff 500 loads of timber and actually shipped 470, the title to the timber did not pass to the buyer. When a person to whom goods have been delivered on a "sale or return" contract pawns them, the property passes and the pawnee acquires good title against the person who delivered the goods on "sale or return." "The contract by which goods are delivered 'on sale or return' means this : the purchaser may return the goods within a reasonable time, and the option of return belongs solely to the pur- chaser; the other party cannot even ask for the return of the goods ; the only right of the other party is to sue for the price if the goods are not returned." Kirkham v. At- Digitized by Microsoft® TRANSFER OF PROPERTY. 99 § 100. Rules for Ascertaining Intention. tenborough, [1897] 1 Q. B. 201, 75 L. T. N. S. 543, 544. Where goods are delivered on "sale or return" with an understanding that the property should not pass except on payment of cash, a pledgee of the goods from the buyer before payment of the price by the buyers gets no title. Edwards v. Vaughan, 26 Times L. Rep. 349, affirmed 26 Times L. Rep. 545. 1 Rules Merely Presumptive. The rules laid down under section 100 are merely rules of presumption, and if the parties manifest their intention clearly, even though it be contrary to the presumption ordi- narily arising, the title will pass as the intention indicates. Terry v. Wheeler, 25 N. Y. 520; Porter Mfg. Co. v. Edwards, 29 Hun (N. Y.) 509. 2 Unconditional Contract to Sell Specific Goods. "But it is the general rule of the common law that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid nor the goods sold delivered to the purchaser." Bradley V. Wheeler, 44 N. Y. 495, 502. Rule 1 states the unquestioned com- mon law of this state. For similar holdings see Joyce v. Adams, 8 N. Y. 291, 296; Terry v. Wheeler, 25 N. Y. 520, 525; Bissell v. Bal- com, 39 N. Y. 275 ; Van Brocklen v. Smeallie, 140 N. Y. 70, 72, 35 N. E. 415; Giordano v. Nizzari, 115 N. Y. S. 719; Lansing v. Turner, 2 Johns. (N. Y.) 13; Hamburger v. Rodman, 9 Daly (N. Y.) 93; Oly- phant V. Baker, S Den. (N. Y.) 379. Delivery. "A sale of a specified chattel may pass the property therein to the vendee and vest the title in him without delivery." Groat v. Gile, 51 N. Y. 431, 437. Delivery is strong but not conclusive evidence of intent to pass title. Cornell v. Clark, 104 N. Y. 451 ; Nash v. Weaver, -23 Hun (N. Y.) 513. Delivery of a smaller quantity than that or- dered does not pass title to the buyer. Bruce v. Pearson, 3 Johns. (N. Y.) 534. A delivery of the key of a warehouse in which goods are deposited is a sufficient delivery of the goods to transfer the property. Wilkes v. Ferris, 5 Johns. (N. Y.) 335, 4 Am. Dec. 364. Inspection. The fact that inspection is to be allowed and is not made has no ef- fect on the passage of the title, where there is no evidence that the goods were not as ordered. Gass v. Astoria Veneer Mills, 121 App. Div. 182, 105 N. Y. S. 794. Digitized by Microsoft® 100 BOGERT'S NEW YORK SALES ACT. § 100. Rules for Ascertaining Intention. A contract for the sale of shares of stock, at a specified price, "pay- able and deliverable, seller's option, in this year, with interest at the rate of six per cent per annum," effects a present sale of the stock, so that the seller becomes a quasi-trustee for the buyer and the buyer is entitled to dividends declared on the stock after the making of the contract. Currie v. White, 45 N. Y. 822. Cash Sales. A provision in a contract of sale at common law in this state that payment of the price should be made on delivery of the goods ren- dered the contract a conditional sale, and title did not pass until payment, unless the condition was waived. "It is too well set- tled to require the citation of authority, that where a sale of per- sonal property is made upon condition that the stipulated price shall be paid upon delivery, title does not pass until payment made, unless the vendor waive the condition." Empire State Type Founding Co. V. Grant, 114 N. Y. 40, 43, 21 N. E. 49. For similar holdings see Smith V. Lynes, S N. Y. 41; Hammett v. Linneman, 48 N. Y. 399; Dows V. Kidder, 84 N. Y. 121; Schryer v. Fenton, IS App. Div. 158, 44 N. Y. S. 203; Lange v. Pisch, 9 Misc. 475, 30 N. Y. S. 220; Scher V. Roher, 34 Misc. 792, 69 N. Y. S. 929; Daly v. Crawford, 72 Misc. 272, 131 N. Y. S. 220. For expressions apparently contrary, see Hay- den V. Demets, S3 N. Y. 426, 431 ; Morey v. Medbury, 10 Hun (N. Y.) 540. Act to be Performed on Delivery. The sale is likewise conditional where delivery is not to be made until the giving of a note for the price (Osborn v. Gantz, 60 N. Y. 540; Adams v. Roscoe Lumber Co. 159 N. Y. 176, S3 N. E. 80S; Hag- gerty v. Palmer, 6 Johns. Ch. (N. Y.) 437), or the payment of the price in labor (Strong v. Taylor, 2 Hill. (N. Y.) 326). Title does not pass until the note is given or the labor done. Waiver of Condition. The condition is waived and title passes if the goods are uncondi- tionally delivered to the buyer. Whether or not such delivery has been made is a question of fact dependent on the circumstances of each case. The following cases discuss the question : Gibson v. Tobey, 46 N. Y. 637, 7 Am. Rep. 397; Husted v. Ingraham, 75 N. Y. 251; Parker v. Baxter, 86 N. Y. 586 ; Adams v. Roscoe Lumber Co., 159 N. Y. 176, 53 N. E. 805 ; Potter Printing Press Co. v. Schreiner, 47 App. Div. 531, 62 N. Y. S. 492; Hirsch Lumber Co. v. Hubbell, 143 App. Div. 317, 128 N. Y. S. 85. The New York rule regarding cash sales would seem to be un- affected by Rule 1 of section 100 since that rule applies only to un- Digitized by Microsoft® TRANSFER OF PROPERTY. § 100. Rules for Ascertaining Intention. conditional sales, and the New York courts have regarded cash sales as conditional sales. Rule 4, subdivision 2 would also seem to have no effect on the pre-existing law because it applies only to cash sales of unascertained goods. 8 Goods Not in Deliverable State. This rule states a well recog- nized principle of the common law. 'It is a familiar principle that if anything remains to be done by a seller of merchandise to put the same in a deliverable shape, so that the purchaser has an option of refusal to accept, in case such things are not done, no title passes." Blossom V. Shotter, 59 Hun 481, 13 N. Y. S. 523, affirmed 128 N. Y. 679, 29 N. E. 145. See also Pinckney v. Darling, 3 App. Div. 553, 38 N. Y. S. 411, affirmed 158 N. Y. 728, 53 N. E. 1130; Dexter v. Norton, 47 N. Y. 62, 64, 7 Am. Rep. 415. In Automatic Time Table Advertising Co. v. Automatic Time Table Co., 208 Mass. 252, 94 N. E. 462, this sec- tion of the Sales Act was referred to and it was held that title to cer- tain machines agreed to be sold did not pass because they were in- complete. The court said (page 256) : "Since something had to be done to the machines to put them in a deliverable state and a different intention did not appear, the property in the six machines here in question did not pass on the execution of the contract. The trans- action was governed by the sales act (St. 1908, c. 237), and it is there so provided in § 19, Rule 2. The rule was the same at common law." Property in Vessels Under Construction. Thus it has been held that, where a barge is to be constructed and paid for by installments, the property in no part of the barge vests until it is complete. Andrews v Durant, 11 N. Y. 35, 62 Am. Dec. 55. For other cases upon the passing of the property in vessels, see Seymour v. Montgomery, 1 N. Y. 463 ; Interstate Steamboat Co. v. Syracuse First Nat. Bank, 87 Hun 93, 33 N. Y. S. 966. Illustrative Cases. The following cases illustrate the principle of Rule 2: Bayne v. Hard, 77 App. Div. 251, 79 N. Y. S. 208, affirmed 174 N. Y. 534, 66 N. E. 1104 (property in coffee did not pass till gradings were made) ; McConihe v. New York, etc., R. Co., 20 N. Y. 495, 75 Am. Dec. 420 (railroad cars incomplete ; no title passed) ; Decker v. Furniss, 14 N. Y. 611 (seller to fit up boat) ; Joyce v. Adams, 8 N. Y. 291 (goods to be weighed to ascertain identity) ; McDonald v. Hewett, 15 Johns. (N. Y.) 349, 8 Am. Dec. 241 (timber to be inspected before accept- ance) ; Halterline v. Rice, 62 Barb. (N. Y.) 593 (cutter to be finished). Weighing, Measuring or Testing. The English Sale of Goods Act provides in section 18, rule 3, that where weighing, measuring or testing the goods is necessary Digitized by Microsoft® 102 BOGERT'S NEW YORK SALES ACT. § 100. Rules for Ascertaining Intention. to ascertain the price, title does not pass. But this provision was not adopted in the Sales Act and is not in accord with the com- mon law of New York. In speaking of the rule suspending the passing of title till weighing, measuring or testing, the court, in Groat V. Gile, 51 N. Y. 431, 437, says : "That rule has reference to a sale, not of specific property clearly ascertained, but of such as is to be separated from a larger quantity, and is necessary to be identified before it is susceptible of delivery. The rule or principle does not apply where the number of the particular articles sold is to be ascertained for the sole purpose of ascertaining the total value thereof at certain specified rates or a designated fixed price." In other words, the rule in New York has had no application except as a rule of designation for the purpose of making the subject matter of the sale ascertained. For additional cases holding to this effect, see the following: Blossom v. Shotter, 59 Hun 481, 13 N. Y. S. 523, affirmed 128 N. Y. 679, 29 N. E. 145; Crofoot v. Bennett, 2 N. Y. 258; Brad- ley V. Wheeler, 44 N. Y. 495 ; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 86; Sanger v. Waterbury, 116 N. Y. 371, 22 N. E. 404; Pinckney v. Darling, 3 App. Div. 553, 38 N. Y. S. 411, affirmed 158 N. Y. 728, 53 N. E. 1130; Good v. Curtis, 31 How. Pr. (N. Y.) 4. But a few older cases seem to give to weighing or measuring, when necessary merely to fix the price, the effect of suspending the passing of the property. See Uhlman v. Day, 38 Hun (N. Y.) 298; Ward v. Shaw, 7 Wend. (N. Y.) 404; Andrew v. Dieterich, 14 Wend. (N. Y.) 31; Olyphant v. Baker, 5 Den. (N. Y.) 379; Rapelye v. Mackie, 6 Cow. (N. Y.) 250; Chapin v. Potter, 1 Hilt. (N. Y.) 366. In view of the later expressions of the Court of Appeals, however, these cases can hardly be considered to express the law upon this point. * Sale or Return. Rule 3, paragraph 1, is believed to state the common law of New York. Thus in Greacen v. Poehlman, 191 N. Y. 493, 84 N. E. 390, a contract was made for the sale of certain boots with privilege of return, and the boots were taken in June and return made in December, and it was held that it should have been left to the jury to determine whether the return was within a reasonable time. The Court said: "As no time was fixed by the contract testified to by the defendant within which the boots were to be returned, the de- fendant's legal obligation was to do that within a reasonable time. Whether they were in fact returned within a reasonable time was, under the circumstances here shown, a question that should have been submitted to the jury." The court also quoted with approval (page 497) the following extract from Parsons on Contracts (vol. 1, 539) : "There is another class of sales on condition, often called 'contracts Digitized by Microsoft® TRANSFER OF PROPERTY. 103 § IW). Rules for Ascertaining Intention. of sale or return.' In these the property in the goods passes to the purchaser, subject to an option in him to return them within a fixed time; or a reasonable time; and if he fails to exercise this option by so returning them, the sale becomes absolute, and the price of the goods may be recovered in an action for goods sold and delivered." Illustrative Cases. As sustaining the rule laid down in the Sales Act, see also Levis v. Pope Motor Car Co., 202 N. Y. 402, 406, 407, 95 N. E. 815 (automobile sold on sale or return contract; title vested subject to being divested by exercise of option) ; Wooster v. Sage, 67 N. Y. 67 (purchase of bonds with privilege of returning if buyer "became sick of them") ; Fiss Horse Co. v. Schwartzchild, 121 N. Y. S. 292 (sale of horse with option to return in a couple of days ; failure to return in 48 hours renders buyer absolutely liable for price) ; Waters' Patent Heater Co. V. Tompkins, 14 Hun (N. Y.) 219 (return to agent of seller) ; Lyon V. Motley, 9 Misc. 500, 30 N. Y. S. 218 (obligation to return not satisfied by return to railroad depot at place where buyer does business; must return to seller's place of business and pay return freight) ; Costello v. Herbst, 18 Misc. 176, 41 N. Y. S. 574; Lord V. Kenny, 13 Johns. (N. Y.) 219 (horse sold on sale or return contract) ; Giles v. Bradley, 2 Johns. Cas. (N. Y.) 253 (sale of negro on sale or return contract) ; Crandall v. Haskins, 45 Plun 10, 10 N. Y. St. Rep. 107 (return within a reasonable time) ; Pinney v. Hall, 1 Hill (N. Y.) 89 (agreement to take other goods in place of those to be returned) ; Sutton v. Crosby, 54 Barb. (N. Y.) 80 (return of goods by carrier; when title revests in seller). * Sale on Approval. Rule 3, paragraph 2, is declaratory of the common law. Thus in Carter v. Wallace, 32 Hun (N. Y.) 384, the buyer of a horse agreed to take the horse and use it and if the horse drove to suit him, he was to keep it and pay $130 therefor. The animal died shortly after delivery and before any approval had been expressed, and it was held that the seller was not entitled to recover the pur- chase price. The title would not pass until approval. And in Fiss Horse Co. v. Kiernan, 108 N. Y. S. 1105, it was held that where a buyer takes a horse with a right of trial for only 48 hours before ac- cepting or returning it, a retention of it for a longer time than 48 hours, even though but a short time, transferred the property in the horse to the buyer. Illustrative Cases. For similar cases see Russell v. Wolff, 19 Misc. 536, 43 N. Y. S. 1077 ; Cornell v. Fox, 95 App. Div. 71, 88 N. Y. S. 482 ; McDonald v. Pierson, 38 Barb. (N. Y.) 128. The rule is also well settled in other Digitized by Microsoft® 104 BOGERT'S NEW YORK SALES ACT. § 100. Rules for Ascertaining Intention. jurisdictions. In re Froehlich Rubber Refining Co., 139 Fed. 201; Allyn V. Burns, 37 Ind. App. 223, 76 N. E. 636; Dando v. Foulds, 105 Pa. St. 74; Fairfield v. Madison Mfg. Co., 38 Wis. 346. ^ Appropriation to the Contract. Rule 4, paragraph 1, is in ac- cord with the common law of this state with the possible exception noted below relating to the forcing of title on a buyer by means of ten- der. Thus in Cooke v. Millard, 65 N. Y. 352, 22 Am. Rep. 619, the contract was for the sale of lumber to be cut and dressed by the seller, and the buyer selected the piles from which his lumber was to be taken and directed that when ready it should be delivered on the seller's dock and notice of readiness to deliver given. The lumber was de- stroyed by fire after it was made ready for delivery, placed on the seller's dock and notice given, but before defendant had taken it away or exercised any control over it. It was here held that there had not been sufficient appropriation by the seller to pass title. In discussing the si-bject of appropriation, the court said (pp. 365-366) : "Proceed- ing on the view that this was an executory contract, it might still pass into the class of executed sales by acts of 'subsequent appropria- tion.' In other words, if the subsequent acts of the seller, combined with evidence of intention on the part of the buyer, show that specific articles have been set apart in performance of the contract, there may be an executed sale and the property in the goods may pass to the purchaser. 1= * * This doctrine requires the assent of both parties, though it is held that it is not necessary that such assent should be given by the buyer subsequently to the appropriation by the vendor. It is enough that the minds of both parties acted upon the subject and assented to the selection. The vendor may be vested with an im- plied authority by the vendee to make the selection and thus to vest the title in him. * * * This doctrine would be applicable to exist- ing chattels where a mere selection from a mass of the same kind was requisite. On the other hand, if the goods are to be manufactured according to an order, it would seem that the mind of the purchaser after the manufacture was complete, should act upon the question whether the goods had complied with the contract. * * * This point may be illustrated by the case of a sale by sample, where the seller agrees to select from a mass of products certain items corresponding with the sample, and forward them to a purchaser. The act of selection by the vendor will not pass the title, for the plain and satisfactory reason, that the purchaser has still remaining a right to determine whether the selected goods correspond with the sample." Incorporation of Material. When the seller furnishes the larger part of the materials to be Digitized by Microsoft® TRANSFER OF PROPERTY. 105 § 100. Rules for Ascertaining Intention. used in making watches, although the buyer furnishes minor parts, the title to the watch movements remains in the seller until they are complete and delivered. Matter of Non-Magnetic Watch Co., 89 Hun 196, 34 N. Y. S. 1017. The property in woodwork to be built into a house is not appropriated to the contract so as to pass title to the owner of the house until it is incorporated into the house. Johnson V. Hunt, 11 Wend. (N. Y.) 135. The buyer's assent to appropriation may precede appropriation, but the goods appropriated by the seller must meet the requirements of the contract. Mitchell v. LeClaire, 165 Mass. 308, 43 N. E. 117. Effect of Tender in New York. A peculiar doctrine of the New York common law was that, where the seller tendered goods in accordance with the contract and the buyer refused to accept them, the seller could recover the contract price "in which case he holds the property as trustee for the vendee, and is bound to deliver it, whenever demanded, upon receiving pay- ment of the price.'' Hayden v. Demets, 53 N. Y. 426, 431. See also Bement v. Smith, IS Wend. (N. Y.) 493; Mason v. Decker, 72 N. Y. 595, 28 Am. Rep. 190. This rule meant that the property in goods could be forced upon the buyer by tender, so that apparently the buyer's con- sent was not necessary to the appropriation of the goods in such a case. In this respect possibly the common law was out of accord with the rule of the act. Section 144, post, continues the New York rule re- garding the effect of tender only to a limited extent, namely, in cases where the goods are not readily resalable. See notes to section 144, post. For a somewhat peculiar case upon the effect of refusal of ten- der upon the passage of the property, see Schwab v. Oatman, 198 N. Y. 545, 92 N. E. 1101, reversing 129 App. Div. 274, 113 N. Y. S. 910, on the dissenting opinion of McLaughlin, J., below. ■^ Appropriation by Delivery to Carrier. "When goods are or- dered to be sent by a carrier, a delivery to the carrier operates as a de- livery to the purchaser, in whom the property immediately vests, subject to the vendor's right of stoppage in transitu, and the goods, in the course of their transit, are at the risk of the purchaser." Baker v. Bourcicault, 1 Daly (N. Y.) 23, 28. Thus upon the sale of 500 bags of cocoa to be shipped from Bahia to New York, the buyer suffers the loss occasioned during transit by reason of the cocoa becoming wet. The title passed to the buyer upon the shipment at Bahia, that being an effectual appropriation. Mee v. McNider, 109 N. Y. 500, 17 N. E. 424. See also Rodgers v. Phillips, 40 N. Y. 519; Krulder v. Ellison, 47 N. Digitized by Microsoft® 106 BOGERT'S NEW YORK SALES ACT. § 100. Rules for Ascertaining Intention. Y. 36, 7 Am. Rep. 402; Smith v. Edwards, 29 Hun (N. Y.) 493, 496; People V. Haynes, 14 Wend. (N. Y.) 546, 28 Am. Dec. 530; White v. Schweitzer, 147 App. Div. 544. Particular Carrier Named. But where the buyer directs the seller to ship the goods by a par- ticular carrier and the seller sends them by another carrier, title does not pass to the buyer and the creditors of the buyer can obtain no rights by levying on the goods while in transit. Hills v. Lynch, 3 Robt. (N. Y.) 42. And where goods are ordered sent by canal and they are shipped by land, delivery to the carrier does not pass the title to the buyer. Corning v. Colt, S Wend. (N. Y.) 253. See also Wheelhouse v. Parr, 141 Mass. 593, 6 N. E. 787. The words parenthet- ically placed in this rule, namely, "whether named by the buyer or not," probably refer to the situation where the buyer has named no carrier at all, and not to that where the carrier has specified the means of transit. If the words of the section indicated that the seller was at liberty to select any carrier he desired, regardless of the buyer's expressed wish, the rule would apparently change the common law. Where the contract of sale does not expressly or impliedly give the seller authority to dispatch the goods to the buyer, the seller cannot appropriate the goods to the contract and pass title to the buyer by delivery to a carrier. Hague v. Porter, 3 Hill (N. Y.) 141. For the exception existing under section 101, see notes to that sec- tion, post. C. O. D. Shipments. The last sentence of Rule 4 is believed to be contrary to the com- mon law of this state. The decisions are few, and the subject has been in doubt. Thus in Baker v. Bourcicault, 1 Daly (N. Y.) 23, it was held that where goods were shipped C. O. D. from New York to New Orleans and were lost at sea, the loss fell on the seller, since delivery and payment were to be simultaneous acts and title was not to pass until delivery. And in Conway v. Bush, 4 Barb. (N. Y.) 564, the action was trover by a buyer against a car- rier to recover the value of hops sold to the plaintiff and shipped to the defendant to be delivered on the payment of the purchase price. It was held that the title did not pass until payment and, plaintiff hav- ing neglected to call for the goods after notice, and not having paid for them, the seller was justified in shipping them to another place. In Higgms v. Murray, 73 N. Y. 252, tents were manufactured to order and shipped C. O. D. It was held that the contract was one for work and labor and the defendant was liable for the contract price, even though the tents were lost during shipment. The court said (page Digitized by Microsoft® TRANSFER OF PROPERTY. 107 § 100. Rules for Ascertaining Intention. 2S5) : "It may be admitted that the plaintiff retained the title as se- curity for the debt, and yet the defendant was liable for the debt in a proper personal action." The last case is hardly an authority be- cause of the fact that the court considered the contract not one for the sale of goods, but for work and labor. It is submitted that the few adjudications upon the subject in New York have tended to withhold the passing of the title until payment and hence conflict with the rule of the Sales Act, as expressed in the last sentence of Rule 4. * Delivery at Particular Place. The common law rule is believed to be expressed in Rule 5. Thus in Pacific Iron Works v. Long Island R. Co., 62 N. Y. 272, it was held that where a seller contracts to ship goods by boat City of Bridgeport, pay the freight and deliver the goods on board the boat at the buyer's place of residence, the title to the goods passes to the buyer when the goods arrive at his place of resi- dence on board the vessel named, regardless of whether the buyer called for and received the goods. "Had the consignor agreed with the consignees to deliver the goods to them at Rochester, the rule would be different. Then the con- signees would not be the owners till delivery at Rochester." Krulder V. Ellison, 47 N. Y. 36, 40, 7 Am. Rep. 402. For cases supporting Rule S, see Gourd v. Healy, 137 App. Div. 323, 122 N. Y. S. 7; Gass v. Astoria Veneer Mills, 121 App. Div. 182, 105 N. Y. S. 794; Manufacturers' Commercial Co. v. Rochester R. Co. 117 N. Y. S. 989; Ludlow v. Bowne, 1 Johns. (N. Y.) 1, 3 Am. Dec. 277; Woodford v. Patterson, 32 Barb. (N. Y.) 630. Terry V. Wheeler, 25 N. Y. 520, is apparently contra, but it would seem that the presumption ordinarily arising in the case of a contract to deliver at a particular place was overcome in that case by other evidence. Digitized by Microsoft® 108 BOGERT'S NEW YORK SALES ACT. § 101. Reservation of Seller's Rights. § 101. RESERVATION OF RIGHT OF POSSES- SION OR PROPERTY WHEN GOODS ARE SHIPPED. 1. Where there is a contract to sell spe- cific goods, or where goods are subsequently appropri- ated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of posses- sion or property in the goods until certain conditions have been fulfilled. The right of possession or property may be thus reserved notwithstanding the delivery of the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer.^ 2. Where goods are shipped, and by the bill of lading the goods are deliverable to the seller or his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill of lading, the property would have passed to the buyer on shipment of the goods, the sell- er's property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.* 3. Where goods are shipped, and by the bill of lad- ing the goods are deliverable to the order of the buyer or of his agent, but possession of the bill of lading is retained by the seller or his agent, the seller thereby re- serves a right to the possession of the goods as against the buyer.' 4. Where the seller of goods draws on the buyer for the price and transmits the bill of exchange and bill of lading together to the buyer to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honor the bill of exchange, and if he wrongfully retains the bill of lading Digitized by Microsoft® TRANSFER OF PROPERTY. 109 § 101- Reservation of Seller's Rights. he acquires no added right thereby. If, however, the bill of lading provides that the goods are deliverable to the buyer or to the order of the buyer, or is indorsed in blank, or to the buyer by the consignee named therein, one who purchases in good faith, for value, the bill of lading, or goods from the buyer will obtain the prop- erty in the goods, although the bill of exchange has not been honored, provided that such purchaser has re- ceived delivery of the bill of lading indorsed by the con- signee named therein, or of the goods, without notice of the facts making the transfer wrongful.* Effect of Section. The section is believed to be declara- tory of the common law. The right here discussed has been referred to commonly as the "jus disponendi" or "right of disposal." This section of the Sales Act differentiates between a reservation of the property in the goods and a reservation of the right to possession merely. The com- mon law cases appear not to have made this distinction clearly. Under the Sales Act bills of lading are given a wider degree of negotiability than they possessed at com- mon law (see sections 108-121, post), and this change may have some effect on the right of disposal exercised through bills of lading. While the effect of acts tending to reserve to the seller rights relating to the goods is not as clearly defined in the common law cases cited below as in the Sales Act, it is believed that the general results accomplished are the same. English Act. The Sale of Goods Act makes similar provisions in its section 19, except that the last sentence of Digitized by Microsoft® 110 BOGERT'S NEW YORK SALES ACT. § 101. Reservation of Seller's Rights. sub-section 2, the whole of sub-section 3 and the last sen- tence of sub-section 4 of the American act are not found in the English act. See appendix for the text of the sec- tion. In Cahn v. Pockett's Bristol Channel Steam Packet Co., [1899] 2 Q. B. 61, 79 L. T. IT. S. 55, it was held that, where a buyer receives at the same time from the seller a bill of lading and draft drawn on him, he is bound to accept the draft if he keeps the bill of lading, and if he refuses to accept the draft and retains the bill of lading and endorses it to a bona fide holder, the latter acquires no right to demand the goods from the carrier. The case seems to be affected by the English Factor's Act, although decided under the Sale of Goods Act also. 1 Reservation of Rights to Seller. Section 101 materially qualifies the second subdivision of rule 4 under section 100. Shipment does not always constitute an appropriation to the contract. For evidence that the seller could reserve rights of property and possession after ship- ment at common law, reference is made to the cases cited under the remaining notes upon this section. Sub-section 1 states the general principle that the right of reservation exists. Sub-sections 2, 3 and 4 illustrate the common methods of effecting reservation. 8 Bill of Lading Taken to Seller's Order. "If the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so not as agent or on behalf of the purchaser, but on his own behalf, he thereby reserves to himself a power of disposing of the property, and consequently there is no final appropriation, and the property does not on shipment pass to the purchaser." Farmers', etc., Nat. Bank v. Logan, 74 N. Y. 568, 578. See also Dows v. National Exch. Bank, 91 U. S. 618, 23 U. S. (L. ed.) 214. Rights of Correspondent Advancing Money. A correspondent of the consignee of goods who advances money and takes the bill of lading in his own name has rights similar to those of a seller treating a bill of lading similarly. The rule is laid down in Moors v. Kidder, 106 N. Y. 32, 40 N. E. 818, as follows: "Where a commercial correspondent, however set in motion by a principal for whom he acts, advances his own money or credit Digitized by Microsoft® TRANSFER OF PROPERTY. Ill § 101. Reservation of Seller's Rights. for the purchase of property and takes the bill of lading in his own name, looking to such property as the reliable and safe means of reimbursement up to the moment when the original principal shall pay the purchase price, he becomes the owner of the property instead of its pledgee, and his relation to the original mover in the transaction is that of an owner under a contract to sell and deliver when the purchase price is paid." But the ownership of the correspondent in this situation is "ownership so far only as is necessary to secure him for the advances he made upon the merchandise described in the bill of lading." Drexel v. Pease, 133 N. Y. 129, 136, 30 N. E. 732. Stoppage. Where a seller takes a bill of lading in his own name, the delivery of the goods to a ship chartered by the buyer is not an absolute delivery, and the transit of the goods does not cease with delivery on board ship so as to prevent a subsequent stoppage in transitu. Gossler v. Schepe- ler, S Daly (N. Y.) 476. Discounting Bank. The effect of taking the bill of lading in the name of an agent of the seller, such as a bank, is the same as that of taking the bill to the seller himself. Toledo First Nat. Bank v. Shaw, 61 N. Y. 283. Where a seller takes a bill of lading by which goods are deliverable on the order of a bank, and the bank discounts a draft on the buyer, the bank acquires "a lien upon it or title to it," and the buyer cannot transfer the property so as to defeat the right of the bank. Mechanics', etc., Bank v. Farmers', etc., Nat. Bank, 60 N. Y. 40, 47. Provision for Notice of Arrival. A direction in a bill of lading, running to the consignor, that the carrier shall notify the buyer of the arrival of the goods, does not give the buyer any rights in the goods, and the carrier is liable if he delivers to the buyer without directions from the consignor. Fur- man v. Union Pac. R. Co., 106 N. Y. 579, 13 N. E. 587. Presumption Rebuttable. But the presumption that the property in the goods is reserved by retention of a bill of lading in the seller's name is not conclusive, and may be rebutted by evidence that the seller intended the goods should become the buyer's at the time of shipment. Straus v. Wessel, 30 Ohio St. 211. 8 Retention of Bill to Buyer's Order. Where a seller ships goods, takes the bill of lading in the name of the buyer as consignee, and retains the bill of lading in his possession, neither title nor right to possession is in the buyer. "The right of a shipper to revoke a con- Digitized by Microsoft® 112 BOGERT'S NEW YORK SALES ACT, § 101. Reservation of Seller's Rights. signment, after the shipment has been made and a bill of lading mak- ing the goods deliverable to a consignee by name has been signed, and before the bill of lading is delivered to the consigjnee, cannot be questioned either on principle or authority, because until the bill of lading is parted with, no title to the property, nor any right to the possession or ownership, passes from the owner or shipper." Hauter- man v. Bock, 1 Daly (N. Y.) 366, 369. Effect of Discounting Draft with Bill Attached. "It is settled beyond dispute in this state, that the discount of a draft drawn by a consignor upon his consignee which is ac- companied by the delivery of a bill of lading to the party making the advance, passes to such party not only the legal title to such property, but, in the eye of the law, the transfer of the bill of lading is regarded as an actual delivery and an actual change of possession of the property.'' Commercial Bank v. Pfeiflfer, 108 N. Y. 242, 250, 15 N. E. 311. Hence it was held in this case that a bank taking a bill of lading by which goods were consigned to the buyer, with drafts on the buyer attached, acquired a legal title to the goods, so that the buyer was liable to the bank for the value of the goods. Where goods are consigned by A to B and the bills of lading and drafts attached are delivered to a bank which discounts the drafts, the bank acquires title to the goods represented by the bills, even though the bills were apparently non-negotiable and ran to the consignee. The title is solely for the purpose of allowing the bank to obtain the ad- vances made by it. Matter of Non-Magnetic Watch Co., 89 Hun 196, 34 N. Y. S. 1017. Carrier's Liability for Conversion. See Bailey v. Hudson River R. Co., 49 N. Y. 70, in which case it was held that where goods are shipped in payment of an advance made to the seller by the buyer, and the bill of lading calls for the delivery of the goods to the buyer, the carrier is liable to the buyer for conversion of the goods if he delivers them to another than the buyer by order of the seller, even though the seller did retain pos- session of the bill of lading. These cases tend to give to reservation of possession of the bill run- ning to the buyer a somewhat wider effect than the Sales Act. They seem to give to the seller in such a case rights of property as well as rights to possession. * Bill Sent with Draft Attached. "So, if the vendor deals with or claims to retain the bill of lading in order to secure the contract price, as when he sends it forward with a draft attached, and with direc- Digitized by Microsoft® TRANSFER OF PROPERTY. 113 § 101. Reservation of Seller's Rights. tiens that it is not to be delivered to the purchaser until payment of the draft, the appropriation is not absolute, and until payment or ten- der of the price, is conditional only, and until then the property of the goods does not pass to the purchaser." Farmers' etc., Nat. Bank V. Logan, 74 N. Y. 568, 578, 579. In this case it was held that, where a seller takes a bill of lading for goods shipped in such form that the goods are deliverable to a bank with whom he discounts a draft on the buyer, and the bank endorses the bill and stamps a statement there- on that the bill is to be delivered on acceptance of the draft, and the buyer accepts the draft and receives the bill of lading, he cannot trans- fer the goods to a bova fide purchaser so as to give him a better title to them than the bank, the draft not having been paid. The right to control or dispose of the goods until payment of the draft was re- served by this procedure. Those dealing with the buyer were charged with notice of the rights of the bank as evidenced by the bill of lad- ing. Draft Sent to Bank. Where a seller ships goods to a buyer but consigns them to himself and sends the bill of lading with draft attached to a bank, with di- rections to deliver the goods to the buyer on payment of the draft, the buyer reserves possession of the property as security for the pay- ment of the price, although the title has passed to the buyer. Sawyer v. Dean, 114 N. Y. 469, 21 N. E. 1012. Where the consignor of property, upon its shipment and before de- livery, draws a bill of exchange upon the consignee, and procures the same to be discounted at a bank upon the security of the bill of lading, which is transferred and delivered with it, the bank acquires title to the property described in the bill of lading, conditional upon the ac- ceptance of the draft; upon such acceptance the title passes to the acceptor; but upon the refusal to accept, the title continues unim- paired, and upon the receipt by the consignee of the property, and its conversion, he is liable to the bank for the money advanced upon it. Marine Bank v. Wright, 48 N. Y. 1. Rights of Buyer When He Receives Draft and Bill. Where a seller takes a bill of lading in the name of the buyer, and it is sent on to the buyer with instructions that he is not entitled to the goods until he pays a draft which will later be drawn on him, the buyer cannot acquire title to the goods without paying the draft. Cayuga County Nat. Bank v. Daniels, 47 N. Y. 631. Where a seller discounts a draft on the buyer with a bank, with bill of lading attached, and the bank sends the draft with bill attached Bogert'a Sales — 8. Digitized by Microsoft® 114 BOGERT'S NEW YORK SALES ACT. § 101. Reservation of Seller's Rights. to the buyer for acceptance, the buyer, by detaching the bill from the draft and getting possession of the goods, cannot, without payment of the draft, acquire title to the goods, and is liable to the bank for the conversion of the goods. Rochester Bank v. Jones, 4 N. Y. 497, 55 Am. Dec. 290. Where the seller ships goods in his own name, and draws a draft with bill of lading attached upon the buyer, payable at a bank, there is a reservation of the "possession and control" of the property until the payment of the draft. Plumb v. Bridge, 128 App. Div. 651, 113 N. Y. S. 92. Where stock is delivered with a draft for the price attached, de- livery is conditional on payment and the shares transferred on the books of the corporation by virtue of this possession are held under a defeasible title. Burnham v. Eyre, 123 App. Div. Ill, 108 N. Y. S. 452, affirmed 196 N. Y. 560, 90 N. E. 1156. Where a seller ships goods to the buyer, takes a bill of lading to his own order, endorses it to the buyer, and sends the bill thus endorsed, with draft attached, to a bank for collection from the buyer, the buyer has no right to the pos- session of the goods until the payment of the draft, nor may he inspect the goods before such payment. Whitney v. McLean, 4 App. Div. 449, 38 N. Y. S. 793. Where a seller ships goods to a buyer and sends the bills of lading with drafts for the price attached to an agent of the buyer, who accepts them and sends the bills to the buyer, the buyer acquires no title to the goods if the drafts are not paid, and the seller may resume control upon default in payment of the drafts. Ainis V. Ayres, 62 Hun 376, 16 N. Y. S. 905. Regarding this sub-section the Commissioners on Uniform State Laws have added the following note (American Uniform Commercial Acts, p. 85) ; "Sub-section (4) substantially follows the English Act so far as the words 'If, however.' The proviso beginning 'If, however,' is not in the English Act. It expresses, nevertheless, the English Law, because of the last Factor's Act. Cahn v. Pockett's Bristol Channel Steam Packet Co., [1899] 1 Q. B. 643. It undoubtedly is in accordance with mercantile understanding and convenience. The seller has trusted the buyer with the possession of the document of title and should bear the consequences. See Mechem, § 166." Digitized by Microsoft® TRANSFER OF PROPERTY. 115 § 102. Sale by Auction. § 102. SALE BY AUCTION. In the case of sale by auction — 1. Where goods are put up for sale by auction in lots each lot is the subject of a separate contract of sale.^ 2. A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made, any bidder may retract his bid; and the auc- tioneer may withdraw the goods from sale unless the auction has been announced to be without reserve.^ 3. A right to bid may be reserved expressly by or on behalf of the seller.' 4. Where notice has not been given that a sale by auction is subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ or induce any person to bid at such sale on his behalf, or for the auctioneer to employ or induce any person to bid at such sale on behalf of the seller or knowingly to take any bid from the seller or any person employed by him. Any sale contravening this rule may be treated as fraudulent by the buyer.* Effect of Section. Sub-section 1 of section 102 changes the common law of New York in relation to the entirety of the contract where several lots are offered at one auc- tion. See note 1 below. Otherwise the section expresses the common law. The act incorporating the Sales Act into the New York Personal Property Law (chapter 571, Laws of 1911) re- pealed section 20 of the General Business Law which read as follows: "§ 20. Conduct of auction sales. Goods sold Digitized by Microsoft® 116 BOGERT'S NEW YORK SALES ACT. § 102. Sale by Auction. at auction shall, in all cases, be struck off to the highest bidder. When struck off, if the contract be not immediate- ly executed by the payment of the price or the delivery of the goods, the auctioneer shall enter in a sale-book kept by him for that purpose a memorandum of the sale, speci- fying the nature, quantity and price of the goods, the terms of sale and the names of the purchaser and of the person on whose account the sale is made." See Laws 1911, ch. 571, § 2. The following provision of section 31 of the Personal Property Law, which was attached to the paragraph con- taining the old Statute of Frauds relating to sales of per- sonal property, was not repealed: "If goods be sold at public auction, and the auctioneer at the time of the sale, enters in a sale book, a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale was made, such memorandum is equivalent in effect to a note of the contract or sale, sub- scribed by the party to be charged therewith." See appendix. English Act. Section 58 of the Sale of Goods Act is the substantial equivalent of this section, except that the last clause of sub-section 2 of the American section is not contained in the English section. The following cases have been decided in England since the taking effect of the act: McManus v. Fortescue, [1907] 2 K. B. 1, 96 L. T. N. S. 444, holding that where an auction sale is con- ducted subject to an unnamed reserve price, each bid is an offer conditional upon its being up to the reserve price; and the fall of the hammer is an acceptance of the highest bid conditional upon its being as high as the reserve price; Rainbow v. Howkins, [1904] 2 K. B. 322, 91 L. T. N. S. 149, holding that after the fall of a hammer at an auction Digitized by Microsoft® TRANSFER OF PROPERTY. 117 102. Sale by Auction. sale the contract is perfected and the title passes to the buyer, even though the sale has been made at a price below that named in private instructions from the owner to the auctioneer; Fenwick v. Macdonald, Sc. Ct. Sess. 6 F. 850, holding that until the fall of the hammer on an auction sale, the seller may retract his offer as well as the bidder withdraw his bid. 1 Sale in Lots. This sub-section seems to alter the common law. Thus in Mills v. Hunt, 17 Wend. (N. Y.) 333, 20 Wend. (N. Y.) 431, it was held that, where five parcels of goods were separately struck off to one buyer at an auction sale, there was but one contract and the accept- ance and receipt of four of the parcels rendered the entire contract en- forceable under the Statute of Frauds. Under the Sales Act apparently each parcel would have been the subject of a separate contract of sale. See also Gray v. Walton, 107 N. Y. 254, 259, 14 N. E. 191. ^ When Sale Complete. This sub-section is considered declaratory. "In common parlance, and in the language of the auction room, prop- erty is understood to be 'struck off' or 'knocked down' when the auc- tioneer by the fall of his hammer or by any other audible or visible announcement, signifies to the bidder that he is entitled to the prop- erty on paying the amount of his bid, according to the terms of the sale. Three things are necessary to complete an auction sale. There must be a bidder, the property must be 'struck off' or 'knocked down,' and the person to whom it is struck off must complete his purchase by complying with the terms of the sale.'' Sherwood v. Reade, 7 Hill (N. Y.) 431, 439. The bidder may withdraw his bid at any time be- fore the hammer falls. Hibernia Sav., etc., Soc. v. Behnke, 121 Cal. 339, 53 Pac. 812 ; Fisher v. Seltzer, 23 Pa. St. 308, 62 Am. Dec. 335. This result is reached on the theory that each bid is an offer, and that the auctioneer merely invites offers. It is obvious that, if the con- tract is incomplete as to the bidder, it is also incomplete as to the sell- er and he may withdraw at any time before the hammer falls. * Seller May Reserve Right to Bid. "There is no doubt that it is competent for the owner of property who puts it up at auction to use some means to protect his interests and to see that his property is not sacrificed. It is conceded that he may do this either by fixing a price below which the property shall not be sold, and announcing that at the sale, or by publicly reserving to himself the right to make one or more bids if his interests shall require it. * * * But that is a very Digitized by Microsoft® 118 BOGERT'S NEW YORK SALES ACT. § 102. Sale by Auction. different thing from giving private instructions to the auctioneer, or from privately procuring one to bid upon the sale in the interest of the owner, who is not to buy the property if he should be the highest bidder. The essence of a sale at auction is that the property offered shall go to the highest real bidder. * * * For this reason it would seem, upon principle, that the private employment of a puffer by an owner at an auction sale rendered the sale void, and relieved the per- son to whom the property was struck off from the necessity of per- forming his contract." Bowman v. McClenahan, 20 App. Div. 346, 347, 348, 46 N. Y. S. 94S. See Minturn v. Main, 7 N. Y. 220. Right of Seller to Refuse Bids. "It is, we think, well settled that he may refuse a bid tendered in bad faith or proffered by a person who is insolvent or otherwise dis- abled from completing the purchase; otherwise the whole object of the sale might be defeated. Within the same reasoning comes the right, which we think he possesses, of refusing to accept trifling advances offered by bidders in the course of the sale, especially where that kind of bidding is initiated at the outset and the sum so offered is utterly incommensurate with the actual known value of the property." Tay- lor V. Harnett, 26 Misc. 362, 366, SS N. Y. S. 988. The seller may fix a minimum price on an auction sale. Hazul v. Dunham, 1 Hall (N. Y.) 6SS. For an instance of a lawful sale at which an agent of the seller took part in the bidding, see Ackerman v. Rubens, 167 N. Y. 405, 60 N. E. 750, S3 L.R.A. 867, 82 Am. St. Rep. 728. * Bids by Seller or Puffer. See note 3 above for evidence that sub-sections 3 and 4 express the common law. A question sometimes arises whether an agreement that one shall bid and another refrain from bidding at an auction sale is valid. Upon this question, see Hop- kins V. Ensign, 122 N. Y. 144, 150, 23 N. E. 306, 9 L.R.A. 731, in which case the court says : "It is now settled that agreements between two or more persons that all but one shall refrain from bidding, and per- mitting that one to become the purchaser, are not necessarily and un- der all circumstances void. They may be entered into for a lawful purpose, and from honest motives, and in such cases will be upheld, and they will not vitiate the purchase or necessarily destroy the com- pleted contracts to which they refer and in respect to which they are made." But see Doolin v. Ward, 6 Johns. (N. Y.) 194, for the early view of these agreements. For instances of agreements not to com- pete held valid, see Marsh v. Russell, 66 N. Y. 288; Marie v. Garrison, 83 N. Y. 14. Digitized by Microsoft® TRANSFER OF PROPERTY. 119 § 103. Risk of Loss. § 103. RISK OF LOSS. Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the prop- ty therein is transferred to the buyer the goods are at the buyer's risk whether delivery has been made or not,* except that — (a) Where delivery of goods has been made to the buyer, or to a bailee for the buyer, in pursuance of the contract and the property in the goods has been re- tained by the seller merely to secure performance by the buyer of his obligations under the contract, the goods are at the buyer's risk from the time of such delivery.* (b) Where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault.' Effect of Section. The section is probably declaratory of the common law, except as to subdivision (b), although the situation involved in subdivision (a) has been the sub- ject of much conflicting discussion. See notes below. Concerning this section the Commissioners on Uniform State Laws make the following note (American Uniform Commercial Acts, p. 87) : "The exception (a) is not contained in the English act. Otherwise the section is in substance the same as section 20 of the English act. The new exception represents the weight of authority and seems sound on principle. The principal situation at which it is aimed is where a conditional sale has been made, the goods delivered to the buyer, and very likely in use by him. The Digitized by Microsoft® 120 BOGERT'S NEW YORK SALES ACT. § 103. Risk of Loss. title is retained instead of taking a mortgage back, as would be done in the case of real estate. The beneficial interest is in the buyer, and the risk should be on him. See 9 Harv. L. Rev. 109; Mechem, § 635. Where goods are sent in compliance with an order, but marked C. O. D., even though the effect of this were to withhold the title (as to which, however, see section 19, Rule 4 (2) ), the risk would be thrown on the buyer. See Mechem, § 740, note (p. 616)." English Act. Section 20 of the Sale of Goods Act cov- ers the same ground as section 103, but the English act makes no provision for the situation stated in subdivision (a). 1 General Rule as to Risk of Loss. "The risk attends upon the title, not upon the possession, where there is no special agreement upon the subject." Terry v. Wheeler, 25 N. Y. 520, 524. Risk of loss may be separated from ownership. Bigler v. Hall, 54 N. Y. 167. In a leading English case (Martineau v. Kitching, L. R. 7 Q. B. 436, 453) the court, speaking through Blackburn, J., says: "As a general rule, res peril domino, the old civil law maxim, is a maxim of our law; and when you can shew that the property passed, the risk of the loss, prima facie, is in the person in whom the property is. If, on the other hand, you go beyond that, and shew that the risk attached to the one person or the other, it is a very strong argument for shewing that the prop- erty was meant to be in him. But the two are not inseparable. It may be very well that the property shall be in the one and the risk in the other." Illustrative Cases. For cases illustrating the rule laid down in the first paragraph of the section, see Lansing v. Turner, 2 Johns. (N. Y.) 13; Corrigan v. Sheffield, 10 Hun (N. Y.) 227; Carter v. Wallace, 32 Hun (N. Y.) 384; Koon v. Brinkerhoff, 39 Hun (N. Y.) 130; Joyce v. Adams, 8 N. Y. 291; McConihe v. New York, etc., R. Co., 20 N. Y. 49S, 75 Am. Dec. 420; Russell v. Carrington, 42 N. Y. 118, 1 Am. Rep. 498; Brad- ley V. Wheeler, 44 N. Y. 495; Foot v. Marsh, 51 N. Y. 288; Kein v. Tupper, 52 N. Y. 550; Purcell v. Jaycox, 59 N. Y. 288; Pacific Iron Works V. Long Island R. Co., 62 N. Y. 272; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42; Mee v. McNider, 109 N. Y. 500, 17 Digitized by Microsoft® TRANSFER OF PROPERTY. 121 103. Risk of Loss. N. E. 424. A case indirectly bearing upon the subject and decided under the American Sales Act is Automatic Time Table Advertising Co. V. Automatic Time Table Co., 208 Mass. 252, 94 N. E. 462. Where goods are shipped to the buyer and thereby the title passes to him, but he has the right of inspection to see whether they corre- spond with a sample, and the goods are destroyed before inspection can be made, the loss falls on the buyer. Wadhams v. Balfour, 32 Ore. 313, 51 Pac. 542. * Risk Where Title Is Reserved as Security. The following quo- tations from the work of the draftsman of the act show its theory upon the matter covered by sub-section (a) : "Risk of loss should properly fall upon the party who has the beneficial incidents of title rather than upon the party who has the legal title alone." (Williston on Sales, p. 525). "That the risk should be thrown upon the buyer if the seller retains title merely to enforce performance by the buyer of his obli- gations under the contract, as enacted in the Sales Act, is a conse- quence of the theory that such a bargain is, in effect, though not in form, a sale to the buyer and a mortgage back by him of the prop- erty to secure the price." (Williston on Sales, p. 458). New York Cases. The New York case most squarely presenting the question is Na- tional Cash Register Co. v. South Bay Club House Assoc, 64 Misc. 125, 118 N. Y. S. 1044. In that case a cash register had been de- livered under a conditional contract of sale and the buyer had given a note for the price. The register was destroyed by accident before payment of the note and an action was brought to collect the note. The court allowed the plaintiff to recover, holding that the consider- ation for the note was the delivery of the register to the buyer, and that the plaintiff had done all it was obliged to do under the contract. The court says (p. 127) : "The plaintiff had nothing further to do. The title was retained by it merely as security for the unpaid pur- chase price." The court refers to apparently contrary dicta in Ballard V. Burgett, 40 N. Y. 314, and Herring v. Hoppock, 15 N. Y. 409, and distinguishes those cases. It suggests Comer v. Cunningham, 77 N. Y. 391, 33 Am. Rep. 626, as a supporting authority. In Higgins v. Murray, 73 N. Y. 252, the contract was one of work and labor, namely, the construction of a tent, which was destroyed while in transit. The sale was a C. O. D. sale. The court held that the loss fell upon the buyer. Apparently the buyer was liable for the price, irrespective of the state of the title of the goods because the contract was considered one for work and labor. In Morey v. Med- bury, 10 Hun (N. Y.) 540, it was held that where a seller has delivered Digitized by Microsoft® 122 BOGERT'S NEW YORK SALES ACT. § 103. Risk of Loss. goods to a station agent to be delivered by him to the buyer upon payment of the price, and has thus reserved his lien, the property nevertheless passed to the buyer, and, when the goods are stolen, the loss falls on the buyer. See also Humeston v. Cherry, 23 Hun (N. Y.) 141. But see Wolf v. Di Lorenzo, 21 Misc. 521, 47 N. Y. S. 719; Ed- ward Thompson Co. v. Vacheron, 69 Misc. 83, 125 N. Y. S. 939. Other American Authorities. The authorities have been conflicting in America, the following cases holding that the buyer has the risk of loss in a conditional sale : Chicago R. Equipment Co. v. Merchants' Nat. Bank, 136 U. S. 268, 283, 10 S. Ct. 999, 34 U. S. (L. ed.) 349; American Soda Fountain Co. V. Vaughn, 69 N. J. L. 582, 55 Atl. 54; Tufts v. Griffin, 107 N. C. 47, 12 S. E. 68, 10 L.R.A. 526, 22 Am. St. Rep. 863, and other authorities being contra: Swallow v. Emery, 111 Mass. 355; Sloan v. McCarty, 134 Mass. 245. Where the property is retained for security by means of a bill of lading, it has been stated in dictum that the risk of loss is on the buy- er (Farmers' etc., Nat. Bank v. Logan, 74 N. Y. 568, 581), a view in accord with that of the Sales Act. 3 Delivery Delayed Through Fault. Regarding sub-section (b) the draftsman of the act says : "It seems probable from the authori- ties cited, that the provision of the English Sale of Goods Act, copied in the American Sales Act, goes farther in throwing the risk upon the party in default than the common law has hitherto gone. The origi- nal draft of the English act provided that the risk should be upon the party in fault 'as regards any loss which would not have occurred but for such fault.' The expression 'might not have occurred' was sub- stituted at the instance of Lord Watson. The effect of this substitu- tion seems to be to shift the burden to the wrongdoer to show that his default was not a cause of the loss. It seems reasonable, in case of doubt as to the proximate cause of the loss by the delay, that the party in default who is confessedly a wrongdoer should suffer rather than the innocent party." (Williston on Sales, pp. 466-467). New York View. The question arose in McConihe v. New York, etc., R. Co., 20 N. Y. 495, 75 Am. Dec. 420, in which case the seller of certain cars was pre- vented from performing his contract to deliver them by reason of de- lay on the part of the buyer in furnishing certain iron boxes for the cars. The cars were destroyed by accident while incomplete. The court refused to allow the maker of the cars to recover the value of the materials destroyed because the loss of them "was not the necessary consequence of the failure to deliver the boxes." The decision appar- Digitized by Microsoft® TRANSFER OF PROPERTY. 123 § 103. Risk of Loss. ently amounts to a holding that the party in default is not liable for the loss unless his default necessarily and without doubt caused the loss of the goods. The Sales Act, on the other hand, would seem to put upon the party in default the burden of showing that under no circum- stances could his default have caused the loss. The McConihe case seems to be affected by the act. Rule in Other Jurisdictions. A similar case is that of Grant v. U. S., 7 Wall. 331, 19 U. S. (L. ed.) 194, in which case also the party in default was freed from bearing the loss because his default was not the proximate cause of the loss. In the leading case of Martineau v. Kitching, L. R. 7 Q. B. (Eng.) 436, 456, the court expressed itself through Blackburn, J,, as follows: "That is perfectly good sense and justice, though it is not necessary to the decision of the present case, that, when the weighing is delayed in consequence of the interference of the buyer, so that the property did not pass, even if there were no express stipulation about risk, yet because the noncompletion of the bargain and sale, which would ab- solutely transfer the property, was owing to the delay of the pur- chaser, the purchaser should bear the risk just as much as if the prop- erty had passed." Digitized by Microsoft® CHAPTER VIII. TRANSFER OF PROPERTY AS BETWEEN BUYER AND THIRD PERSON. § 104. SALE BY PERSON NOT THE OWNER. 1. Subject to the provisions of this article, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the sell- er's authority to sell.' 2. Nothing in this act, however, shall affect — (a) The provisions of any factors' acts, recording acts, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof.^ (b) The validity of any contract to sell or sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction. Effect of Section. The section is declaratory of the pre- existing law. English Act. Section 21 of the Sale of Goods Act is substantially the same as this section of the American act. In Farquharson v. King, [1902] A. C. 325, 86 L. T. N. S. 810, it was held that a servant of the owner of timber, stored at docks, who had authority to sign orders for the 124 Digitized by Microsoft® TRANSFER OF PROPERTY. 125 § 104. Sale by Person Not the Owner. delivery of the timber, could not nevertheless convey good title to timber which he fraudulently transferred to a fic- titious buyer and then, acting for that buyer, delivered to a bona fide purchaser for value without notice. He was a mere thief and could convey no title. 1 General Rule that None but Owner Can Sell. "Property in things movable can only pass from the owner by his own act and con- sent, except in those cases only where such owner has, by his own direct, voluntary act, conferred upon the person from whom the bona fide vendee derives title, the apparent right of property as owner, or of disposal as agent." Brower v. Peabody, 13 N. Y. 121, 126. "A pur- chaser of chattels takes them, as a general rule, subject to whatever may turn out to be infirmities in the title." Farmers', etc., Nat. Bank V. Logan, 74 N. Y. 568, 575. See Saltus v. Everett, 20 Wend. (N. Y.) 267, 275, 32 Am. Dec. 541. Effect of Possession. It is conceded that ''possession alone does not give the power to pass a valid title." Spraights v. Hawley, 39 N. Y. 441, 100 Am. Dec. 452; Davis v. Bechstein, 69 N. Y. 440, 25 Am. Rep. 218; Farmers', etc., Nat. Bank v. Logan, 74 N. Y. 568, 586; Soltau v. Gerdau, 119 N. Y. 380, 23 N. E. 864, 16 Am. St. Rep. 843. Market Overt. The custom of "market overt," in which any sale gave good title, has never existed in this state. Mowrey v. Walsh, 8 Cow. (N. Y.) 238; Farmers', etc., Nat. Bank v. Logan, 74 N. Y. 568. Power of Shipmaster. "The law of shipping is well known to the commercial world, to de- clare that the master has no authority to sell the cargo, or any part of it, unless under circumstances of pressing necessity abroad; and of that absolute necessity, the burden of proof rests on the purchaser, and the presumption is against it." Saltus v. Everett, 20 Wend. (N. Y.) 267, 284, 285, 32 Am. Dec. 541. Thief. A thief can convey no title to ordinary chattels, even if the taker from him be a bona fide purchaser. Bassett v. Spoflford, 45 N. Y. 387, 6 Am. Rep. 101 ; Knox v. Eden Musee Americain Co., 148 N. Y. 441. 42 N. E. 988, 31 L.R.A. 779, 51 Am. St. Rep. 700. Mistake. A person taking goods by mistake can convey no title to a bona fide purchaser. Williams v. Merle, 11 Wend. (N. Y.) 80, 25 Am. Dec. 604. Digitized by Microsoft® 126 BOGERT'S NEW YORK SALES ACT. § 104. Sale by Person Not the Owner. 2 Estoppel. "Two things must concur to create an estoppel by which an owner may be deprived of his property, by the act of a third person without his assent, under the rule now considered. 1. The owner must clothe the person assuming to dispose of the property with the apparent title to, or authority to dispose of it; and, 2. The person alleging the estoppel must have acted and parted with value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real. In this respect it does not differ from other estoppels in pais." Barnard V. Campbell, 55 N. Y. 456, 463, 14 Am. Rep. 289. Illustrative Cases. In the following cases it was held that the owner of the goods was not estopped to set up his title: Sage v. Shepard, etc.. Lumber Co., 4 App. Div. 291, 39 N. Y. S. 449, affirmed 158 N. Y. 672, 52 N. E. 1126 (purchase from known agent) ; Smith v. Clews, 114 N. Y. 190, 21 N. E. 160, 4 L.R.A. 392, 11 Am. St. Rep. 627 (possession for exhibition purposes only) ; Hentz v. Miller, 94 N. Y. 64 (false representations) ; Barnard v. Campbell, 55 N. Y. 456, 14 Am. Rep. 289 (no reliance on possession) ; Collins v. Ralli, 20 Hun 246, affirmed 85 N. Y. 637 (prop- erty obtained by larceny). In the following cases the owner was estopped from settmg up his ownership as against a bona fide holder: Parker v. Baxter, 86 N. Y. 586 (ship's receipts placed in another's hands) ; Dows v. Kidder, 84 N. Y. 121 (owner entrusted another with documents of title) ; Voor- his V. Olmstead, 66 N. Y. 113 (possession of warehouse receipt) ; Moore v. Metropolitan Nat. Bank, 55 N. Y. 41, 14 Am. Rep. 173 (owner assigned certificate of indebtedness) ; McNeil v. New Y'ork Tenth Nat. Bank, 46 N. Y, 325, 7 Am. Rep. 341 (blank assignment of stock) ; Rawls V. Deshler, 3 Keyes (N. Y.) 572 (possession of bill of lading) ; Western Transp. Co. v. Marshall, 4 Abb. App. Dec. (N. Y.) 575 (bill of lading placed in another's power). 3 Statutory Regulation. Section 43 of the Personal Property Law (see appendix) contains a portion of the New York Factor's Act and the remainder is found in section 182 of the Lien Law. The latter statute is quoted here for the sake of completeness : "Section 182. Fac- tor's lien on merchandise. A person, in whose name any merchandise shall be shipped, is deemed the true owner thereof so far as to entitle the consignee of such merchandise to a lien thereon : 1. For any money advanced or negotiable security given by such consignee, to or for the use of the person in whose name such shipment is made; and 2. For any money or negotiable security received by the person in whose Digitized by Microsoft® TRANSFER OF PROPERTY. 127 § 104. Sale by Person Not the Owner. name such shipment is made, to or for the use of such consignee. Such lien does not exist where the consignee has notice, by the bill of lading or otherwise, when or before money is advanced or security is given by him, or when or before such money or security is received by the person in whose name the shipment is made, that such person is not the actual and bona fide owner thereof." Cases Under Factor's Act. It is beyond the scope of this book to discuss the construction of the Factor's Act, but the following cases may be useful as showing to what extent that statute has affected the capacity of one not the owner to give good title to chattels: Cartwright v. Wilmerding, 24 N. Y. 521 ; Toledo First Nat. Bank v. Shaw, 61 N. Y. 283 ; Kinsey v. Leggett, 71 N. Y. 387; Soltau v. Gerdau, 119 N. Y. 380, 23 N. E. 864, 16 Am. St. Rep. 843; Schwab v. Oatman, 56 Misc. 393, 106 N. Y. S. 741; Stevens v. Wilson, 3 Den. (N. Y.) 472. Conditional Sales. The words "recording acts'' in section 104 refer to the statutes re- lating to conditional sales. The statute requiring conditional sale con- tracts to be filed in order to be valid as against subsequent purchasers is found in section 62 of the Personal Property Law (see appendix). Obviously if the contract be not properly filed the vendee may give title to a bona fide purchaser, although as between himself and his seller he has no title. Thus an exception arises to the general doctrine of section 104. The cases are numerous to the effect that a vendee under a con- ditional sale contract can give no title to a bona fide purchaser for value until he has paid for the goods. Ballard v. Burgett, 40 N. Y. 314; Austin v. Dye, 46 N. Y. 500; Campbell Printing Press, etc., Co. V. Walker, 114 N. Y. 7, 20 N. E. 625; Schryer v. Fenton, 15 App. Div. 158, 44 N. Y. S. 203 ; Nelson v. Gibson, 143 App. Div. 894, 129 N. Y. S. 702; Walker v. Mitchell, 25 Hun (N. Y.) 527; Puffer v. Reeve, 35 Hun (N. Y.) 480. A few cases have held that, where delivery and payment were to be concurrent, delivery without the exaction of payment enabled the buyer to convey good title to a bona fide purchaser, apparently on the theory of waiver. Smith v. Lynes, 5 N. Y. 41 ; Wait v. Green, 36 N. Y. 556; Comer v. Cunningham, 77 N. Y. 391, 33 Am. Rep. 626. If the conditional vendee is expressly given a power to resell, ob- viously any sale made by him will be binding on the conditional vendor. Fitzgerald v. Fuller, 19 Hun (N. Y.) 180. Digitized by Microsoft® 128 BOGERT'S NEW YORK SALES ACT. § 105. Sale by One Having Voidable Title. § 105. SALE BY ONE HAVING A VOIDABLE TITLE. Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller's defect of title.' Effect of Section. Section 105 expresses the common law, except that it affects sales by infants and lunatics. Formerly persons suffering from such incapacity have been allowed to disaffirm their sales and retake the goods sold, even though the goods had passed into the hands of an innocent purchaser for value. The Sales Act makes the title of an innocent purchaser for value from an infant's or lunatic's vendee good. See note below. English Act. Section 23 of the Sale of Goods Act has been very closely followed in the drafting of the section. The following cases have been decided under the act: A buyer who procures the passing of the title to him through fraud has a voidable title and until it is avoided may trans- fer a good title to a bona fide purchaser for value without notice. Truman v. Attenborough, 103 L. T. N. S. 218. Where the owner of an article is induced to deliver it to another on sale or return, on the representation that the buyer has a customer to whom he wishes to sell it, the buyer obtains possession by fraud and does not commit lar- ceny by trick, and hence, can, before the sale to him is avoided, give good title to a bona fide purchaser. White- horn v. Davison, [1911] 1 K. B. 463. 1 EfEect of Sale by One Having Voidable Title. Fraiul. In Saltus Digitized by Microsoft® TRANSFER OF PROPERTY. 129 § 105. Sale by One Having Voidable Title. V. Everett, 20 Wend. (N. Y.) 267, 32 Am. Dec. 530, the court defines two classes of cases in which title may pass without the owner's con- sent and states (p. 279) : "1. The first is, when the owner, with the intention of sale, has in any way parted with the actual property of his goods, with his own consent, though under such circumstances of fraud or error, as would make that consent revocable, rescind the sale, and authorize the recovery of the goods as against such vendee. But if the property passes into the hands of honest purchasers, the first owner must bear the loss." Illustrative Cases. In the following cases the sale was voidable for fraud and the doctrine of the section was applied: Paddon v. Taylor, 44 N. Y. 371; Cooper Mfg. Co. v. De Forest, 5 App. Div. 43, 38 N. Y. S. 1038; Benedict v. Williams, 48 Hun 123, 15 N. Y. St. Rep. 677; Levy v. Carr, 85 Hun 289, 32 N. Y. S. 1023, affirmed 158 N. Y. 675, 52 N. E. 1124; Ash v. Putnam, 1 Hill (N. Y.) 302; Mowrey v. Walsh, 8 Cow. (N. Y.) 238; Craig v. Marsh, 2 Daly (N. Y.) 61; Lacker v. Rhoades, 45 Barb. (N. Y.) 499; Pearse v. Pettis, 47 Barb. (N. Y.) 276. Larceny by Trick. A person representing himself to be the manager of a corporation and buying property for it, cannot give good title to a bona fide pur- chaser for value without notice, when there was no corporation and the representation was fraudulent. Wyckoff v. Vicary, 75 Hun 409, 27 N. Y. S. 103. In McGoldrick v. Willits, 52 N. Y. 612, one Roberts contracted to sell to the defendant five barrels of whiskey and then got the plaintiff to ship five barrels to defendant, on the representa- tion that he was the agent of the defendant. The whiskey was shipped to the defendant and he paid Roberts therefor, although the name and business of the seller was marked upon the goods. It was held that the defendants acquired no title since the plaintiff had done no act to estop himself and Roberts had no voidable title to convey to the defendant. Proceeds of Subsales. Where a sale is induced by fraud the seller may reach the proceeds of subsales in the hands of the buyer's assignees for the benefit of creditors, when such proceeds can be identified. American Sugar Re- fining Co. V. Fancher, 145 N. Y. 552, 40 N. E. 206, 27 L.R.A. 757. Infants and Lunatics. Although the cases on the subject are not numerous, the common law rule seems to be that an infant may avoid a contract of sale even against an innocent purchaser from his vendee, and recover the goods from such innocent purchaser. Miles v. Lingerman, 24 Ind. 385 ; Myers v. Sanders, 7 Dana (Ky.) 506, 521 ; Hill v. Anderson, 5 Smed. Bogert's Sales — 9. Digitized by Microsoft® 130 BOGERT'S NEW YORK SALES ACT. § 105. Sale by One Having Voidable Title. & M. (Miss.) 216; Downing v. Stone, 47 Mo. App. 144; Mustard v Wohlford, IS Gratt. (Va.) 329, 76 Am. Dec. 209. The Sales Act makes a sale by a vendee of an infant to an innocent purchaser convey good title to such purchaser. The draftsman of the act says of this change (Williston on Sales, p. 563) : "This has been the privilege of the infant, and in j uris- dictions where the contract of a lunatic is regarded as analogous to that of an infant, the same principle has been applied. In regard to such cases this section of the Sales Act works a change in the law. It is desirable that at some tirpie the title to goods bought from an infant or lunatic should be perfected, and the advantages to trade and the stability of titles justifies the diminution in the privilege of infants and lunatics." Who Is a Buyer "For Value"? One who has paid part of the purchase price prior to receiving notice of a defect in his vendor's title is pro tanto a buyer for value. Sargent v. Eureka Spund Apparatus Co., 46 Hun 19, 11 N. Y. St. Rep. 68. A donee is obviously not a taker for value. Baker V. Lever, 67 N. Y. 304, 23 Am. Rep. 117. But one surrendering a past due promissory note in return for goods is a taker for value. Paddon v. Taylor, 44 N. Y. 371 ; Powers v. Freeman, 2 Lans. (N. Y.) 127. Neither an execution creditor buying upon a sale under his execution nor a judgment creditor levying upon goods is a buyer for value. Devoe v. Brandt, 53 N. Y. 462; Naugatuck Cutlery Co. V. Babcock, 22 Hun (N. Y.) 481. Antecedent Debt as Value. The Uniform Sales Act defines "value" as follows : " 'Value' is any consideration sufficient to support = simple contract. An antecedent or pre-existing claim, whether for money or not, constitutes value where goods or documents of title are taken either in satisfaction thereof or as security therefor." The New York legislature omitted this defi- nition from the Sales Act when they adopted it (see sec. 156, post). Consequently the rule still prevails in this state that the taker of goods in payment of or as security for an antecedent debt is not a buyer for value. Weaver v. Barden, 49 N. Y. 286; Stevens v. Bren- nan, 79 N. Y. 254, 258; Van Slyck v. Newton, 10 Hun (N. Y.) 554; Rochester Distilling Co. v. Devendorf, 72 Hun 428, 25 N. Y. S. 200; Root V. French, 13 Wend. (N. Y.) 570, 28 Am. Dec. 482; Woodburn v. Chamberlin, 17 Barb. (N. Y.) 446; Victoria Paper Mills Co. v. New York Co., 27 Misc. 179, 57 N. Y. S. 397; Beavers v. Lane, 6 Duer (N. Y.) 232; Partridge v. Rubin, 15 Daly 344, 6 N. Y. S. 657. Digitized by Microsoft® TRANSFER" OF PROPERTY. 131 § 105. Sale by One Having Voidable Title. Notice. Purchasers from a fraudulent vendee who have notice of the fraud obtain no title against the true owners. Gowing v. Warner, 29 Misc. 593, 61 N. Y. S. 500, affirmed 30 Misc. 593, 62 N. Y. S. 797. The bur- den is on the purchaser from the fraudulent buyer to prove that he is a bona fide purchaser without notice. Devoe v. Brandt, S3 N. Y. 462. As to what facts show notice or reason to put the 'buyer on inquiry, see Anderson v. Nicholas, 28 N. Y. 600; Dudley v. Gould, 6 Hun (N. Y.) 97; Danforth v. Dart, 4 Duer (N. Y.) 101; Mitchell v. Worden, 20 Barb. (N. Y.) 253. The rule relating to notice in case of sales of real property is different. Cambridge Valley Bank v. De- lano, 48 N. Y. 326. "A purchaser with notice will secure a good title by obtaining it from a party who had no notice, and may hold the property bought against the equities of a party otherwise entitled to be regarded as the true owner." Williamson v. Mason, 12 Hun (N. Y.) 97, 10& Digitized by Microsoft® 132 BOGERT'S NEW YORK SALES ACT. § 106. Sale by Seller in Possession. § 106. SALE BY SELLER IN POSSESSION OF GOODS ALREADY SOLD. Where a person having sold goods continues in possession of the goods, or of negotiable documents of title to the goods, the delivery or transfer by that person, or by an agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person re- ceiving and paying value for the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same.^ Effect of Section. The section is a partial substitute for the former section 36 of the Personal Property Law, re- pealed by the Sales Act. It changes the law by making the presumption in favor of the second buyer conclusive, instead of merely presumptive. See note below. "This section fol- lows section 25 (1) of the English Act. It is compara- tively new to the English law, being first enacted in the Fac- tor's Act of 1889. But, so far as purchasers are concerned, it states in effect the principle commonly laid down in this country, that delivery is not necessary between the parties, but is as against third persons. The rights of creditors are dealt with in the next section. Section 25 (2) of the English Act provides that a buyer in possession with- out title shall have power to transfer title. This is con- trary to American law and has been omitted. Mechem, § 599." (Notes of Commissioners on Uniform State Laws, 30 Am. Bar Assoc. Rep. 361, 36?^ Digitized by Microsoft® TRANSFER OF PROPERTY. 133 § 106. Sale by Seller in Possession. English Act. See next preceding note. Apparently the only case decided under the Sale of Goods Act in England with respect to this section is Nicholson v. Harper, [1895] 2 Ch. 415, 73 L. T. N. S. 19. In that case the owner of wine stored in a cellar, sold it to the plaintifif and agreed to keep it for him in the cellar for a year. The seller then pledged it for advances to the keeper of the warehouse where it was stored. The position of the goods was not changed nor was any document of title given to the ware- housekeeper. Held, that under section 25 of the Sale of Goods Act (sec. 106, Pers. Prop. Law) the warehouseman had not acquired a title superior to the original buyer. "What is necessary to establish title is that a person, in the position which Goldsmith [the seller] is in here, should make an actual delivery of the goods or a transfer of the documents of title to some person without notice. Either a delivery or a transfer is necessary. The defendants [warehousemen] were in possession long before sale, and continued in possession. The words of the section mean a delivery of goods, or where the goods are not delivered a handing over of the documents of title, which are certain well-known mercantile documents." 73 L. T. N. S. 19, 20). 1 Sale by Seller in Possession of Goods Already Sold. "As be- tween buyer and seller, the title passes without delivery, if such was their intention." Burt v. Dutcher, 34 N. Y. 493, 496; Sturtevant v. Ballard, 9 Johns. (N. Y.) 337, 6 Am. Dec. 281. Delivery Necessary as Against Subsequent Purchaser. The question is, Is delivery necessary as against subsequent pur- chasers of the goods? The leading case upholding the doctrine of the section is Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119: In that action there had been a sale of goods at sea, and upon their arrival they were seized by a creditor of the seller under an attachment. The holding was that the attaching creditor obtained a right to the goods because of the lack of delivery to the first buyer. The court said Digitized by Microsoft® 134 BOGERT'S NEW YORK SALES ACT. § 106. Sale by Seller in Possession. (p. 113) : "Delivery of possession is necessary in a conveyance of personal chattels as against every one but the vendor. When the same goods are sold to two different persons, by conveyances equally valid, he who first lawfully acquires the possession will hold them against the other." This doctrine has been sustained in Burnell v. Robertson, 10 111. 282; Huschle v. Morris, 131 111. 587, 23 N. E. 643; Reed v. Reed, 70 Me. S04; Dempsey v. Gardner, 127 Mass. 381, 34 Am. Rep. 389; Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433; Crawford v. Forristall, 58 N. H. 114. The doctrine of the section is supported by the following authori- ties: Benjamin on Sales (7th ed.), p. 731; Mechem on Sales, sec. 979 et seq.; Tiffany on Sales, p. 204 et seq.; 35 Cyc. 304; 24 Am. & Eng. Enc. of Law (2d ed.) 1164. What Is Delivery? As to what constitutes delivery under the doctrine of Lanfear v. Sumner, supra, see the following cases : Hardy v. Potter, 10 Gray (Mass.) 89; Shumway v. Rutter, 8 Pick. (Mass.) 443, 19 Am. Dec. 340; Ingalls v. Herrick, 108 Mass. 351, 11 Am. Rep. 360. Former Statutory Rule in New York. The question involved in this section was governed by statute in New York prior to the adoption of the Sales Act. Section 36 of the Personal Property Law provided as follows : "§ 36. Sales and charges other than chattel mortgages without de- livery and change of possession. Every sale of goods and chattels in the possession or under the control of the vendor, and every as- signment of goods and chattels by way of security or on any condi- tion, but not constituting a mortgage nor intended to operate as a mortgage, unless accompanied by an immediate delivery followed by actual and continued change of possession, is presumed to be fraudu- lent and void as against all persons who are creditors of the vendor or person making the sale or assignment, including all persons who are his creditors at any time while such goods or chattels remain in his possession or under his control or subsequent purchasers of such goods and chattels in good faith; and is conclusive evidence of such fraud, unless it appear, on the part of the person claiming, under the sale or assignment, that it was made in good faith, and without in- tent to defraud such creditors or purchasers." "But this section does not apply to a contract of bottomry or respondentia, or to an assignment of a vessel or goods at sea or in , H foreign port." That section was repealed by the statute which enacted the Sales Act (Laws 1911, ch. 571, § 2). Thus instead &f a prima facie pre- Digitized by Microsoft® TRANSFER OF PROPERTY. 135 § 106. Sale by Seller in Possession. sumption that the first sale without delivery and change of possession is void as against a second buyer, the Sales Act substitutes a con- clusive presumption. The true owner is conclusively estopped to deny that the seller in possession was not his agent to sell to the second purchaser. Sections 106 and 107 of the present Personal Property Law take the place of the former section 36, and a further discussion of the effect of the repeal of that section is given under section 107, post. For cases construing the old section 36, in so far as it concerned subsequent purchasers in good faith, see Tallman v. Kearney, 3 Thomp. & C. (N. Y.) 412; Brown v. Wilmerding, S Duer (N. Y.) 220; dictum, Clute V. Fitch, 25 Barb. (N. Y.) 428. Digitized by Microsoft® 136 BOGERT'S NEW YORK SALES ACT. § 107. Creditor's Rights against Sold Goods. § 107. CREDITORS' RIGHTS AGAINST SOLD GOODS IN SELLER'S POSSESSION. Where a per- son having sold goods continues in possession of the goods, or of negotiable documents of title to the goods and such retention of possession is fraudulent in fact or is deemed fraudulent under any rule of law, a creditor or creditors of the seller may treat the sale as void.^ Effect of Section. This section and section 106 to- gether take the place of the former section 36 of the Per- sonal Property Law, which was repealed by the Sales Act (Laws of 1911, ch. 571, § 2). Section 36 made sales without immediate delivery and change of possession presumptively fraudulent and void as against creditors of the seller, that is, it created a rebuttable presumption of law. The present section 107 makes such sales fraudulent only when so in fact, or under any rule of law. It is sub- mitted that the only statutory "rule of law" upon the sub- ject in New York was abolished by the repeal of section 36, so that now the situation is the same as before the en- actment of the Revised Statutes in 1830 when the rule of section 36 was first made statutory. The cases decided before 1830 show that the statute of which section 36 was the successor was merely declaratory of the common law, and that at common law the sale was prima facie fraudu- lent. Apparently, therefore, the law has not been changed, so far as creditors are concerned, by the repeal of section 36 and the substitution of section 107. See notes below. "The law in this country as to the effect of retention of possession on the rights of creditors is in such conflict and Digitized by Microsoft® TRANSFER OF PROPERTY. 137 § 107. Creditor's Rights against Sold Goods. the different rules are locally so firmly fixed that it seemed unwise to try to provide a uniform rule. All states, how- ever, agree that if the retention is fraudulent in fact, the sale is void as to creditors. The draft, therefore, so pro- vides, and as to other cases — cases of constructive fraud — adopts the locally prevailing rule." (Notes of Commission- ers, American Uniform Commercial Acts, p. 88). English Act. The Sale of Goods Act has no correspond- ing section, but the doctrine stated here is recognized in the English law and had its origin there in the statute of 13 Eliz. c. 5. 1 Creditor's Rights against Sold Goods in Seller's Possession. As suggested above, it is believed that, by virtue of the repeal of former section 36 of the Personal Property Law (for the text of which see note to section 106, ante) it is now useful to look to the common law cases, decided before 1830, to ascertain the "rule of law" concerning the presumption of fraud under the situation here presented. Early Cases. The earliest authoritative case upon the subject is Sturtevant v. Ballard, 9 Johns. (N. Y.) 337, 6 Am. Dec. 281 (1812), in which Kent, C. J., expressed the rule as follows (p. 344) : "We may, therefore, safely conclude that a voluntary sale of chattels, with an agreement, either in or out of the deed, that the vendor may keep possession, is, except in special cases, and for special reasons, to be shown to and approved of by the court, fraudulent and void as against creditors." This apparently made the presumption of fraud conclusive. But in Bissell V. Hopkins, 3 Cow. (N. Y.) 166, 15 Am. Dec. 259 (1824), the court said (p. 188) that "possession continuing in the vendor is only prima facie evidence of fraud, and may be explained. The question in every case is, whether the act done is a bona fide transaction, or whether it is a trick and contrivance to defeat creditors ;" * * * . And in Hall v. Tuttle, 8 Wend. (N. Y.) 375 (1832), the court, in considering the situation existing before the enactment of the statu- tory rule in 1830, said (pp. 379-380) : "If I am right in supposing that the rule laid down in Sturtevant v. Ballard amounts to no more than that possession remaining in the vendor is prima facie evidence of fraud, then there is no discrepancy between the cases in this court; Digitized by Microsoft® 138 BOGERT'S NEW YORK SALES ACT. § 107. Creditor's Rights against Sold Goods. they all maintain the same doctrine, and such substantially was the law stated to the jury in this case; and so have the legislature pro- nounced the law to be, from and after Jan. 1, 1830 [statute quoted]. This legislative enactment contains what I understand the law to have been ever since the 13 Eliz., ch. S, and what the common law was before that statute was enacted." For other cases discussing sales made prior to the passage of the statute, see Barrow v. Paxton, 5 Johns. (N. Y.) 2S8, 4 Am. Dec. 354 (1810) ; Butts v. Swartwood, 2 Cow. (N. Y.) 431 (1823); Jennings v. Carter, 2 Wend. (N. Y.) 446, 20 Am. Dec. 635 (1829); Archer v. Hubbell, 4 Wend. (N. Y.) 514 (1830); Collins v. Brush, 9 Wend. (N. Y.) 198 (1832). What Is a Change of Possession f After the passage of the statute which went into effect in 1830, the rule was held to be that implied from a plain reading of the stat- ute, namely, "that the sale must be followed by a continued change of possession, or it shall be presumed to be fraudulent." Tilson v. Terwilliger, 56 N. Y. 273, 276 ; Mitchell v. West, 55 N. Y. 107 ; Blaut V. Gabler, 77 N. Y. 461 ; Siedenbach v. Riley, 111 N. Y. 560, 19 N. E. 275. Where the seller is out of possession for two or three weeks and then is employed as manager and comes into possession again, it is a question of fact for the jury to determine whether the sale was fraudulent. Menken v. Baker, 40 App. Div. 609, 57 N. Y. S. 541, affirmed 166 N. Y. 628, 60 N. E. 1116. Illustrative Cases. In the following cases the sale was held to be fraudulent: Tilson V. Terwilliger, 56 N. Y. 273 (delivery to buyer followed by redelivery to seller) ; Gardenier v. Tubbs, 21 Wend. (N. Y.) 169 (removal by buyer at considerable interval after sale) ; Butler v. Stoddard, 7 Paige (N. Y.) 163 (constructive change by seller becoming bailee for buyer). In the following cases the sale was held to have been made in good faith and to be valid : Prentiss Tool Co. v. Schirmer, 136 N. Y. 305, 32 N. E. 849, 32 Am. St. Rep. 737 (goods left in seller's possession to do work upon them) ; Mitchell v. West, 55 N. Y. 107 ; Fisher v. Stout, 74 App. Div. 97, 77 N. Y. S. 945 (seller left in control as agent) ; Knight v. Forward, 63 Barb. (N. Y.) 311 (brief use of prop- erty by seller) ; Spotten v. Keeler, 22 Abb. N. Cas. (N. Y.) 105, 12 N. Y. St. Rep. 385 (concurrent possession by buyer and seller). Bulky Goods. "Undoubtedly the bulky and cumbersome character of articles sold affects the nature of acts of delivery and taking possession. But some act, definite and distinct, is always required. Actual removal from Digitized by Microsoft® TRANSFER OF PROPERTY. 139 § 107. Creditor's Rights against Sold Goods. the mill might not have been necessary, but something tantamount to an actual delivery, some plain surrender of possession on the one hand and assumption of it on the other, is necessary, and the finding of the Special Term negatives the existence of any such fact." Stim- son V. Wrigley, 86 N. Y. 332, 337, 338. In connection with section 107 see sections 35 and 37 of the Personal Property Law (appendix), and section 230 of the Lien Law, as amend- ed by chapter 326 of the Laws of 1911. Digitized by Microsoft® CHAPTER IX. DOCUMENTS OF TITLE. § 108. DEFINITION OF NEGOTIABLE DOCU- MENTS OF TITLE. A document of title in which it is stated that the goods referred to therein will be de- livered to the bearer, or to the order of any person named in such document is a negotiable document of title.^ Effect of Section. This section cannot be said to have any effect on the common law of New York because it defines a term unknown to that law. The phrase "docu- ment of title" is taken from the English law. The division of the Sales Act of which this section is the initial section, however, alters very materially the common law theory regarding bills of lading, warehouse receipts and other in- struments included within the meaning of the term "docu- ments of title." This change has come about through the very wide degree of negotiability given to such documents by the Sales Act and kindred legislation. See notes to sec- tions 108-121 inclusive. English Act. The Sale of Goods Act has no corres- ponding section. The subject of "documents of title" is not treated in that act, though the term is mentioned. 1 Definition of Negotiable Documents of Title. The phrase "doc- ument of title" is taken from the English Sale of Goods Act, in which 140 Digitized by Microsoft® DOCUMENTS OF TITLE. 141 § 108. Definition of Negotiable Documents of Title it is referred to, but not treated as in the Sales Act, sections 108-121. The phrase was also used in the English Factor's Act of 1889. It seems to be comparatively unknown to the common law of New York. For a definition of "document of title" under the Sales Act, see section 156, post. The requirement that the document be made to order or bearer in order to be negotiable is similar to the standard of negotiabihty set for negotiable instruments (Neg. Inst. Law, sec. 20, subd. 4), for warehouse receipts (Gen. Bus. Law, sec. 92), and for bills of lading (Pers. Prop. Law, sec. 191), and is believed to coincide with the common law definition of negotiability. That term is taken to mean the quality of assignability free from outstanding equities. Purpose of Chapter. The Sales Act has previously dealt with the effect of various methods of treating bills of lading, in connection with the passage of the property to the goods from seller to buyer (see sec. 101, ante). It remains in sections 108-121 to consider the effect of the delivery, transfer and indorsement of bills of lading, warehouse receipts and other documents of title where the rights of others than the original buyer and seller are concerned. Documents of title may be considered as (1) receipts for goods delivered, (2) contracts for the redelivery or carriage of those goods, (3) representatives of the goods for the purpose of the transfer of title. It is the latter aspect in which they are discussed in sections 108 to 121 of the Sales Act. Widening of Negotiability Through Uniform Commercial Acts. Sections 108 to 121 are a part of a general scheme adopted by the Commissioners on Uniform State Laws to widen the negotiability of commercial documents. The same theory is followed out in the Uni- form Warehouse Receipts Law which is found in sections 90 to 143 of the General Business Law (L. 1907, ch. 732), and in the Uniform Bills of Lading Act which has been incorporated into the Personal Property Law as sections 187 to 241 (L. 1911, ch. 248; see appendix). Since the phrase "documents of title" includes both warehouse re- ceipts and bills of lading, the provisions of the Sales Act somewhat overlap those of the Warehouse Receipts Law and Bills of Lading Act. The effect of these three commercial acts upon documents of title is illustrated by a statement of the draftsman of the Sales Act: "The theory upon which property may be transferred by such docu- ments has not been altogether clear. The view which probably has the support of the greater number of decisions is that the docu- ment represents the goods, and the delivery of the document is, in Digitized by Microsoft® 142 BOGERT'S NEW YORK SALES ACT. § 108. Definition of Negotiable Documents of Title. effect, a delivery of the goods. What may be called the mercantile view, however, treats the document as analogous to a bill of ex- change, or promissory note, of which the bailee is the drawee or maker; and the rights of a holder of the document are, under this view, to be determined according to the terms of the instrument. In the decision of most cases it will make no difference which of these views is adopted; but as the ensuing discussion will show, there are cases where the distinction is vital. In the provisions of this act, the mercantile view is consistently carried out." (Williston on Sales, p. 694). This change from the common law theory of documents of title to the merchantile or negotiable instrument view is developed in sections 108 to 121 of the act. Common Law View of Documents. The early common law theory of a bill of lading as merely evi- dence of a contract is shown in the following quotations : "A bill of lading is the written evidence of a contract for the carriage and delivery of goods sent by water, for a certain freight." Covill V. Hill, 4 Den. 323, 330, reversed on another point, 1 N. Y. 522. "The bill of lading is the written evidence of the contract between the owner of the goods and the master or owner of the vessel for the carriage and delivery of the goods at a certain freight, when sent by sea or other public waters." Creery v. Holly, 14 Wend. (N. Y.) 26, 28. Digitized by Microsoft® DOCUMENTS OF TITLE. 143 § 109. Negotiation by Delivery. § 109. NEGOTIATION OF NEGOTIABLE DOCUMENTS BY DELIVERY. A negotiable docu- ment of title may be negotiated by delivery — (a) Where by the terms of the document the carrier, warehouseman or other bailee issuing the same under- takes to deliver the goods to the bearer, or (b) Where by the terms of the document the carrier, warehouseman or other bailee issuing the same under- takes to deliver the goods to the order of a specified per- son, and such person or a subsequent indorsee of the document has indorsed it in blank or to bearer. Where by the terms of a negotiable document of title the goods are deliverable to bearer or where a negoti- able document of title has been indorsed in blank or to bearer, any holder may indorse the same to himself or to any other specified person, and in such case the docu- ment shall thereafter be negotiated only by the indorse- ment of such indorsee.* Effect of Section. The common law did not recognize the negotiation which this section provides for. It made provision for passing the property in the goods represented by the document by means of delivery, but did not provide for negotiation in the sense that prior equities could be cut off. See note below. English Act. The Sale of Goods Act has no correspond- ing section. 1 Negotiation of Negotiable Documents by Delivery. "The de- livery of a bill of lading with intent to pass the title has that effect, although it be not payable to 'assigns,' or although if so payable, it be Digitized by Microsoft® 144 BOGERT'S NEW YORK SALES ACT. § 109. Negotiation by Delivery. not indorsed." City Bank v. Rome R. Co., 44 N. Y. 136, 139. In Rochester Bank v. Jones, 4 N. Y. 497, 507, 55 Am. Dec. 290, it was held that "the delivery of an unindorsed bill of lading is a good symbolical delivery, so as to vest the property in the vendee or pledgee.'' See also Merchants' Bank v. Union R., etc., Co., 69 N. Y. 373, 379; Becker v. Hallgarten, 86 N. Y. 167; Syracuse First Nat. Bank v. New York Cent., etc., R. Co., 85 Hun 160, 32 N. Y. S. 604; Matter of Non-Magnetic Watch Co., 89 Hun 196, 34 N. Y. S. 1017. It is apparent from these cases that the common law allowed the property in the goods represented by the document to be transferred by a mere delivery of the document, even though it was not in a form which the Sales Act calls "negotiable," that is, payable to order and indorsed, or payable to bearer. The Document a Symbol of the Goods. In Friedlander v. Texas, etc., R. Co., 130 U. S. 416, 424, 9 S. Ct. 570, 32 U. S. (L. ed.) 991, the Supreme Court, after referring to bills of exchange and promissory notes, says : "But bills of lading answer a different purpose and perform different functions. They are re- garded as so much cotton, grain, iron or other articles of merchandise, in that they are symbols of ownership of the goods they cover. And as no sale of goods lost or stolen, though to a bona fide purchaser for value, can divest the ownership of the person who lost them or from whom they were stolen, so the sale of the symbol or mere representative of the goods can have no such effect, although it some- times happens that the true owner, by negligence, has so put it into the power of another to occupy his position ostensibly, as to estop him from asserting his right as against a purchaser, who has been misled to his hurt by reason of such negligence.'! See also Shaw v. North Pennsylvania R. Co., 101 U. S. 557, 25 U. S. (L. ed.) 892. "A bill of lading to- bearer, or even in blank, delivered by the ship- per, for value, would be sufficient to enable the holder to receive and hold the property, against any person except a prior indorsee without notice." Allen v. Williams, 12 Pick. (Mass.) 297, 301. Where a bill of lading is endorsed in blank, title to the goods passes by delivery of the bill. Munroe v. Philadelphia Warehouse Co., 75 Fed. 545. Analogous Statutory Provisions. For provisions covering the same subject in relation to negotiable instruments, see Neg. Inst. Law, sees. 28, 60, 70; warehouse receipts, Gen. Bus. Law, sec. 122; bills of lading, Pers. Prop. Law, sec. 214 (see appendix). Digitized by Microsoft® DOCUMENTS OF TITLE. 145 § 110. Negotiation by Indorsement. § 110. NEGOTIATION OF NEGOTIABLE DOCUMENTS BY INDORSEMENT. A negotiable document of title may be negotiated by the indorsement of the person to whose order the goods are by the terms of the document deliverable. Such indorsement may be in blank, to bearer or to a specified person. If indorsed to a specified person, it may be again negotiated by the indorsement of such person in blank, to bearer or to an- other specified person. Subsequent negotiation may be made in like manner.^ Effect of Section. It is again to be noted that "negotia- tion" of bills of lading and other documents of title, in the proper sense of the word, did not exist at common law. This section, in that it is part of a scheme for building up this quaHty of negotiability, modifies the common law. English Act. The Sale of Goods Act contains no cor- responding section. 1 Negotiation of Negotiable Documents by Indorsement. At common law a document could be transferred so as to pass the trans- ferrer's title by mere delivery, even though the document were an order document and unindorsed. See cases cited under section 109, ante. A priori at common law if the document were indorsed by the person to whose order it ran, the title of the indorser would pass to the taker. Document a Symbol. "Another exception [to the rule that no one but the owner can convey good title] is in the case of a transfer by indorsement and delivery of a bill of lading, which is the symbol of the property itself, to a bona fide purchaser for value, by a consignee to whom the con- signor and original owner of the goods has indorsed and delivered it. This exception is founded on the nature of the instrument, and the necessities of commerce. The bill of lading, for the convenience of Bogert'B Sales — 10. Digitized by Microsoft® 146 BOGERT'S NEW YORK SALES ACT. § 110. Negotiation by Indorsement. trade, has been allowed to have effect at variance with the general rule of law. But this operation of a bill of lading is confined to a case where the persdn who transfers the right is himself in posses- sion of the bill of lading so as to be in a situation to transfer the instrument itself, the symbol of the property transferred." Barnard V. Campbell, 55 N. Y. 456, 461, 462, 14 Am. Rep. 289. Intent to Pass Title Necessary. Property in negotiable documents of title passes by indorsement and delivery only when the owner intended it to pass. Mere indorse- ment or mere delivery is not sufficient. The Carlos F. Roses, 177 U. S. 655, 20 S. Ct. 803, 44 U. S. (L. ed.) 929. Sections logi and no Exclusive? The section does not expressly purport to exclude negotiation of order documents otherwise than by indorsement, when they are not negotiable under section 109. But apparently the intent of the act is that sections 109 and 110 shall provide the only ways of negotiating documents of title. If they are merely delivered to another when they require indorsement the transaction amounts merely to a "trans- fer" (section 112). The rights of a transferee are shown in section lis. A transferee of an order document which lacks an indorsement secures a right to compel that indorsement (section 116). Analogous Statutory Provisions. The analogy between the provisions here made and those of the Negotiable Instruments Law is close. See Neg. Inst. Law, sec. 60. For corresponding provisions, see Gen. Bus. Law, sec. 122; Pers. Prop. Law, sec. 215 (see appendix). Digitized by Microsoft® DOCUMENTS OF TITLE. 147 § 111. Documents Marked "Not Negotiable.'' § 111. NEGOTIABLE DOCUMENTS OF TITLE MARKED "NOT NEGOTIABLE." If a document of title which contains an undertaking by a carrier, ware- houseman or other bailee to deliver the goods to the bearer, to a specified person or order, or to the order of a specified person, or which contains words of like im- port, has placed upon it the words "not negotiable," "non-negotiable" or the like, such a document may nevertheless be negotiated by the holder and is a ne- gotiable document of title within the meaning of this act. But nothing in this act contained shall be con- strued as limiting or defining the effect upon the obli- gations of the carrier, warehouseman, or other bailee is- suing a document of title of placing thereon the words "not negotiable," "non-negotiable," or the like.^ Effect of Section. The section apparently changes the common law rule that marking a bill of lading "not ne- gotiable" rendered it actually not transferrable, even though it were an order or a bearer bill. See note below. The section expressly negatives any intent to affect the effect of such words on the liability of the carrier as defined in section 365 of the Penal Law. English Act. The Sale of Goods Act contains no such section. 1 Negotiable Documents of Title Marked "Not Negotiable." Placing such words on a document raises two questions. The first is, How is the liability of the carrier affected? The second is, How is the negotiability of the document affected? Duty of Carrier to Take Up Document. The first question has been answered by statute in this state. Sec- Digitized by Microsoft® 148 BOGERT'S NEW YORK SALES ACT. § 111. Documents Marked "Not Negotiable." tion 365 of the Penal Law provides that one issuing a document of title is punishable by fine or imprisonment unless he requires its sur- render at the time he delivers the goods, unless the document is marked upon its face "not negotiable." Marking the document vifith these words tlius relieves the carrier of this criminal liability. That section HI is intended to have no eiTect on the use of the words for the purpose of avoiding this criminal liability is apparent from the last sentence of the section. For cases construing this section of the Penal Law, or its prede- cessor, see Colgate v. Pennsylvania Co., 102 N. Y. 120, 6 N. E. 114; Mairs v. Baltimore, etc., R. Co., 175 N. Y. 409, 67 N. E. 901 ; Syracuse First Nat. Bank v. New York Cent., etc., R. Co., 85 Hun 160, 32 N. Y. S. 604. Views of Draftsman and Commissioners. The draftsman of the act says regarding this section: "This section of the Sales Act, therefore, in effect, merely nullifies, so far as concerns negotiations, the words 'not negotiable' when put upon a document of title running to 'order' or 'bearer,' but does not con- cern itself with the effect of those words upon the obligation of the bailee issuing the document." (Williston on Sales, p. 705). The Commissioners on Uniform State Laws append the following note to this section : "It has been until recently the custom of the railroads to stamp upon bills of lading, even though running to order or assigns, the words "not negotiable." How far the carrier is justi- fied in attempting to limit its liability by such a device may be ques- tioned, but as this act is concerned not with the liability of the car- rier but with the rights of the various holders of the bill of lading as against each other, it seemed wise to provide merely that as be- tween those parties the words 'not negotiable' do not change the legal effect of the document." (American Uniform Commercial Acts, p. 90). New York View that Negotiability Was Destroyed. It is obvious that making a document to order or bearer and mark- ing it "not negotiable" are inconsistent acts. One must offset the other. In Gass v. Astoria Veneer Mills, 134 App. Div. 184, 190, 118 U. Y. S. 982, the court made the following statements: "Unless, therefore, the words 'not negotiable' affect the power of the consignee named in such bill of lading to transfer a valid title to a purchaser of the goods from him, free from any claim on the part of the true owner thereof, it is difficult to see what effect can be given to the said words. * * * We think, therefore, that the transferee of a bill of lading, stamped upon its face 'not negotiable' cannot avail Digitized by Microsoft® DOCUMENTS OF TITLE. 149 § 111. Documents Marked "Not Negotiatjle." himself of the beneficial provision of the Factor's Act above referred to, but is left to such rights thereunder as he might have had at common law. * * * \\f^ think it is too narrow a construction to hold that the words 'not negotiable' are intended simply to limit the responsibility of the carrier. * * * We think that by the use of these words it was also intended to give notice to such purchaser's of the possible rights of the consignor." See also Batavia Bank v. New York, etc., R. Co., 106 N. Y. 195, 12 N. E. 433, 60 Am. Rep. 440. The effect suggested in the Gass case, supra, that negotiability is destroyed, is repudiated in this section of the Sales Act and in this respect the Sales Act apparently modifies the law. Analogous Statutory Provisions. For similar provisions concerning warehouse receipts see Gen. Bus. Law, sec. 94, and concerning bills of lading, Pers. Prop. Law, sec. 194 (see appendix). Digitized by Microsoft® 150 BOGERT'S NEW YORK SALES ACT. § 112. Transfer of Non-Negotiable Documents. § 112. TRANSFER OF NON-NEGOTIABLE DOCUMENTS. A document of title which is not in such form that it can be negotiated by delivery may be transferred by the holder by delivery to a purchaser or donee. A non-negotiable document cannot be negoti- ated and the indorsement of such a document gives the transferee no additional right.^ Effect of Section. The common law did not distinguish between transfer and negotiation, but it allowed non- negotiable documents to be assigned with fully as much freedom as this section of the Sales Act. See note below. English Act. The Sale of Goods Act has no correspond- ing section. 1 Transfer of Non-Negotiable Documents. The Commissioners on Uniform State Laws annotate this section as follows : "The dis- tinction between warehouse receipts and bills of lading negotiable in form and those which are not does not seem to be observed in the English decisions ; but it is observed in this country both in the usages of warehousemen and carriers and in the decisions of the courts. See Hallgarten v. Oldham, 135 Mass. 1; Gill v. Frank, 12 Ore. 507; Forbes v. Boston, etc., R. Co., 133 Mass. 154; Litchfield Bank v. Elliott, 83 Minn. 469." (American Uniform Commercial Acts, p. 91). The section covers two kinds of documents, namely, (1) negotiable documents not properly indorsed, and (2) strictly non-negotiable documents. A transferee of the first kind of document may obtain an indorsement (sec. 116, post). Common Law View of Non-Negotiable Documents. At common law the delivery of a non-negotiable bill passed the title to the goods thereby represented. Rochester Bank v. Jones, 4 N. Y. 497, 55 Am. Dec. 290; Colgate v. Pennsylvania Co., 102 N. Y. 120, 125, 6 N. E. 114; Hoyt v. Hartford F. Ins. Co., 26 Hun 416, affirmed 96 N. Y. 650. Digitized by Microsoft® DOCUMENTS OF TITLE. 151 § 112. Transfer of Non-Negotiable Documents. And so accurately was the bill of lading deemed to represent the goods at common law, that the seller of goods was allowed to pass title to the goods by delivery of a non-negotiable bill of lading by which the goods were deliverable to the buyer. A transfer of a bill by one not technically the holder seemed to pass title. Cayuga County Nat. Bank v. Daniels, 47 N. Y. 631 ; Marine Bank v. Wright, 48 N. Y. 1 ; Cincinnati First Nat. Bank v. Kelly, 57 N. Y. 34; Commercial Bank V. Pfeiffer, 108 N. Y. 242, IS N. E. 311; Batavia First Nat. Bank v. Ege, 109 N. Y. 120, 16 N. E. 317, 4 Am. St. Rep. 131; Matter of Non- Magnetic Watch Co., 89 Hun 196, 34 N. Y. S. 1017. Analogous Statutory Provisions. For similar sections relating to warehouse receipts and bills of lad- ing, see Gen. Bus. Law, sec. 123, and Fers. Prop. Law, sec. 216 (see appendix). Digitized by Microsoft® 152 BOGERT'S NEW YORK SALES ACT. § 113. Who May Negotiate a Document. § 113. WHO MAY NEGOTIATE A DOCU- MENT. A negotiable document of title may be negoti- ated — (a) By the owner thereof, or (b) By any person to whom the possession or cus- tody of the document has been entrusted by the owner, if, by the terms of the document the bailee issuing the document undertakes to deliver the goods to the order of the person to whom the possession or custody of the document has been entrusted, or if at the time of such entrusting the document is in such form that it may be negotiated by delivery.' Effect of Section. This section modifies the common law by giving documents of title a wider negotiability than they possessed at common law. See note below. English Act. The Sale of Goods Act has no correspond- ing section. 1 Who May Negotiate a Document. This section should be read in connection with section 119, post. Common Law View of Negotiability. At common law documents of title had no negotiability. "The re- ceipts, although recognized as prima facie evidence of property in the thing receipted, in those who have them in possession, do not, it is presumed, enter into the currency, and like bank notes become the property of a bona fide holder." Brower v. Peabody, 13 N. Y. 121, 126. "Bills of lading differ essentially from bills of exchange and other commercial negotiable instruments ; and even possession of a bill of lading, without the authority of the owner and vendor of the goods, or when obtained by fraud, will not authorize a transfer so as to defeat the title of the original owner, or affect his right to rescind the sale and stop the goods in transit." Barnard v. Campbell, 55 N. Y. 456, 462, 14 Am. Rep. 289. See also Shaw v. North Penn- Digitized by Microsoft® DOCUMENTS OF TITLE. 1S3 § 113. Who May Negotiate a Document. sylvania R. Co., 101 U. S. 557, 25 U. S. (L. ed.) 892; Dows v. Perrin, 16 N. Y. 325, 333. "What has been called the common-law view, however, which treats delivery of the documents of title, whatever its form, as merely equiv- alent to the delivery of the goods, leads to a different result. For as mere delivery of possession of the goods themselves does not enable the person intrusted to transfer ownership, so it is held de- livery of the document of title can have no greater result." (Willis- ton on Sales, p. 747). Thief and Finder Excluded. This section of the act allows one who has been intrusted with the document to give good title to it, if it runs to his order or is negotiable by delivery, that is, is indorsed in blank or runs to bearer. This degree of negotiability would not include cases of a thief or finder, and if this were the only legislation on the subject, there would be no doubt that one finding or stealing a bill of lading or warehouse receipt could not give good title to it as against the true owner. As to warehouse receipts, there is no doubt that such is the law, for this section of the Sales Act simply re-enacts section 124 of the Gen. Bus. Law, in so far as warehouse receipts are concerned. Bills of Lading Act and Sales Act Inconsistent. But as to bills of lading the situation is different. The Commis- sioners on Uniform State Laws make the following note concerning this section: "By this section a negotiable document of title is not given the full negotiability of a bill of exchange, inasmuch as neither a thief nor a finder is within the terms of the section. By the Uni- form Bills of Lading Act, however, the Commissioners on Uniform State Laws adopted the principle of full negotiability. In a jurisdic- tion where it is desired that the Sales Act and the Bills of Lading Act should both be passed and should be in harmony, the following substitute is suggested for section 32 of the Sales Act as above print- ed: Section 32. (Who may Negotiate a document). A negotiable document may be negotiated by any person in possession of the same, however such possession may have been acquired if, by the terms of the document, the bailee issuing it undertakes to deliver the goods to the order of such person, or if at the time of negotiation the docu- ment is in such form that it may be negotiated by delivery." The legislature of 1911 passed both the Bills of Lading Act and the Sales Act. The former became a law June 6, 1911, the latter, June 30, 1911. The Bills of Lading Act (sec. 217, Pers. Prop. Law; see appendix) enacted a section having the exact effect of the substituted section given in the paragraph above, and thus gave bills of lading ab- Digitized by Microsoft® 154 BOGERT'S NEW YORK SALES ACT. § 113. Who May Negotiate a Document. solute negotiability. But the legislature did not accept the suggestion of the Commissioners on Uniform State Laws and change section 113 of the Sales Act so as to make it consistent with the Bills of Lading Act. The result is that we have the Bills of Lading Act declaring bills of lading absolutely negotiable and the Sales Act declaring all documents of title (which, of course, includes bills of lading) of limited negotiability and excluding the cases of finder and thief. Which act is to control the subject of the negotiability of bills of lading? Bills of Lading Probably Absolutely Negotiable. It seems probable for several reasons that the Bills of Lading Act will control and that bills of lading will have absolute negotiability. As previously noted, the Bills of Lading Act became a law June 6, 1911, and the Sales Act, June 30, 1911. Section 158 of the Sales Act provides that "Nothing in this act or in any repealing clause thereof shall be construed to repeal or limit any of the provisions of the law to make uniform the law of warehouse receipts, or of the law, if enacted, to make uniform the law of bills of lading." This express saving clause would seem to prevent a repeal of section 217 of the Personal Property Law by section 113 of the same law. "Statutes enacted at the same session of the legislature should re- ceive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of stat- utes in pari materia. Each is supposed to speak the mind of the same legislature, and the words used in each should be qualified and re- stricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session." Smith V. People, 47 N. Y. 330, 339. It would seem that these two acts could both be sustained by restricting the effect of the Sales Act (sec. 113) to documents of title other than bills of lading. "It is a rule of construction that a special statute providing for a particular case, or applicable to a particular locality, is not repealed hy a statute general in its terms and application unless the intention of the legislature to repeal or alter the special law is manifest, al- though the terms of the general act would, taken strictly and but for the special law, include the case or cases provided for by it." Buffalo Cemetery Assoc, v. Buffalo, 118 N. Y. 61, 66, 22 N. E. 962. The Bills of Lading Act is special, covering only one kind of documents of title, while the Sales Act is general, purporting to cover all docu- ments of title. Digitized by Microsoft® DOCUMENTS OF TITLE. 1S5 § 114. Rights Acquired by Negotiation. § 114. RIGHTS OF PERSON TO WHOM DOC- UMENT HAS BEEN NEGOTIATED. A person to whom a negotiable document of title has been duly ne- gotiated acquires thereby, (a) Such title to the goods as the person negotiating the document to him had or had ability to convey to a purchaser in good faith for value and also such title to the goods as the person to whose order the goods were to be delivered by the terms of the document had or had ability to convey to a purchaser in good faith for value, and (b) The direct obligation of the bailee issuing the doc- ument to hold possession of the goods for him accord- ing to the terms of the document as fully as if such bailee had contracted directly with him.* Effect of Section. This section follows out the general scheme of the Sales Act in giving documents of title ne- gotiability and, therefore, increases the rights of the taker of an order or bearer document. See note below for a dis- cussion of the change. English Act. The Sale of Goods Act does not deal with documents of title and, therefore, has no corresponding section. 1 Rights of Person to Whom Document has been Negotiated. Concerning this section the Commissioners on Uniform State Laws make the following statement: "This section follows the custom of merchants. It makes the document represent the depositor's right in the goods, so that a purchaser of the document, if he acquires a good title thereto, acquires not simply the rights of his vendor, but whatever property the original depositor had, that being what the document 156 BOGERT'S NEW YORK SALES ACT. § 114. Rights Acquired by Negotiation. represented. 32 (b) [P. P. L., § 114 (b)] makes the obligation of the warehouseman in regard to the goods negotiable. Many states already have statutes making warehouse receipts negotiable. Mohun on Ware- housemen, 944; and some states have statutes in regard to bills of lad- ing, ibid. 848, but these statutes have generally been so brief and gen- eral in terms that they have been variously construed and have to some extent failed of their purpose. See Shaw vs. North Pennsylvania R. Co., 101 U. S. 557. This section and the preceding are of fundamental importance to merchants and bankers. They state familiar law in regard to bills and notes and there is authority for them both in the statutes making warehouse receipts and bills of lading negotiable, and also in common law decisions. Pollard vs. Reardon, 65 Fed. Rep. 848 (C. C. A.) ; Munroe vs. Philadelphia Warehouse Co., 75 Fed. Rep. 545. See also Commercial Bank vs. Armsby Co., 120 Ga. 74. But the language at least of other cases would seem to indicate the theory that the form of a document of title, though negotiable, is only evidence of inten- tion and that other evidence is admissible to show intention, to trans- fer or retain title even as against innocent third persons. See The Carlos F. Roses, 177 U. S. 655, 665 ; Washburn Crosby Co. vs. Boston & Albany R. Co., 180 Mass. 252, 257 ; Neimeyer Lumber Co. vs. Burling- ton, etc. & Mo. R. Co., 54 Neb. 321." (30 Am. Bar Assoc. Rep. 365, 366). The draftsman of the act puts the query as to what is the title transferred by negotiation of negotiable documents and gives the following answer: "The answer to this question, according to what may be called the common-law theory of documents of title, is that the indorsee acquires such title by means of the document as the indorser could have given him by delivery of the goods. That the indorsee, unless the indorser manifests a contrary intention, acquires as much right as this is clear." (Williston on Sales, p. 731). Common Law View. The common law theory in this state is well expressed in Gass v. Astoria Veneer Mills, 134 App. Div. 184, 185, 187, 118 N. Y. S. 982, as follows : "A bill of lading in the first instance represents the contract between the shipper and the carrier, by which, for a specified sum the latter undertakes to deliver the goods received by it to the rightful owner thereof, and to no other person. (McEntee v. New Jersey Steamboat Co., 45 N. Y. 34). The consignee named in the bill of lading is presumptively the owner of the goods, and entitled upon complying with the terms of the contract of carriage, to demand pos- session of the same (1 Hutch. Carr. (3d ed.) § 177; Bailey v. Hud- son River R. Co., 49 N. Y. 70) and a delivery to a consignee or by his direction is a good delivery. (Sweet v. Barney, 23 N. Y. 335). DOCUMENTS OF TITLE. 1S7 § 114. Rights Acquired by Negotiation. A bill of lading also stands for many purposes as the representative of the goods shipped, and at common law the title to the goods while they were in the possession of the carrier as bailee might be trans- ferred by means of an indorsement and delivery of the bill of lad- ing to a third person, whose title to them however, was no better than that of the person by whom the transfer was made. (6 Cyc. 424; Commercial Bank v. Pfeiffer, 108 N. Y. 250; Shaw v. North Pennsylvania R. Co., 101 U. S. 557). A bill of lading is sometimes spoken of as a negotiable or quasi-negotiable instrument. (6 Cyc. 424; Shaw v. North Pennsylvania R. Co., supra). What is meant by that term as applied to a bill of lading? ♦ * * [then follow quota- tions from Shaw v. North Pennsylvania R. Co.] * * * Jt would seem, therefore, to be the law, in the absence of any statute affect- ing the question, that the transferee of a negotiable bill of lading would acquire no higher or better title to the goods represented there- by than his transferrer had, unless the true owner of property by his voluntary act or by his negligence or carelessness has put it in the power of another to occupy ostensibly the position of owner so that he may be estopped from asserting his right against a purchaser thereof who has been misled to his hurt by his action or conduct. Negotiability of a bill of lading, therefore, means assignability, so far as the written contract of carriage is concerned, and so far as the goods described in the bill of lading are concerned a conveyance of such title thereto as the transferrer had." See also Spinney v. Thur- ber, 33 Hun 448, affirmed 102 N. Y. 652; Syracuse First Nat. Bank V. New York Cent. R. Co., 85 Hun 160, 32 N. Y. S. 604. The Sales Act adds to the rights acquired by a buyer of a docu- ment of title all rights held by the original depositor or shipper of the goods and of subsequent indorsees of the document. The common law gave the buyer of the document merely the rights of his imme- diate seller. Factor's Act. It is important to notice the effect of the Factor's Act in giving a certain degree of negotiability to documents of title. That question is discussed in Gass v. Astoria Veneer Mills, supra, and the court says (pp. 188-189) : "We think it is apparent that the purpose and object of the two statutes taken together was, first, to give a bill of lading, issued in the ordinary form, a higher quality of negotiability than simply to make it transferrable by indorsement and delivery. The voluntary act of the owner of property in giving to another a bill of lading which unqualifiedly directs the common carrier to whom the goods therein described have been committed for transportation. 158 BOGERT'S NEW YORK SALES ACT. § 114. Rights Acquired by Negotiation. to deliver such goods to the person named in the bill of lading or to his order, is deemed a sufficient act to estop him from making any claim upon the goods against a person dealing in good faith with the person named therein. Second, as a further protection to such persons the Penal Code provided for the punishment of the common carrier who should deliver the goods described in such a bill of lading to any other person than the consignee, while such bill of lad- ing was outstanding and might come into the hands of an innocent purchaser thereof." Thus the Factor's Act has the effect of giving negotiability to documents when entrusted to agents for special pur- poses, while the Sales Act makes all documents negotiable when en- trusted to any one for any purpose. (See Pers. Prop. Law, sec. 43). Bills of lading are probably absolutely negotiable by virtue of the Bills of Lading Act. (See note to sec. 113, ante). It will be germane to notice here several instances in which the buyer of a document of title acquires no title to the goods supposed to be represented by it. No Goods Shipped or Deposited. Where no goods have been deposited or shipped obviously the buyer gets no title to any specific goods. But a carrier is estopped to deny the statement in a bill of lading that goods have been received by it for carriage, where the bill was issued by a duly authorized agent, and a bona fide purchaser for value has acted on the representation made in a bill to his detriment. Armour v. Michigan Cent. R. Co., 65 N. Y. Ill, 22 Am. Rep. 603; Batavia Bank v. New York, etc., R. Co., 106 N. Y. 195, 12 N. E. 433, 60 Am. Rep. 440. Misdescription of Goods. Some goods may have been received by the warehouseman or carrier but they may have been misdescribed. The rule regarding action upon the basis of this misdescription is laid down in Dean v. Driggs, 137 N. Y. 274, 282, 33 N. E. 326, 19 L.R.A. 302, 33 Am. St. Kep. 721, as follows: "All he [the warehouseman] can be fairly charged with asserting by the mere acknowledgment of the receipt of merchandise thus described is that the box or barrel in which it is packed bears the same outward appearance as does the box or bar- rel in which merchandise of the character described is usually carried, and that there is nothing unusual or out of the ordinary way of busi- ness in the marks, appearance, signs, labels or character of the barrel or box from that in which goods of the character described are usu- ally transported, and that the articles have been represented to him and that he believes them to be as described." See also Miller v. Han- DOCUMENTS OF TITLE. 159 § 114. Rights Acquired by Negotiation. nibal R. Co., 90 N. Y. 430, 43 Am. Rep. 179 ; Chicago First Nat. Bank V. Dean, 137 N. Y. 110, 32 N. E. 1108. Statutory Rules Regarding Description. The Warehouse Receipts Law and the Bills of Lading Act now re- quire the warehouseman or carrier to mark the goods "said to con- tain" or "contents unknown" or in some similar way, if they wish to avoid liability for misdescription. (Gen. Bus. Law, sec. 106; Pers. Prop. Law, sec. 209. See Appendix). This is apparently a change in the law. Receipt Running to the Giver Invalid. Where a document is given by a warehouseman to himself or by an officer of a warehousing corporation on behalf of the corporation to himself it cannot have effect as a negotiable document. Yenni v. Mc- Namee, 45 N. Y. 614; Farmers' Nat. Bank v. Lang, 87 N. Y. 209; Nei"/ York Nat. Banking Assoc. Bank v. American Dock Co., 143 N. Y. 559, 38 N. E. 713 ; Hanover Nat. Bank v. American Dock Co., 148 N. Y. 612, 43 N. E. 72; Corn Exch. Bank v. American Dock Co., 149 N. Y. 174, 43 N. E. 915. Deposit by One Not the Ozvner. A person depositing goods not his own with a bailee and taking a document of title in his own name, can give no title to the goods to a bona fide purchaser by a transfer of the document. Brower v. Peabody, 13 N. Y. 121. See Ball v. Liney, 48 N. Y. 6, 8 Am. Rep. 511, regarding the duty of a warehouseman where conflicting claims are made to goods de- posited with him. See also Gen. Bus. Law, sees. 103-104. Sale of Document After Goods Are Destroyed. If the goods are destroyed after their receipt by the warehouse- man or carrier, but before the transfer of the document of title, it is apparent that the transferee of the document can acquire no title to the goods. His rights are defined in sections 88 and 89, ante. Spent Documents. Where the document is "spent," that is, where the goods have been delivered by the carrier or warehouseman, obviously no title to the goods can be transferred by means of an outstanding document. Na- tional Commercial Bank v. Lackawanna Transp. Co., 59 App. Div. 270, 69 N. Y. S. 396, affirmed 172 N. Y. 596, 64 N. E. 1123. Liability of Carrier for Failure to Require Surrender of Document. By section 365 of the Penal Law a person issuing a document is made criminally liable for failure to require the surrender of such document on the delivery of the goods, unless the document is marked on its face "not negotiable." Upon this subject see Colgate v. Penn- sylvania Co., 102 N. Y. 120, 6 N. E. 114, Furman v. Union Pac. R. 160 BOGERT'S NEW YORK SALES ACT. § 114. Rights Acquired by Negotiation. Co., 106 N. Y. 579, 13 N. E. 587 ; National Commercial Bank v. Lacka- wanna Transp. Co., 59 App. Div. 270, 69 N. Y. S. 396, affirmed 172 N. Y. 596, 64 N. E. 1123; Mairs v. Baltimore R. Co., 73 App. Div. 265, 76 N. Y. S. 838, affirmed 175 N. Y. 409, 67 N. E. 901. Section 200 of the Personal Property Law (Bills of Lading Act; See Appendix) makes a carrier liable for damage suffered by reason of his failure to take up a bill of lading, and section 98 of the Gen- eral Business Law makes a similar provision regarding warehouse re- ceipts. First Bailor's or Shipper's Rights Transferred. By the Sales Act the negotiation of a negotiable document trans- fers to the taker all the first bailor's or shipper's rights against the warehouseman or carrier. Under a somewhat similar statute (L. 1858, ch. 326, sec. 6; repealed by L. 1886, ch. 393) it was held thati a pro- vision making warehouse receipts not marked non-negotiable trans- ferrable by indorsement gave to the indorsee of such a receipt all the remedies against the warehouseman which the original depositor had. Whitlock V. Hay, 58 N. Y. 484. Freight. Concerning the respective liabilities of the original shipper and a taker of the bill of lading for freight, see Elwell v. Skiddy, 77 N. Y. 282; Ackerman v. Redfield, 9 Hun (N. Y.) 378; Gilson v. Madden, 1 Lans. (N. Y.) 172; Jobbitt v. Goundry, 29 Barb. (N. Y.) 509. DOCUMENTS OF TITLE. 161 § 115. Rights Acquired by Transfer. § 115. RIGHTS OF PERSON TO WHOM DOC- UMENT HAS BEEN TRANSFERRED. A person to whom a document of title has been transferred, but not negotiated, acquires thereby, as against the transferrer, the title to the goods, subject to the terms of any agree- ment with the transferrer. If the document is non-ne- gotiable, such person also acquires the right to notify the bailee who issued the document of the transfer thereof, and thereby to acquire the direct obligation of such bailee to hold possession of the goods for him ac- cording to the terms of the document. Prior to the no- tification of such bailee by the transferrer or transferee of a non-negotiable document of title, the title of the transferee to the goods and the right to acquire the ob- ligation of such bailee may be defeated by the levy of an attachment or execution upon the goods by a creditor of the transferrer, or by a notification to such bailee by the transferrer or a subsequent purchaser from the trans- ferrer of a subsequent sale of the goods by the trans- ferrer.* Effect of Section. This section is believed to alter the effect of the transfer of a non-negotiable instrument in New York. At common law transfer of the instrument was equivalent to delivery of the goods. Under the act more than mere delivery of the document must take place to pass title effectually. See note below. English Act. The Sale of Goods Act has no corres- ponding section. 1 Rights of Person to Whom Document has been Transferred. The draftsman of the act says regarding this section: "The rule pro- Bogert's Sales — 11. 162 BOGERT'S NEW YORK SALES ACT. § 115. Rights Acquired by Transfer. vided by the last paragraph of section 34 of the Sales Act is a neces- sary consequence of the theory of documents of title adopted by that act, for where there is merely a transfer of a non-negotiable docu- ment of title the document does not control the possession of the goods, and is not, therefore, a symbol of them. Accordingly there is no delivery, and where delivery is necessary for the transfer of a title good against subsequent purchasers or creditors of the seller, the rights of the transferee are inferior to those of the attaching creditor or the subsequent purchaser." (Williston on Sales, p. 738). New York Common Law View. It is submitted, however, that the transfer of a non-negotiable docu- ment at common law in New York was equivalent to the delivery of the goods themselves, and that therefore the question of the rights of subsequent purchasers where the seller remained in possession did not arise. "The delivery of the bill of lading not only passes title to the party receiving the same, but, in the eye of the law, the transfer of the bill of lading is regarded as an actual delivery and an actual change of possession of the property (Commercial Bank v. Pfeiffer, 108 N. Y. 242, 250, and authorities there cited.)" Gass v. Astoria Ve- neer Mills, 121 App. Div. 182, 105 N. Y. S. 794, 134 App. Div. 184, 118 N. Y. S. 982; Gibson v. Stevens, 8 How. 384, 12 U. S. (L. ed.) 1123; Collins v. Ralli, 20 Hun 246, affirmed 85 N. Y. 637; Hoyt v. Hartford F. Ins. Co., 26 Hun 416, affirmed 96 N. Y. 650; Rawls v. Deshler, 3 Keyes (N. Y.)572 ; City Bank v. Rome R. Co., 44 N. Y. 136 ; Yenni v. Mc- Namee, 45 N. Y. 614 ; Merchants' Bank v. Union R. Co., 69 N. Y. 373, 379; Commercial Bank v. Pfeiflfer, 108 N. Y. 242, IS N. E. 311; Manu- facturers' Commercial Co. v. Rochester R. Co., 117 N. Y. S. 989. Necessity of Notice. The New York cases at common law seem to deem notice to the person in possession of the goods unnecessary, and mere delivery of the non-negotiable bill of lading sufficient to constitute a change of possession. Marine Bank v. Wright, 48 N. Y. 1 ; Western Transp. Co. V. Marshall, 4 Abb. App. Dec. (N. Y.) 575; Dows v. Greene, 32 Barb. (N. Y.) 490, affirmed 24 N. Y. 638. See also Skilling V. Bollman, 7Z Mo. 665, 39 Am. Rep. 537 ; 4 Am. & Eng. Enc. of Law (2d ed.) 553. The section covers two classes of documents, namely, documents ne- gotiable in form, but not properly indorsed, and documents not nego- tiable in form. The transferee of a document of the first class may require an indorsement (sec. 116, post). Afjalogous Statutory Provisions. For similar provisions concerning warehouse receipts see Gen. Bus. DOCUMENTS OF TITLE. 163 § lis. Rights Acquired by Transfer. Law, sec. 126, and concerning bills of lading, see Pers. Prop. Law, sec. 219 (appendix). Massachusetts View. The doctrine of the section under discussion is adopted in Hall- garten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433, in which case a credit- or who levied upon goods in a warehouse was given priority over a buyer of a non-negotiable receipt for the goods. This was on the theory that there had been no true change of possession until the warehouseman attorned to the buyer of the receipt. In Brown v. Floersheim Mercantile Co., 206 Mass. 373, 92 N. E. 494, the Sales Act was considered in this connection and it was held that a broker to whom a non-negotiable bill of lading had been delivered for the purpose of selling the goods on commission did not have pos- session of "goods, effects or credits" of his principal so as to render him liable to trustee process by a creditor of the shipper of the goods. The court said that a non-negotiable bill did not represent the goods. "The Sales Act, upon which the plaintiffs rely, recognizes this dis- tinction. A negotiable bill of lading is made a 'document of title' which upon indorsement passes the property and operates as a direct delivery of the goods of which it is the symbol; * * * while, if non-nego- tiable, the bill of lading cannot be treated as negotiable and the in- dorsement confers upon the transferee no additional right. It does not control the possession of the goods, and there is no delivery. The transferee obtains only the title of the transferrer, although by proper notice, where there are no intervening rights, he may require the car- rier to hold possession of the property for him according to the terms of the bill. St. 1908, c. 237, §§ 31, 34" (p. 37S). 164 BOGERT'S NEW YORK SALES ACT. § 116. Transfer without Indorsement. § 116. TRANSFER OF NEGOTIABLE DOCU- MENT WITHOUT INDORSEMENT. Where a ne- gotiable document of title is transferred for value by delivery, and the indorsement of the transferrer is es- sential for negotiation, the transferree acquires a right against the transferrer to compel him to indorse the document unless a contrary intention appears. The ne- gotiation shall take effect as of the time when the in- dorsement is actually made.* Effect of Section. This section is part of the general scheme of the Sales Act to build up for documents of title a degree of negotiability hitherto unknown and thus modi- fies the common law. See note below. English Act. The Sale of Goods Act has no correspond- ing section. 1 Transfer of Negotiable Document without Indorsement. "This provision is copied from a similar provision in the Negotiable In- struments Law, and it is obvious that if indorsement is essential to a perfect title for a purchaser, he should have a right to compel one who has purported to transfer title to him to make that indorsement." (Williston on Sales, p. 740). Analogous Statutory Provisions. Corresponding sections are found in sec. 79, Neg. Inst. Law, sec. 127, Gen. Bus. Law and sec. 220, Pers. Prop. Law (See appendix). New York Common Law. As has been stated, the New York courts have not regarded indorse- ment of an order bill as necessary to transfer the title to the goods which it represented. They have considered delivery sufficient. City Bank v. Rome R. Co., 44 N. Y. 136; Cayuga County Nat. Bank v. Daniels, 47 N. Y. 631; Merchants' Bank v. Union R. Co., 69 N. Y. 373. Therefore, the question of the right to compel an indorsement of a document has had no importance. See Goshen Nat. Bank v. Bingham, 118 N. Y. 349, 23 N. E. 180, 7 L.R.A. 595, 16 Am. St. Rep. 765, concerning the eflfect of an indorse- ment of a negotiable instrument made after the instrument was trans- ferred. DOCUMENTS OF TITLE. 165 § 117. Warranties on Sale of Document. § 117. WARRANTIES ON SALE OF DOCU- MENT. A person who for value negotiates or trans- fers a document of title by indorsement or delivery, in- cluding one who assigns for value a claim secured by a document of title unless a contrary intention appears, warrants : (a) That the document is genuine ; (b) That he has a legal right to negotiate or trans- fer it; (c) That he has knowledge of no fact which would impair the validity or worth of the document, and (d) That he has a right to transfer the title to the goods and that the goods are merchantable or fit for a particular purpose, whenever such warranties would have been implied if the contract of the parties had been to transfer without a document of title the goods repre- sented thereby.^ Effect of Section. This section is probably declaratory of the common law. See note below. English Act. There is no corresponding section of the Sale of Goods Act. 1 Warranties on Sale of Document. "The provisions of the Sales Act in regard to warranties on the negotiation or transfer of a docu- ment of title for value probably express the existing law apart from statute." (Williston on Sales, p. 743). Analogous Statutory Provisions. Section US of the Negotiable Instruments Law is the source of subdivisions (a), (b) and (c). For corresponding sections see Gen. Bus. Law, sec. 128 and Pers. Prop. Law, sec. 221 (appendix). Similar Warranties on Sale of Bills and Notes. For cases discussing the warranties named in subdivisions (a), (b) 166 BOGERT'S NEW YORK SALES ACT. § 117. Warranties on Sale of Document. and (c) in connection with bills and notes, see Whitney v. National Bank, 45 N. Y. 303; Littauer v. Goldman, 72 N. Y. 506, 28 Am. Rep. 171; Meriden Nat. Bank v. Gallaudet, 120 N. Y. 298, 24 N. E. 994; Canal Bank v. Albany Bank, 1 Hill (N. Y.) 287; Herrick v. Whitney, IS Johns. (N. Y.) 240. It is apparent that it is immaterial whether a sale be made directly of the goods themselves or of the goods by means of docu- ments representing them. In both cases the seller's liability ought to be the same, and so subdivision (d) provides. See sections 93-97, ante. Assignment of Claim Secured by Document. Upon the question of the liability of "one who assigns for value a claim secured by a document of title," see Ross v. Terry, 63 N. Y. 613, in which case it was held that one assigning a mortgage with warranty and a bond along with it but without express warranty, im- pliedly warrants the validity of the bond since the bond is the prin- ciple debt and the mortgage would not be valid if the bond were in- valid. DOCUMENTS OF TITLE. 167 § 118. Indoiser not a Guarantor. §118. INDORSEE NOT A GUARANTOR. The indorsement of a document of title shall not make the in- dorser liable for any failure on the part of the bailee who issued the document or previous indorsers thereof to fulfill their respective obligations.^ Effect of Section. This section doubtless states the pre- existing law. See note below. English Act. The Sale of Goods Act has no correspond- ing section. 1 Indorser Not a Guarantor. "The indorsement of a document of title seems generally to have been understood to amount to a con- veyance merely by the indorser, not a contract of guaranty, and such is the law, even though a local statute declares that bills of lading are negotiable like bills of exchange." (Williston on Sales, p. 744). For cases supporting the theory of the section see Shaw v. North Pennsylvania R. Co., 101 U. S. 557, 25 U. S. (L. ed.) 892; Mida v. Geissmann, 17 111. App. 207; Maybee v. Tregent, 47 Mich. 495, 11 N. W. 287; Gass v. Astoria Veneer Mills, 134 App. Div. 184, 185, 187, 118 N. Y. S. 982. Analogous Statutory Provisions. For sections concerning various commercial documents and cover- ing a similar field, see Neg. Inst. Law, sec. 116; Gen. Bus. Law, sec. 129; Pers. Prop. Law, sec. 222 (appendix). 168 BOGERT'S NEW YORK SALES ACT. § 119. Fraud, Mistake or Duress in Negotiation. § 119. WHEN NEGOTIATION NOT IMPAIRED BY FRAUD, MISTAKE OR DURESS. The validity of the negotiation of a negotiable document of title is not impaired by the fact that the negotiation was a breach of duty on the part of the person making the ne- gotiation, or by the fact that the owner of the document was induced by fraud, mistake or duress to entrust the possession or custody thereof to such person, if the per- son to whom the document was negotiated or a person to whom the document was subsequently negotiated paid value therefor, without notice of the breach of duty, or fraud, mistake or duress.* Effect of Section. In connection with the preceding sec- tions this section has the effect of modifying the common law by extending the negotiability of documents of title. See note below. English Act. There is no corresponding section in the Sale of Goods Act. 1 When Negotiation Not Impaired by Fraud, Mistake or Duress. 'This section of the Sales Act merely elaborates section 32 (b). [Pers. Prop. Law, sec. 113]. As a change of the common law was intended, it seemed desirable to make this statement abundantly clear, espe- cially as courts have shown an inclination to limit the effect of statutes aimed at making documents of title negotiable." (Williston on Sales, p. 746). Common Law. At common law the transferee or indorsee of a document obtained merely the title which his transferrer or indorser had, regardless of whether the document had been intrusted to the transferrer or indorser or not, and regardless of whether there had been breach of duty, fraud, mistake or duress in the transfer or indorsement. See notes to sec- tions 113 and 114, ante. DOCUMENTS OF TITLE. 169 § 119. Fraud, Mistake or Duress in Negotiation. Analogous Statutory Provisions. For sections of other commercial acts covering the same subject, see Neg. Inst. Law, sections 94 and 96; Gen. Bus. Law, sec. 131; Pers. Prop. Law, sec. 224 (see appendix). If the owner of a document of title wishes to protect himself against fraud on the part of a person to whom he intrusts the docu- ment, he should stamp upon it the purpose for which it is intrusted to the agent, and then all persons dealing with the document will take with notice. Farmers' Nat. Bank v. Logan, 74 N. Y. 568. 170 BOGERT'S NEW YORK SALES ACT. § 120. Attachment or Levy upon Goods. § 120. ATTACHMENT OR LEVY UPON GOODS FOR WHICH A NEGOTIABLE DOCU- MENT HAS BEEN ISSUED. If goods are delivered to a bailee by the owner or by a person whose act in con- veying the title to them to a purchaser in good faith for value would bind the owner and a negotiable document of title is issued for them they cannot thereafter, while in the possession of such bailee, be attached by garnish- ment or otherwise or be levied upon under an execution unless the document be first surrendered to the bailee or its negotiation enjoined. The bailee shall in no case be compelled to deliver up the actual possession of the goods until the document is surrendered to him or im- pounded by the court.' Effect of Section. This section is a continuance of the treatment of a document of title as a negotiable instrument and so differs from the common law, which regarded it as a symbol of the goods. See note below. English Act. There is no corresponding section in the Sale of Goods Act. 1 Attachment or Levy upon Goods for Which a Negotiable Docu- ment Has Been Issued. Commissioners' Note. "If the mercantile theory of documents of title, such as bills of lading and warehouse receipts, were carried to its logical extent, no attachment of the goods represented by the document or levied upon them could be permitted while the negotiable document was outstanding. For the mercantile theory is founded upon the idea that a negotiable document of title represents the goods and may be safely dealt with on that assump- tion. For one and the same reason it is not admissible for the bailee to deliver the goods without taking up an outstanding negotiable re- ceipt for them, and for the law to allow attachment or levy upon the DOCUMENTS OF TITLE. 171 S 120. Attachment or Levy upon Goods. goods, regardless of outstanding negotiable documents. For a similar reason the maker of negotiable notes is protected by garnishment; in most states by absolutely disallowing such garnishment and in other states by making any garnishment subject to the rights of even a subsequent purchaser for value before maturity of the paper. Like- wise by statute in some states an attachment of stock is postponed to a subsequent purchaser of the stock certificate. Clews vs. Friedman, 182 Mass. 5SS. So in the case of carriers, some protection against gar- nishment has been given. In most states, if the goods are actually in transit the carrier cannot be garnished, 14 Am. & Eng. Enc. of Law 810. A transfer of the bill of lading prevails over a subse- quent attachment. Mather vs. Gordon, 59 Atl. 424 (Conn.) ; Robert C. White Co. vs. Chicago & C. R. R. Co., 87 Mo. App. 330; Union Bank vs. Rowan, 23 S. C. 339; and in Peters vs. Elliott, 78 111. 321, it was held that an attaching creditor of a consignor was postponed to one who bought the bill of lading subsequently. It was thought best in this draft not to take the extreme position that no attachment, gar- nishment or levy could be made on property for which a negotiable document was outstanding, but to cover the essential practical point by making it a condition of the validity of such seizure that the nego- tiation of the document be enjoined or the document impounded. The following section expressly gives the court full power to aid, by in- junction and otherwise, a creditor seeking to get at a negotiable docu- ment and the property covered thereby." (Note of Commissioners on Uniform State Laws, 30 Am. Bar Assoc. Rep. 368, 369). Illustrative Common Law Cases. Where parties agree that title shall be reserved in the seller until payment of a draft for the price, the creditors of the buyer can ac- quire no rights in the goods prior to such payment, even though the bill of lading is a straight bill, and is made to the buyer. Merchants' Exch. Bank v. McGraw, 59 Fed. 972, 8 C. C. A. 420. A bank taking a bill of lading indorsed by the shipper to the consignee as security for the payment of a draft discounted by the bank, takes a title su- perior to that of creditors of the shipper who attach the goods after the delivery of the bill to the bank. Chicago First Nat. Bank v. Bay- ley, lis Mass. 228. A bank receiving a bill of lading from a shipper, indorsed by him to the buyer, and discounting a draft on the buyer upon the security of such bill of lading, gets a title superior to an at- taching creditor of the buyer who attaches the goods while in transit. Mather v. Gordon, 77 Conn. 341, 59 Atl. 424. A person taking a bill of lading for goods shipped has a title superior to that of creditors of 172 BOGERT'S NEW YORK SALES ACT. § 120. Attachment or Levy upon Goods. the shipper who attach the goods after the transfer of the bill. Peters V. Elliott, 78 111. 321. Where a warehouseman gives a receipt for cot- ton stored by A in which he promises to deliver the cotton to A or the bearer of the receipt, and the warehouseman is subsequently served with summons of garnishment by a creditor of A, the warehouseman is not relieved from liability by the delivery of the cotton to the hold- er of the receipt, to whom it was transferred after the service of the garnishment. Smith v. Picket, 7 Ga. 104, SO Am. Dec. 385. Analogous Statutory Provisions. For corresponding sections of the Warehouse Receipts Law and the Bills of Lading Act, see Gen. Bus. Law, sec. 110, and Pars. Prop. Law, sec. 210 (appendix). DOCUMENTS OF TITLE. 173 § 121. Creditors' Remedies to Reach Documents. § 121. CREDITORS' REMEDIES TO REACH NEGOTIABLE DOCUMENTS. A creditor whose debtor is the owner of a negotiable document of title shall be entitled to such aid from courts of appropriate jurisdiction by injunction and otherwise in attaching such document or in satisfying the claim by means thereof as is allowed at law or in equity in regard to property which cannot be readily attached or levied upon by ordinary legal process.* Effect of Section. The section is obviously merely a statement that existing remedies are continued. English Act. The Sale of Goods Act has no correspond- ing section. 1 Creditors' Remedies to Reach Negotiable Documents. "As the right of legal garnishment of bailed property is limited by the pre- ceding section, section 40 [Pers. Prop. Law, sec. 121] gives the creditor such rights as are included under the heads of bills of equitable attach- ment or in aid of execution." (Note of Commissioners on Uniform State Laws, American Uniform Commercial Acts, p. 95). Analogous Statutory Provisions. For corresponding sections of the Warehouse Receipts Law and Bills of Lading Act, see Gen. Bus. Law, sec. Ill, and Pers. Prop- Law, sec. 211 (appendix). PART III. PERFORMANCE OF THE CONTRACT. CHAPTER X. CONTRACTUAL OBLIGATIONS OF THE PARTIES. § 122. SELLER MUST DELIVER AND BUYER ACCEPT GOODS. It is the duty of the seller to de- liver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale. Effect of Section. The section is declaratory of ele- mentary principles and will be considered with section 123. See note to that section. English Act. Section 27 of the Sale of Goods Act is the model from which this section is taken. 174 CONTRACTUAL OBLIGATIONS OF THE PARTIES. 175 § 123. Delivery and Payment Concurrent Conditions. § 123. DELIVERY AND PAYMENT ARE CON- CURRENT CONDITIONS. Unless otherwise agreed, delivery of the goods and payment of the price are con- current conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for pos- session of the goods.^ Effect of Section. This section is obviously declaratory of fundamental principles of the common law. See note below. English Act. Section 28 of the Sale of Goods Act is the equivalent of this section. 1 Delivery, Acceptance and Payment. "In contracts for the pur- chase of property, real or personal, where there is no stipulation for credit or delay on either side, the delivery of the property (or its con- veyance where it is of a nature to pass by grant), and the payment of the price are each conditions of the other, and neither party can sue for a breach without having offered performance on his part." Tip- ton V. Feitner, 20 N. Y. 423, 425. "Upon the ordinary agreement to sell and to purchase personal property, in the absence of any agree- ment or provision in the agreement as to the time or manner of pay- ment, delivery and payment are simultaneous acts, and, as a tender, is equivalent in law to performance; a tender of delivery or payment by one person to the other gives the person making the tender the right to enforce the performance of the contract against the other." Saw- yer V. Dean, 114 N. Y. 469, 477, 21 N. E. 1012. Illustrative Cases. For similar statements and holdings supporting the doctrine of sec- tions 122 and 123, see Dunham v. Pettee, 8 N. Y. 508, 512, 513; Pope V. Terre Haute Car Co., 107 N. Y. 61, 65, 13 N. E. 592; Ziehen v. Smith, 148 N. Y. 558, 42 N. E. 1080; Gross v. Ajello, 132 App. Div. 25, 116 N. Y. S. 380; Phelan v. Jones, 114 N. Y. S. 9; Armstrong v. 176 BOGERT'S NEW YORK SALES ACT. § 123. Delivery and Payment Concurrent Conditions. Heide, 47 Misc. 609, 94 N. Y. S. 434; Hendrickson v. Callan, 70 Misc. 342, 128 N. Y. S. 980; Cook v. Ferral, 13 Wend. (N. Y.) 285; Porter V. Rose, 12 Johns. (N. Y.) 209, 7 Am. Dec. 306; Kelley v. Upton, S Duer (N. Y.) 336, 340. Delivery. For a discussion of the meaning of the word "delivery" see Stanley V. Dryer, 70 Misc. 561, 127 N. Y. S. 468, and section 156, post. It is obvious that the parties may agree that the payment shall be wholly or partly before delivery. Joyce v. Adams, 8 N. Y. 291. While de- livery and payment are concurrent conditions, the buyer, where de- livery is tendered to him unexpectedly, is entitled to a reasonable time to procure cash if the seller refuses to take a check. Bass v. White, 65 N. Y. 565. Where delivery strictly according to the con- tract is prevented by an order of the board of health of New York, the seller is excused from strict performance but required to make the best performance possible. J. H. Labaree Co. v. Grossman, 100 App. Div. 499, 92 N. Y. S. 565, affirmed 184 N. Y. 586, 77 N. E. 1189, Acceptance. Where the buyer fails to remove the goods the seller's duty is that of a gratuitous bailee only. Koon v. Brinkerhoff,. 39 Hun (N. Y.) 130. Where the buyer cannot know until notice from the seller that the goods are ready for delivery, he is not in default for not ac- cepting the goods until such notice is given. National Coal Tar Co. v. Maiden Gaslight Co., 189 Mass. 234, 75 N. E. 625. Tender. Tender of delivery is equivalent to delivery. Bement v. Smith, 15 Wend. (N. Y.) 493. Tender of a check is insufficient as tender of the price. Volk v. Olsen, 54 Misc. 227, 104 N. Y. S. 415. Excuse for Non-delivery. Where payment is to be made in the notes of a third party who be- comes insolvent before delivery, the seller is excused from making de- livery. Benedict v. Field, 16 N. Y. 595; Roget v. Merritt, 2 Cai. (N. Y.) 117; Waldron v. Stevens, 12 Wend. (N. Y.) 100. Negotiable paper of a third person is presumptively taken as absolute payment. Gibson v. Tobey, 46 N. Y. 637, 7 Am. Rep. 397. Credit. Credit extends from the day of delivery. Grabfelder v. Vosbnrgh, 90 App. Div. 307, 85 N. Y. S. 633. If no credit be given, the fact that notes were taken for the price does not prevent suit for the price be- fore the notes mature. Fuller v. Negus, 55 Hun 608, 8 N. Y. S. 681. Default After Part Payment. "Where a vendor of chattels, when the period of performance ar- CONTRACTUAL OBLIGATIONS OF THE PARTIES. 177 § 123. Delivery and Payment Concurrent Conditions. rives, is ready and offers to perform on his part, and the purchaser neglects and refuses to perform for any reason, he cannot recover back the partial payments he has made." Empire State Type Found- ing Co. v. Grant, 114 N. Y. 40, 45, 21 N. E. 49; Scher v. Roher, 34 Misc. 792, 69 N. Y. S. 929; Haynes v. Hart, 42 Barb. (N. Y.) 58; Monroe v. Reynolds, 47 Barb. (N. Y.) 574. Bogert's Sales — 12. BOGERT'S NEW YORK SALES ACT. § 124. Place, Time and Manner of Delivery. § 124. PLACE, TIME AND MANNER OF DE- LIVERY. 1. Whether it is for the buyer to take pos- session of the goods or for the seller to send them to the buyer is a question depending in each case on the con- tract, express or implied, between the parties. Apart from any such contract, express or implied, or usage of trade to the contrary, the place of delivery is the sell- er's place of business if he have one, and if not his resi- dence ; but in case of a contract to sell or a sale of spe- cific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery.* 2. Where by a contract to sell or a sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.^ 3. Where the goods at the time of sale are in the pos- session of a third person, the seller has not fulfilled his obligation to deliver to the buyer unless and until such third person acknowledges to the buyer that he holds the goods on the buyer's behalf; but as against all others than the seller the buyer shall be regarded as having re- ceived delivery from the time when such third person first has notice of the sale. Nothing in this section, how- ever, shall affect the operation of the issue or transfer of any document of title to goods.' 4. Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact.* 5. Unless otherwise agreed, the expenses of and inci- dental to putting the goods into a deliverable state must be borne by the seller.* CONTRACTUAL OBLIGATIONS OF THE PARTIES. 179 § 124. Place, Time and Manner of Delivery. Effect of Section. The section is declaratory of the common law. English Act. The American section is modelled after section 29 of the Sale of Goods Act and is its substantial equivalent. Where the buyer of a launch to be delivered on a certain date is to provide a ship to receive it, and he does not notify the seller that he has a ship ready to re- ceive it, the seller is not liable for damages for breach of contract because of three months' delay in readiness to deliver the launch. Forrestt v. Aramayo, 83 L. T. N. S. 335. 1 Place of Delivery. "By the general rule of law, the vendor on a sale of chattels is bound to deliver them to the vendee at the place where they are at the time of the sale, on performance by the latter of the terms of sale, although the contract is silent on the subject of delivery. The obligation to deliver, if not expressed, is implied." Gray v. Walton, 107 N. Y. 254, 258, 14 N. E. 191. See also E. W. Bliss Co. V. U. S. Incandescent Gas Light Co., 149 N. Y. 300, 305, 43 N. E. 859. "There is no doubt that as a general rule the store of the mer- chant, the shop of the mechanic or manufacturer, and the farm or granary of the farmer, at which the commodities sold are deposited or kept, is the place of delivery when the contract is silent as to the place.'' Bronson v. Gleason, 7 Barb. (N. Y.) 472, 475. To the same effect see Gross v. Ajello, 132 App. Div. 25, 116 N. Y. S. 380; Terry v. Wheeler, 25 N. Y. 520; Rice v. Churchill, 2 Den. (N. Y.) 145; Lob- dell V. Hopkins, S Cow. (N. Y.) 516; Halvordson v. Grossman, 107 N. Y. S. 627. Constructive Delivery. A verbal offer to deliver bulky goods such as lead is sufficient offer of performance to sustain an action for the refusal to take the lead. Pollen V. Le Roy, 30 N. Y. 549. Delivery of an order on a warehouse where goods are stored is sufficient delivery to allow a recovery of the purchase price. Gross v. Ajello, 132 App. Div. 25, 116 N. Y. S. 380. Tender of iron may be made by means of a permit by which the iron may be obtained. Dunham v. Pettee, 8 N. Y. 508. See also Wilkes V. Ferris, 5 Johns. (N. Y.) 335, 4 Am. Dec. 364. Where logs are pre- pared for delivery and the buyer notified, the seller has made sufficient 180 BOGERT'S NEW YORK SALES ACT. § 124. Place, Time and Manner of Delivery. tender, in view of the cumbersome nature of the goods. Bates v. Conkling, 10 Wend. (N. Y.) 389. Demand for Delivery Sometimes Necessary. Where the defendant agrees to deliver to the plaintiff 1000 tons of coal per month "'alongside within limits," but plaintiff was not bound to take the full monthly installments, but only to live up to the con- tract as nearly as possible, the contract was ''so indefinite as to the amount to be delivered and the place of delivery" that "defendant was under no obligation to tender delivery until demand was made upon him, or at least he was notified when, where, and how much to de- liver." Thedford v. Herbert, 135 App. Div. 174, 119 N. Y. S. 102S. Delivery Waived. Where a contract of sale requires the seller to deliver a locomotive f. o. b. at the seller's place of business, and the seller notifies the buyer that the railroad will not accept the locomotive for transportation, and the buyer states that he will negotiate with the railroad for trans- portation, the seller may, after waiting from December 5 until Janu- ary 22, maintain an action for the price of the goods. Mersereau v. L. K. Hirsch Co., 136 App. Div. 271, 121 N. Y. S. 11. * Time of Delivery. "There is no allegation in the complaint as to the time within which the contract was to be performed by delivery of the iron, and no time is mentioned in the written contract. The law supplies the omitted term, and the contract in legal effect was an engagement on the part of the plaintiffs to deliver within a reason- able time." Pope v. Terre Haute Car, etc., Co., 107 N. Y. 61, 65, 13 N. E. 592. See also Tobias v. Lissberger, 105 N. Y. 404, 410, 12 N. E. 13, 59 Am. Rep. 509; Eppens, etc., Co. v. Littlejohn, 164 N. Y. 187, 58 N. E. 19, 52 L.R.A. 811. Question of Fact or Law. "What is a reasonable time when the facts are undisputed and dif- ferent inferences cannot reasonably be drawn from the same facts, is a question of law." Wright v. Bank of Metropolis, 110 N. Y. 237, 249, 18 N. E. 79, 1 L.R.A. 289, 6 Am. St. Rep. 356. See also Colt V. Owens, 90 N. Y. 368. Ordinarily, of course, the question is one of fact. Computation of Time. "In general, the period of a month is construed to mean a lunar month, unless it is otherwise expressed; but in the case of bills of exchange, the mode of computing time is by calendar, and not lunar months." Leffingwell v. White, 1 Johns. Cas. (N. Y.) 99, 100, IW, 1 Am. Dec. 97. "The word 'until' is very frequently employed in a sense excluding the day named, and that is its more obvious mean- CONTRACTUAL OBLIGATIONS OF THE PARTIES. 181 § 124. Place, Time and Manner of Delivery. ing, though it must be conceded that a very slight matter in the con- text would be sufficient to give it a different and inclusive sense." People V. Walker, 17 N. Y. 502, 503. Where the defendant agreed to buy bonds "within one year from January 1st, 1909," the first day of January, 1910, is not excluded from the computation as to the time within which tender must be made, simply because it is a public holiday. Hendrickson v. Callan, 70 Misc. 342, 128 N. Y. S. 980. See sec. 20, Gen. Construction Law. "In computing the time mentioned in a contract for the doing of an act, intervening Sundays are to be counted; but when the day for performance falls on Sunday, it is not to be taken into the compu- tation." Salter v. Burt, 20 Wend. (N. if.) 205, 207, 32 Am. Dec. 530. See also Croninger v. Crocker, 62 N. Y. 151, 156. Defendants agreed to sell bonds to plaintiffs '"when, as and if issued." Held, that defendants were bound to tender the bonds as soon as a sufficient number had been issued to enable them with due diligence to obtain the contract amount, and that they could not wait until the entire issue was out. Zimmerman v. Timmerman, 193 N. Y. 486, 86 N. E. 540. For other cases upon the subject of time of delivery, see Currie V. White, 45 N. Y. 822; Tobias v. Lissberger, 105 N. Y. 404, 12 N. E. 13, 59 Am. Rep. 509; Morel v. Stearns, 43 Misc. 639, 88 N. Y. S. 416; Brown v. Bard, 64 Misc. 249, 118 N. Y. S. 371; Braitsch v. Kiel, etc., Co., 114 N. Y. S. 872. Necessity of Notice. Frequently the question of time of delivery is affected by the neces- sity of notice of readiness to deliver or notice of readiness to re- ceive. Where a custom of the trade shows that goods are not to be delivered until specifically ordered by the buyer, the seller may recover the price without proof of delivery or tender. Atkinson v. Truesdell, 127 N. Y. 230, 27 N. E. 844. Sometimes the buyer is under a duty to name the place of delivery. Hunter v. Wetsell, 84 N. Y. S49, 555, 38 Am. Rep. 544. Sometimes it is the seller's duty to notify the buyer that the goods are complete. E. W. Bliss Co. v. U. S. Incandescent Gas Light Co., 149 N. Y. 300, 305, 43 N. E. 859; Gross V. Ajello, 132 App. Div. 25, 116 N. Y. S. 380. For other cases on the subject of notice, see Cook v. Ferral, 13 Wend. (N. Y.) 285; Genesee College v. Dodge, 26 N. Y. 213, 214, 215. 3 Goods in Possession of Third Person at Time of Sale. "Where a vendor makes sale of personal property in the custody of a third person, who is his bailee, and gives a delivery order to the vendee, it has long been settled that this will not amount to a delivery so 182 BOGERT'S NEW YORK SALES ACT. § 124. Place, Time and Manner of Delivery. as to vest the title in the vendee, until the order is presented and such third person agrees to become the bailee of the purchaser, ex- pressly or impliedly." Edwards v. Meadows, 71 Ala. 42, 46. See also Buddie v. Green, 27 L. J. Exch. (Eng.) 33; Barney v. Brown, 2 Vt. 374, 377, 19 Am. Dec. 720; Spaulding v. Austin, 2 Vt. SSS. "Where the articles at the time of the sale or transfer are in the hands of one who has a lien upon them, notice to him of such sale or transfer is sufficient to constitute a delivery, as against subse- quent attaching creditors." Freiberg v. Steenbock, 54 Minn. 509, 513, 514, 56 N. W. 864. See also Hodges v. Hurd, 47 111. 363; Carter v. Willard, 19 Pick. (Mass.) 1; Dempsey v. Gardner, 127 Mass. 381, 34 Am, Rep. 389; Buhl Iron Works v. Teuton, 67 Mich. 623, 3S N. W. 804. A distinction is made between delivery sufficient to satisfy the sell- er's obligation to the buyer, and delivery sufficient to protect the buyer against creditors of the seller. * Seasonable Demand or Tender of Delivery. "The rule is that a tender of bulky articles in the performance .of an agreement must be seasonably made, so that the person may have an opportunity to examine the articles tendered, and see that they are such as they purport to be, and such as he is entitled to demand, before the close of the day on which the delivery is to be made. Whether the ten- der should be made before sunset may depend upon circumstances, and does not appear to have been decided by the courts of this state. But when daylight is required for the proper examination and as- sortment of the goods tendered, there can be but little doubt that time should be given the tenderee for such examination before sun- set and by daylight. The evidence is that wool can only be exam- ined and its quality ascertained by daylight, and that the inspection of the quantity contemplated by this contract would require more than one whole day. * * * The tender was insufficient as un- seasonably made." Croninger v. Crocker, 62 N. Y. 151, 158. Tender here was made late at night upon the last day. 5 Duty of Seller to Put Goods in Deliverable Condition. "The provision is declaratory of the law and seems to be a necessary conse- quence of the duty of the seller to deliver the goods bargained for." (Williston on Sales, p. 783). CONTRACTUAL OBLIGATIONS OF THE PARTIES, 183 § 125. Delivery of Wrong Quantity, § 125. DELIVERY OF WRONG QUANTITY. 1. Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may re- ject them, but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to per- form the contract in full, he must pay for them at con- tract rate. If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not going to perform his contract in full, the buyer shall not be liable for more than the fair value to him of the goods so received.^ 2. Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate.* 3. Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different de- scription not included in the contract, the buyer may ac- cept the goods which are in accordance with the con- tract and reject the rest, or he may reject the whole.' 4. The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties. Effect of Section. The section seems to be declaratory of the common law, except that it apparently abolishes the doctrine of Catlin v. Tobias, 26 N. Y. 217, 84 Am. Dec. 183, that a seller who has only partly performed cannot recover, even in quasi-contract. See note below. 184 BOGERT'S NEW YORK SALES ACT. § 125. Delivery of Wrong Quantity. English Act. Section 30 of the Sale of Goods Act has been closely followed in the modelling of this section. Where laths are to be shipped to the buyer and the contract provides that, should any dispute arise concerning the ques- tion whether the laths corresponded with the contract, the buyer should not reject them but submit the question to arbitrators; and laths are shipped which are either prac- tically worthless or very difficult of sale because of vari- ances from the contract requirements, the buyer may reject them. The provision for arbitration applies only to slight differences, and not to radical departures from the stipu- lation of the contract. Vigers v. Sanderson, [1901] 1 K. B. 608, 84 L. T. N. S. 464. For a case illustrating a trade custom that contracts calling for "about" a certain quantity should be satisfied by delivery of a quantity with- in five per cent of the amount named, see Societe Anonyme, etc. V. Scholefield, 7 Com. Cas. 114. Where a buyer con- tracts to buy all the acid required in a manufacturing plant and the business is abandoned and the factory not operated, the buyer is under no obligation to take any acid. Berk V. International Explosives Co., 7 Com. Cas. 20. A recent English case construing the corresponding sec- tion of the English Act is referred to in the New York Law Journal for April 10, 1912. The case is Shipton v. Braltress, decided by Lush, J., on Feb. 22, 1912, and re- ported thus far only in The Solicitor's Journal & Weekly Reporter (London) for March 23, 1912 (vol. 56, p. 375). In that case the seller contracted to deliver a cargo of wheat, "weight as per bill or bills of lading, say 4,500 tons, two per cent., more or less; seller has the option of ship- ping a further 8 per cent., more or less, on contract quan- tity." The seller tendered 4,950 tons and 55 pounds, 4,950 CONTRACTUAL OBLIGATIONS OF THE PARTIES. 185 § 125. Delivery of Wrong Quantity. tons being the maximum which the sellers were entitled to deliver under the contract. The buyer rejected the goods on the ground that the amount tendered was in excess of the contract quantity. The seller then brought this action to recover damages for the non-acceptance of the cargo. Recovery was allowed. The court held that the excess ten- dered was too trifling to amount to a breach of the con- tract by the seller. The following is a quotation from the London periodical mentioned : "The learned judge gives as the reason why an excess in tender entitles a buyer to reject that the seller seeks to impose a burden on the buyer which he is not entitled to impose. That reason cannot exist where there is nothing to suggest that the sellers would ever have insisted or thought of insisting on the payment of the trifling sum which represented the excess over the contract price." 1 Delivery of Quantity Smaller Than Contract Amount. "The contract being entire, unless all the lumber had been manufactured and delivered at the place specified in the agreement before the expiration of the time fixed, the defendant was not bound to accept any of the lumber nor to pay for any quantity short of the entire amount con- tracted for." Hilton, etc.. Lumber Co. v. Sizer, 137 App. Div. 661, 663, 122 N. Y. S. 306. Accord, Corning v. Colt, 5 Wend. (N. Y.) 253; Brown v. Norton, SO Hun 248, 2 N. Y. S. 869. Thus the right to reject an insufficient quantity was clear at common law. Buyer's Liability for Part Delivered. But often the insufficient quantity was accepted and used by the buyer, either with or without knowledge that no more goods would be delivered. The New York doctrine upon that subject was peculiar. A leading case is Catlin v. Tobias, 26 N. Y. 217, 84 Am. Dec. 183, in which case the contract called for the delivery of bottles during April, May and June. The seller delivered part of the amount due in April and then failed to deliver the balance. In an action to recover for the portion delivered, it was held that there could be no recovery, either in contract or in quasi-contract. The court said : "The contract was entire and called for an entire peformance, and 186 BOGERT'S NEW YORK SALES ACT. § 125. Delivery of Wrong Quantity. until such peformance was made or tendered there was no liability on the part of the defendant. * * * -pjjg i(jea of an equitable right of recovery in such cases, which was discountenanced by the Chan- cellor in his opinion there [that is, in Champlin v. Rowley, 18 Wend. 187], has found no more favor in the courts of this state subsequent- jy * * * -pije defendant was not bound to retain the articles de- livered to him under the contract in the course of the month of April or of any other month included within its limits, without using or disposing of them until the contract, or even the month had expired, to ascertain whether the vendors would perform their agreement He made his contract to obtain the articles which he was to buy for immediate and constant use, and no one could have demanded or expected that he would not use them as they were required in his business. But if he did not waive the performance of the contract, he had a right to insist upon its performance as an entirety, and when the vendors, without cause or excuse, refused to perform it, he was not bound to return what he had received, nor could he be com- pelled to pay for a part performance." (p. 222). For other exposi- tions of this doctrine, see Bruce v. Pearson, 3 Johns. (N. Y.) 534; Champlin v. Rowley, 13 Wend. (N. Y.) 258, 18 Wend. (N. Y.) 187; Mead v. Degolyer, 16 Wend. (N. Y.) 632; Hill v. Heller, 27 Hun (N. Y.) 116; Smith v. Brady, 17 N. Y. 173, 72 Am. Dec. 442; Baker V. Higgins, 21 N. Y. 397; Kein v. Tupper, 52 N. Y. 550; Nightingale v. Eiseman, 121 N. Y. 288, 24 N. E. 475. Waiver. But it was held at common law that the buyer might waive the full performance if there was any evidence of an intent to make a new contract to accept and pay for a part of the contract amount. Avery v. Willson, 81 N. Y. 341, 37 Am. Rep. 503 ; Brady v. Cassidy, 145 N. Y. 171, 39 N. E. 814. The Sales Act provides that where the buyer accepts part of the goods without knowledge that the balance will not be delivered, he ^'shall not be liable for more than the fair value to him of the goods so received." Apparently the intent is to make him liable for the fair value, although it is not affirmatively so stated. If the act be con- strued to give a quasi-contract liability under such circumstances, a radical and important change in the law of Sales in New York will have been wrought. * Delivery of Too Large an Amount. Downer v. Thompson, 6 Hill (N. Y.) 208, was an action to recover the price of 250 barrels of cement. The seller delivered 260 barrels and the buyer objected to the delivery on the ground of quality, not of quantity. Held, that a nonsuit was improper. The question should have been submitted to CONTRx\CTUAL OBLIGATIONS OF THE PARTIES. 187 § 125. Delivery of Wrong Quantity. the jury, whether the delivery of the 260 barrels was as a mere com- pliance with the order, or with the intention of charging the defend- ants with the excess. "If the plaintiff forwarded the two hundred and sixty barrels as and for two hundred and fifty barrels, in order that no dissatisfaction might exist as to the quantity, or for any order, the defendant was not bound either to make a selection of two hundred and fifty barrels; and whether he did so, was a proper question for the jury to decide. On the other hand, if the two hun- dred and sixty barrels were not sent as a mere compliance with the order, the defendant was not bound either to make a selection of two hundred and fifty barrels out of the larger number, or to take the extra ten barrels and pay for them; and should a jury find that such was the fact, aS the sale would then be incomplete as well for two hundred and fifty as for two hundred and sixty barrels, the defendant would be entitled to their verdict." (p. 214). See also Rommel v. Wingate, 103 Mass. 327; Lamb v. Traitel, 12 Misc. 140, 32 N. Y. S. 1075; Drucklieb v. Universal Tobacco Co., 106 App. Div. 470, 94 N. Y. S. m . Subdivision 2 is thus apparently declaratory of the com- mon law. 3 Delivery of Contract Goods Mixed With Others. "A tender of a larger bulk, from which the plaintiff might with great labor have selected the quantity, and of the quality they had purchased, was an insufficient tender, and a refusal to perform the contract except by delivery of the wool in bulk, the good and bad mingled together, re- quiring labor to separate them, was a breach of the agreement, sub- jecting the defendants to an action for damages, and for the recovery of the money paid or advanced upon it." Croninger v. Crocker, 62 N. Y. 151, 157. Tender of goods called for by the contract mixed with goods the delivery of' which is past due, is not a valid tender. The buyer is not bound to sort out the goods which are delivered in time, but may reject the whole lot. Braitsch v. Kiel, etc., Co., 114 N. Y. S. 872. See also Clark v. Baker, 11 Met. (Mass.) 186, 45 Am. Dec. 199; Flint v. Standard Rope, etc., Co., 52 App. Div. 459, 65 N. Y. S. 238; Hoffman v. King, 58 Wis. 314, 17 N. W. 136. What Is the Contract Am-ount? Questions frequently arise concerning the amount of goods called for by the contract. What is the right quantity to tender? The rules applied in the interpretation of contracts calling for "about" a certain quantity, or a certain quantity "more or less,'' are consid- ered in Brawley v. U. S., 96 U. S. 168, 24 U. S. (L. ed.) 622. An agreement to deliver a cargo of iron to arrive by a certain ship, of about 300 or 350 tons, is performed by delivery of the entire cargo, 188 BOGERT'S NEW YORK SALES ACT. § 125. Delivery of Wrong Quantity. though it be only 227 tons. Pembroke Iron Co. v. Parsons, S Gray (Mass.) S89. But see Flanagan v. Demarest, 3 Robt. (N. Y.) 173. A contract to deliver all the goods which a buyer may "require at my two jobs" means all the goods necessary to complete the work, and not all that the buyer might ask to have delivered. Miller v. Leo, 35 App. Div. 589, 55 N. Y. S. 165, affirmed 165 N. Y. 619, 59 N. E. 1126. See also East v. Cayuga Lake Ice Line, 66 Hun 636 mem., 21 N. Y. S. 887; Wells v. Alexandre, 130 N. Y. 642, 29 N. E. 142, IS i..R.A. 218. For instances of contracts where one party is obligated to take a certain amount and has an option to take more, see Ready v. J. L. Fulton Co., 179 N. Y. 399, 72 N. E. 317; A. B. Farquhar Co. v. New River Mineral Co., 87 App. Div. 329, 84 N. Y. S. 802. A contract for the delivery of "number 1 hay," with a provision for fixing the price to be paid for inferior hay if such be delivered, contemplates that the great mass of the hay delivered shall be "num- ber 1 hay," and a delivery of hay, more than half of which is not of th;<{ kind is not a performance of the obligation to deliver. Bloom- ingdale v. Hewitt, 40 App. Div. 208, 58 N. Y. S. 9, affirmed 170 N. Y. 568, 62 N. E. 1094. Where an offer to sell leaves doubtful the amount of goods which the seller is willing to sell at the price named, the buyer cannot make a contract by accepting the proposition. Schenectady Stove Co. v. Holbrook, 101 N. Y. 45, 4 N. E. 4. CONTRACTUAL OBLIGATIONS OF THE PARTIES, 189 § 126. Delivery in Installments. § 126. DELIVERY IN INSTALLMENTS. 1. Un- less otherwise agreed, the buyer of goods is not bound to accept delivery thereof by installments. 2. Where there is a contract to sell goods to be deliv- ered by stated installments, which are to be separately paid for, and the seller makes defective deliveries in re- spect of one or more installments, or the buyer neglects or refuses to take delivery of or pay for one or more installments, it depends in each case on the terms of the contract and the circumstances of the case whether the breach of contract is so material as to justify the injured party in refusing tO' proceed further and suing for dam- ages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensa- tion, but not to a right to treat the whole contract as broken.* Effect of Section. The section is probably declaratory of the common law, although the New York courts seem to have regarded the breaches named in sub-section 2 as always material and therefore always constituting a breach of the entire contract. See note below. English Act. Section 31 of the Sale of Goods Act is the model for this section, but the English section differs materially in making intention to repudiate instead of ma- teriality of breach the basis of granting the right to the injured party to refuse to proceed with the contract. Where the seller contracts to deliver 1100 pieces of timber in two installments, and the first delivery is found by an arbi- trator to have been so defective as to constitute a breach 190 BOGERT'S NEW YORK SALES ACT. § 126. Delivery in Installments. of the contract warranting repudiation by the buyer, the award will not be set aside as bad on its face. Whether the breach be partial or one allowing repudiation is a ques- tion of fact in each case. Millar's Karri, etc., Co. v. Wed- del, 100 L. T. N. S. 128. By a contract for the sale of steel tinplate bars to be delivered over a period of three months, payment to be made in cash in fourteen days after delivery, it was provided that all payments should be made on due date as a condition precedent to future deliveries. The purchasers having made default in payment on due date, held that the vendors were justified in unconditionally refusing to make any further deliveries. Ebbw Vale Steel, etc., Co. V. Blaina Iron Co., 6 Com. Cas. 33. 1 Delivery in Installments. "This section is slightly altered from section 31 of the English Act. The English Act, following prior English decisions, makes repudiation by one party the test of the right of the other to refuse to go on. The section here given makes the materiality of the breach the test. This is in accord with the weight of American authority. Norrington v. Wright, 115 U. S. 188; 14 Harv. L. Rev. 323." (Note of Commissioners on Uniform State Laws, American Uniform Commercial Acts, p. 98). New York Rule. "In a contract for the sale of goods to be delivered in installments, a failure of the seller to deliver, or of the buyer to accept, one in- stallment constitutes such a breach of the contract as will give the party not in default the right to rescind the entire contract." Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118, 124, 125, 88 N. E. 24, 21 L.R.A. (N.S.) 864. "It is also settled in this state that where goods are to be delivered in installments under an executory contract, an acceptance of certain installments thereunder does not prevent a rescission of the contract in case of failure thereafter to perform in accordance with the terms of such contract." Idem, 195 N. Y. 125. But in this case there was a waiver of the right to insist on full per- formance. For other cases in which failure to deliver or ship within the required time has been considered a breach of the whole contract, see Norrmgton v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 U. S. (L. ed.) 366; Pope v. Porter, 102 N. Y. 366, 7 N. E. 304. CONTRACTUAL OBLIGATIONS OF THE PARTIES. 191 § 126. Delivery in Installments. Default in Installment Payment. The failure of the buyer to pay an installment of the price has also been held to constitute a breach of the entire contract justifying repudiation by the seller. Gardner v. Clark, 21 N. Y. 399; Kokomo Strawboard Co. v. Inman, 134 N. Y. 92, 31 N. E. 248; Nichols v. Scranton Steel Co., 137 N. Y. 471, 33 N. E. 561; Raabe v. Squier, 148 N. Y. 81, 42 N. E. 516; Price v. New York, 104 App. Div. 198, 93 N. Y. S. 967; American Broom, etc., Co. v. Addickes, 19 Misc. 36, 42 N. Y. S. 871 ; Barnes v. Denslow, 56 Hun 640, 9 N. Y. S. 53. Default in Acceptance. The refusal of the buyer to accept one installment is a breach of the entire contract which entitles the vendor to rescind. Ganser v. Weber, 35 Misc. 303, 71 N. Y. S. 773. Installment Deficient in Quality. But apparently if the seller delivers one installment inferior in quality and not in quantity, there is not such a breach of the con- tract as to justify the buyer in repudiating the entire contract. Cahen v. Piatt, 69 N. Y. 348, 25 Am. Rep. 203. Illustrative Cases. In Tipton v. Feitner, 20 N. Y. 423, it was held that a contract to deliver hogs and dressed pork was a divisible contract and that the seller could recover for the delivery of the pork, although he had failed to deliver the hogs. Where goods are sold to be paid for in installments, the title to remain in the seller until full payment, the seller cannot sue for the full price until default in making the last payment. He then has the option of suing for the full price or of replevying the goods. Taylor v. Esselstyn, 62 Misc. 633, 115 N. Y. S. 1105. Where the buyer orders twelve gross of goods to be delivered one gross a month, and the seller never accepts the offer, but delivers a number of installments, the buyer is not obligated to take all the goods tendered, but may refuse to receive any installment. The seller failed to accept the offer and can recover only for the goods actually received and accepted. Auto Spring Repairer Co. v. Mutual Auto Accessories Co., 72 Misc. 402, 130 N. Y. S. 140. 192 BOGERT'S NEW YORK SALES ACT. § 127. Delivery to a Carrier. § 127. DELIVERY TO A CARRIER ON BE- HALF OF THE BUYER. 1. Where, in pursuance of a contract to sell or a sale, the seller is authorized or re- quired to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is deemed to be a delivery of the goods to the buyer, except in the cases provided for in section one hundred, rule five, or unless a contrary intent appears.* 2. Unless otherwise authorized by the buyer, the sell- er must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to him- self, or may hold the seller responsible in damages. 3. Unless otherwise agreed, where goods are sent by the seller to the buyer under circumstances in which the seller knows or ought to know that it is usual to insure, the seller must give such notice to the buyer as may en- able him to insure them during their transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such transit. Effect of Section. The section is declaratory of the common law, unless the words "whether named by the buyer or not"' in subsection 1 have made a slight change. See note below. English Act. Section 32 of the Sale of Goods Act is CONTRACTUAL OBLIGATIONS OF THE PARTIES. 193 § 127. Delivery to a Carrier. the equivalent of this section in substance. In Harland v. Burstall, 84 L. T. N. S. 324, it was held that delivery of 470 instead of 500 loads of timber to a carrier did not constitute performance of the contract and, the timber hav- ing been lost in transit, the buyer was allowed to sue the seller for breach of the contract. 1 Delivery to a Carrier on Behalf of the Buyer. Delivery may be viewed from two points of view, — the passing of the property in the goods, and the performance of the seller's obligation under the con- tract. The question of the effect of delivery to a carrier upon the title in the goods has been considered under section 100, ante, and reference is here made to the cases there cited, since the questions involved are very similar. "And when the delivery of the property is to be made by its ship- ment, delivery on board the vessel, as directed by the purchaser, will, in judgment of law, operate as a delivery to him or them." Gut- willig V. Zuberbier, 41 Hun 361, 363, 2 N. Y. St. Rep. 60S. As ex- pressing the doctrine of sub-section 1, see also Krulder v. Ellison, 47 N. Y. 36, 7 Am. Rep. 402; Neumeyer v. Hooker, 131 App. Div. 592, 116 N. Y. S. 204, affirmed 199 N. Y. S91, 93 N. E. 1126; Money- weight Scale Co. v. Loewenstein, 103 N. Y. S. 80; White v. Schweit- zer, 147 App. Div. 544. Truckman. But delivery to a truckman in the hire of the seller is not delivery to the buyer. Grey v. Cary, 9 Daly (N. Y.) 363. Nor does the sec- tion apply where the seller agrees to deliver at the buyer's place of residence. Edward Thompson Co. v. Vacheron, 69 Misc. 83, 125 N. Y. S. 939. Delivery Excused. Delivery to a carrier is excused where the carrier refuses to accept the goods for shipment and the buyer, on being informed of such refusal, states that he will make arrangements for shipment but de- lays unreasonably in doing so. Mersereau v. L. K. Hirsch Co., 136 App. Div. 271, 121 N. Y. S. 11. Right Quantity. Delivery to a carrier must be of the right quantity, in order to fulfill the seller's obligation. Bruce v. Pearson, 3 Johns. (N. Y.) 534. Carrier Specified. Where the buyer directs that the goods be shipped by a particular Bogeit's Sales — 13. 194 BOGERT'S NEW YORK SALES ACT. § 127. Delivery to a Carrier. carrier, the seller does not perform his contract by delivery to an- other carrier. lasigi v. Rosenstein, 65 Hun 591, 20 N. Y. S. 491, reversed on another point in 141 N. Y. 414, 36 N. E. 509. See also Corning v. Colt, 5 Wend. (N. Y.) 253; Hills v. Lynch, 3 Robt. (N. Y.) 42. Apparently the Sales Act would allow performance of the contract by delivery to any carrier, even if the buyer had expressly prescribed the carrier to be used. If the words "'whether named by the buyer or not" are given that meaning, they will result in a change of the common law. It is possible that they may be held to mean that delivery to a carrier is sufficient even though the buyer has not expressly made such carrier his agent, that is, has named no carrier at all. Fitness for Transportation. The seller does not fulfill his obligation to the buyer by mere de- livery to the carrier, but must deliver the goods in condition fit for transportation. Wilson v. Western Fruit Co., 11 Ind. 89; Dickey v. Grant, 6 Cow. (N. Y.) 310; Gutwillig v. Zuberbier, 41 Hun 361, 2 N. Y. St. Rep. 605. "These paragraphs follow with slight changes section 32 of the English Act. (1) is familiar law. (2) and (3) are probably in ac- cordance with the business usage, but there is little in the way of positive law on the subject. See Chalmers (5th ed.) p. 73." (Note of Commissioners on Uniform State Laws, American Uniform Com- mercial Acts, p. 99). CONTRACTUAL OBLIGATIONS OF THE PARTIES. 195 § 128. Right to Examine Goods. § 128. RIGHT TO EXAMINE THE GOODS. 1. Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity to examine them for the purpose of ascer- taining whether they are in conformity with the con- tract.^ 2. Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examin- ing the goods for the purpose of ascertaining whether they are in conformity with the contract.* 3. Where goods are delivered to a carrier by the sell- er, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words "collect on delivery," or other- wise, the buyer is not entitled to examine the goods be- fore pasmient of the price in the absence of agreement permitting such examination.' Effect of Section. The section is declaratory, except possibly as to the matters covered by sub-section 3, upon which the law seems not to be well settled. See note below. English Act. The section is copied from section 34 of the Sale of Goods Act, except that sub-section 3 is not in the English act. 1 No Acceptance Until Opportunity to Inspect. The doctrine of sub-section 1 is supported by Pope