Gray v. . Walton

Andrews, J. 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. (2 Kent’s Com. 677; Benj. on Sales, 555.) The obligation, however, may be limited, or qualified, or altogether excluded by the terms of the contract. The terms of. the auction sale in this case did not relieve the defendant from the obligation to deliver the property purchased by the plaintiff, except in the contingency that the purchaser failed to complete the purchase by paying for and removing the property from the St. James Hotel before the first of May. Up to that time the defendant, on payment being made, was bound to deliver the goods, on the premises, when called for by the plaintiff. The omission of the plaintiff to pay for the goods, or to call for or remove them before the first of May, released the defendant from any further responsibility, and the goods remained on the premises after that time at the risk of the plaintiff, unless the delay was attributable to the act of the defendant, or unless the defendant waived the condition as to payment and removal. Upon the facts found we "think the plaintiff was excused, and that the delay in paying for the goods until the second of May was occasioned by the neglect and default of the defendant to correct the bill of items in time to enable the plaintiff to comply with the terms of sale. The jury have found that the two washing machines, which were charged, in the bill at $100, were struck off for fifty dollars. The plaintiff repeatedly called upon the auctioneer before the first óf May, to correct *259 the bill, and expressed his readiness to pay the true amount, but was put off from day to day until the second of Hay, when the controversy was settled and the plaintiff paid the bill to the auctioneer, who paid over the money to the defendant. The delay having been caused by the act of the defendant in demanding a greater sum than he was entitled to receive, he cannot in justice be permitted to insist that -the omission of the plaintiff to pay for and receive the goods before the first of May, discharged him from the obligation to make delivery. The limitation in the contract was inserted for his protection as he was to vacate the premises on the first of May, but it was connected with the correlative right of the purchaser to entitle himself by payment to call upon the defendant for the goods and to receive them before the expiration of the' period mentioned. It is not, we think, an answer to the claim of the plaintiff that he might have tendered the true amount and thus have entitled himself to a delivery before the first of May. He was not bound to take this course. Having offered to comply with the terms of sale, he was not in default, and the defendant having on the second of May accepted payment, he was, we think, under obligation to deliver the goods on the premises, or, at least, to put them within the power, or under the dominion of the plaintiff, notwithstahding the expiration of the period for removal fixed by the contract. (See Story On Sales, § 310, and cases cited.) The sale, although comprising distinct articles purchased on separate bids, was treated by the parties as one transaction, and the separate sales as parts of an entire contract. (Mills v. Hunt, 17 Wend. 333; S. C., 20 id. 431.) The charge as to the rule of damages was correct. The plaintiff was entitled to recover the value of the goods on the second of May, if entitled to recover at all, and the charge that the jury in determining the value, might consider the price the goods brought on the sale, and the.refusal to charge that the recovery was limited to the purchase-price or that the purchase-price was strong evidence of the value, was proper. (Campbell v. Woodworth, 20 N. Y. 499; Gill v. McNamee, 42 id. 44, 46; Hoffman v. Conner, 76 id. 121, 124.) In *260 view of our disposition of the main questions, the exceptions on other points do not call for special consideration. The judgment should be affirmed. All" concur, except Huger, Ch. J., not voting. Judgment affirmed.