Imperial Products Co. v. Capitol Chemical Co.

Page, J.: Four conditions must exist to bring a case within subdivision 3 of section 128 of the Personal Property Law (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], as added by Laws of 1911, chap. 571). (1) Goods must be delivered to a carrier; (2) with instructions that the carrier is not to deliver the goods to the buyer until paid for; (3) this must have been done pursuant to an agreement between the buyer and seller; (4) such an arrangement may be indicated .by the marking of the goods “ collect on delivery ” or otherwise. In my opinion, this subdivision does not apply to every shipment by a carrier, but only to such shipments when the terms of the contract of sale provide that the carrier shall collect on delivery. The controlling element is the agreement of the parties, and not the method of shipment by the seller. In this case there was no agreement that the shipment should be made “ collect on delivery,” nor was there any agreement that the buyer would pay the purchase price by sight draft to be attached to the bill of lading. No, terms of payment were specified in the agreement between the parties. Under such a contract, delivery and payment are concurrent obligations. (Pers. Prop. Law, § 123, as added by Laws of 1911, chap. 571.) This is very different from payment of the purchase price by sight draft with bill of lading attached. In the first, the buyer has the right of inspection to ascertain whether the goods are in conformity with the contract, when the seller tenders delivery, before he is required to accept and pay for the goods. In the latter, payment is a condition precedent to delivery and hence incon 601 sistent with the right of inspection. (Plumb v. Hallauer & Sons Co., 145 App. Div. 20; Pers. Prop. Law, § 128, subd. 2, as added by Laws of 1911, chap. 571.) Inasmuch as there was no provision in the agreement between the parties inconsistent with the right of inspection before acceptance and payment^ the seller could not deprive the buyer of that ■ right by adopting a method of collection not provided in the agreement. (Williston Sales, 840.) In my opinion the judgment of the City Court was right, and the determination of the Appellate Term should be reversed, with costs in this court and the Appellate Term, and the judgment of the City Court affirmed. Smith and Shearn, JJ., concurred; Clarke, P. J., and Dowling, J., dissented.