Opinion
May 2, 1917.
Lynch Clifford [ F.W. Clifford of counsel], for the appellant.
Frederick E. Hawkes, for the respondent.
The contract was executory and title to the property had not vested in the plaintiff. Although the contract uses the words "party of first part agrees to and by this contract does purchase of party of second part," that language does not necessarily import an executed contract but must be construed in connection with the rest of the contract taken as a whole and such construction placed thereon as is required by the entire instrument. ( Anderson v. Read, 106 N.Y. 333, 344.)
In Empire State Type Founding Company v. Grant ( 114 N.Y. 40) it was said: "It is too well settled to require the citation of authority, that where a sale of personal 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."
In Schryer v. Fenton ( 15 App. Div. 158) it was stated by this court: "It is a familiar doctrine that where, on a sale of personal property, it is agreed that payment therefor shall accompany or precede delivery, the title does not pass until the payment is made."
We think it is entirely obvious from the contract in question that payment and delivery were intended to be concurrent acts. The underlying feature of the contract is that the defendant was to retain possession until paid. It is expressly provided that the sale by the plaintiff, to be public, was to be conducted in the store of the defendant, and the proceeds of each day's sale were to be received each day by the defendant until he had received the full amount of the purchase price due him. Clearly the plaintiff could not conduct the sales to the public elsewhere or remove the property from the store of the defendant for any purpose whatever until he had paid the defendant the full amount due him under his contract of sale. The defendant agreed to give his services without charge until he was fully paid. This provision was in part at least to enable him to have supervision of the property and of the sales thereof to the public and of the proceeds of such sales with a view to enabling him to more certainly secure and procure the amount due him. The contract contained a provision that the defendant would "give possession of store," but by this it was intended merely that the plaintiff should have the use thereof without charge because it had already been provided that the sale to the public was to be held "in the store of second party at 304 Broad St." The emphatic idea is contained in the word "give."
Where the intent of the parties does not clearly appear from the agreement it becomes a question of fact for the jury. ( Empire State Type Founding Company v. Grant, 114 N.Y. 40, 44; Bradley v. Wheeler, 44 id. 495, 501.) But in the present case the intent that delivery and payment should be concurrent clearly appears from the instrument itself. For no other purpose was it provided that the plaintiff should resell the merchandise in the store of the defendant and that the latter should be at liberty to participate in such sale and should have the proceeds thereof from day to day. That feature of the contract unmistakably indicates that the plaintiff could not have the delivery of the property until he paid for it.
The fact that the plaintiff was to resell the property to third parties is not inconsistent with the retention of title in the defendant. He was really making those sales under the direction of and for the defendant until the latter was paid. Fennikoh v. Gunn ( 59 App. Div. 132) is a case somewhat similar to this where the purchaser of a stock of groceries retailed the same to the public until his vendor received from the proceeds of the sale the amount of his contract price. The agreement in that case provided for a bill of sale when the purchase price was fully paid to the vendor. That provision, however, only expressed what in this case is clearly and just as unequivocally implied, that title should not pass until payment in full.
Nor did the plaintiff have such possession as enables him to maintain this action. From what has already been said it appears that there was no delivery of the property and no intention to deliver the same until the purchase price was paid the defendant. The property remained in his store subject to his control and direction except that it was the duty of the plaintiff to retail the same, but the defendant at all times had access to the property with a right to know what was being done with reference to the same and with a right to the proceeds of each day's sales. Delivery of a key is sometimes symbolic of delivery of possession provided it is so intended but not necessarily so. In the present case the plaintiff's representative had a key to the store but that meant no more than possession of a key by a clerk of a merchant. The rights of the parties rested in contract and the cause of action for conversion was not established.
The judgment should be affirmed, with costs.
All concurred, except KELLOGG, P.J., who dissented with opinion, in which WOODWARD, J., concurred.
It is immaterial who had the legal title to the goods. Each party had an interest in them as they were in the store, and neither had a right to remove them without the consent of the other.
The defendant, having received the entire purchase price except $650, forcibly put the plaintiff out of the store and with force removed the goods therefrom to a place or places unknown to the plaintiff. The goods so removed inventoried $2,400. Clearly this was a wrongful taking from the plaintiff of property in which he was interested, and deprived him of his beneficial interest therein and made the defendant liable for conversion unless he could justify the removal. The decision of the case depends upon the facts to be found by the jury. I, therefore, favor reversal.
WOODWARD, J., concurred.
Judgment affirmed, with costs.