On the 24th of August, 1860, J. S. & W. Brown, of the city of New York, executed an agreement with the plaintiff to sell him 100,000 pounds of hops, as follows:

"In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, we have sold this day to Mr. John F. Dustan, of this city, 100,000 pounds of first sort western or eastern hops, as we may select; growth of 1860; deliverable in the city of New York, at our option, during the months of October or November, 1860, at seventeen cents per pound, subject to Mr. J. S. Brown's inspection, or other mutually satisfactory. Terms, cash on delivery. Mr. Dustan's name to be made satisfactory either by indorsement or by a deposit of $2,500 by both parties. J. S. & W. Brown."

On the 7th of September the plaintiff sold this contract to the defendants, by an instrument of which the following is a copy:

"In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, I have this day sold to McAndrew & Wann the contract of J. S. & W. Brown, dated 24th August, 1860, for 100,000 pounds first sort hops, western or eastern, growth of 1860; upon condition that the said McAndrew & Wann fulfill the conditions of said contract to the said J. S. & W. Brown, and pay to me, in addition, on delivery of the hops, ten and one-half cents per pound.

"John F. Dustan.

"New York, September 7, 1860." On the 28th day of November, J. S. & W. Brown notified the plaintiff by letter, that they would deliver the hops pursuant to contract on the 30th of that month; and plaintiff immediately, on the same day, notified the defendants of that fact, inclosing to them the letter of J. S. & W. Brown; and on the same day the said J. S. & W. Brown wrote a similar letter to the defendants. These notices actually came to the hands of the defendants on the morning of the 30th. Prior to November 30, John S. Brown had inspected the hops, and put his brand upon them, and certified that they were such hops as the contract called for. On the 30th of November, J. S. & W. Brown were ready and willing to deliver the hops, and the defendants were requested to take them, and they declined on the sole ground, as they claimed, that they had not had an opportunity to examine them and inspect their quality, and because Messrs. Brown had refused to let an inspector, whom they sent, inspect the hops.

On the 24th of December the plaintiff took the hops from Messrs. Brown and paid for them, and on the same day wrote the following letter to defendants:

"New York, December 24th, 1860. "Messrs. McAndrew & Wann-Gentlemen: The 100,000 pounds hops mentioned in contract of J. S. & W. Brown with me, of 24th

August, 1860, and in contract of yourselves with me of 7th September, 1860, are now at the store No. 4 Bridge street, awaiting the fulfillment by you of the terms of your contract, and I hereby tender to you the said hops, and demand from you the payment of the sum of $27,500, the amount of such contract price. Unless you comply with the terms of said contract, on or before the 26th day of December, instant, I will proceed to sell the same on your account and hold you for any deficiency.

"Your obedient servant, John F. Dustan.” · Defendants still declined to take the hops, and then on the 26th day of December plaintiff placed them in the hands of a hop broker, who sold them for twenty cents per pound, which sale was conceded on the trial by the defendants, to have been fairly made.

This suit was commenced for the breach of the contract to the part of the defendants, in not taking the hops according to contract. It was tried in the Superior Court of New York, before the court and a jury. On the trial the foregoing facts appeared, and the plaintiff also gave evidence tending to show, that on the 30th day of November, and on the 26th day of December, twenty cents per pound was the fair market value of the hops; and the defendant gave evidence tending to show, that on both of these days the market value was some cents higher.

There was also evidence showing that hops had a downward tendency in market all through the month of December. It was shown, also, and not disputed, that the hops in all respects answered the contract.

After the evidence was closed the presiding judge stated, that it was his opinion that there was no question for the jury, and that the plaintiff was entitled to recover the difference between the contract price and the price he obtained on the resale.

The counsel for defendants requested the court to submit the facts to the jury, and to charge the jury in such form as to raise the questions discussed in the following opinion, and to the refusal of the court, defendant's counsel excepted.

The jury, under the direction of the court, rendered a verdict in favor of plaintiff for $8,130. The court directed the exceptions to be heard in the first instance at the General Term; and the General Term having denied a new trial, and ordered judgment for plaintiff, the defendants appealed to this court.

EARL, C.31

* *

By the purchase of the contract the defendants were substituted, as to its performance, in the place of the vendee therein named, and were bound to do all that he had agreed to do or was bound in law to do. When notified that the hops were ready for delivery they declined to take them, upon the sole ground that they

31 Part of the opinion is omitted.

had not had an opportunity to examine or inspect them; and they claimed that they had sent one Smith to inspect them, and that he had been declined permission to inspect them. There was no proof however that they ever tried to examine or inspect the hops, or that the vendors ever refused to permit them to examine or inspect them. They sent Smith to inspect them, and he went to one of the several storehouses where some of the hops were stored, and he says he was there refused an opportunity to inspect them by Mr. A. A. Brown. But there is no proof that he was in any way connected with the vendor, or that he had any agency or authority whatever from them. There was no proof that defendants ever tried with the vendors to agree upon any other inspector, or that they ever asked the vendors to have the hops inspected by any other inspector, and they made no complaint at any time that they were inspected without notice to them. The point that they should have had notice of the inspection was not taken in the motion for a nonsuit, nor in any of the requests to the court to charge the jury. If the point had been taken in the answer or on the trial, the plaintiff might perhaps have shown that notice was given by the vendors, or that it was waived.

Hence we must hold, upon the case as presented to us, that there was no default on the part of the plaintiff or the vendors, and that the defendants were in default in not taking and paying for the hops. The only other question to be considered is, whether the court erred in the rule of damages adopted in ordering the verdict.

The court decided that the plaintiff was entitled to recover the difference between the contract price and the price obtained by the plaintiff upon the resale of the hops, and refused, upon the request of the defendants, to submit to the jury the question as to the market value of the hops on or about the 30th day of November.

The vendor of personal property in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three methods to indemnify himself. (1) He may store or retain the property for the vendee, and sue him for the entire purchase-price; (2) He may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; or (3) He may keep the property as his own, and recover the difference between the market price at the time and place of delivery and the contract price. 2 Pars. Cont. 484; Sedgw. Dam. 282; Lewis v. Greider, 49 Barb. 606; Pollen v. Le Roy, 30 N. Y. 549. In this case the plaintiff chose and the court applied the second rule above mentioned. In such case the vendor is treated as the agent of the vendee to make the sale, and all that is required of him is that he should act with reasonable care and diligence, and in good faith. He should make the sale without unnecessary delay, but he must be the judge as to the time and place of sale, provided he act in good faith and with reasonable care and diligence. Here it is conceded that the sale was fairly made; it was

made in the city of New York, in less than one month from the time the defendants refused to take the hops. It was not claimed on the trial that the delay was unreasonable, and we can find nothing in the case to authorize us to hold that it was unjustifiable. We are therefore of the opinion that the court did not err as to the rule of damages. The judgment should therefore be affirmed, with costs.

For affirmance: LOTT, C. C.; EARL and HUNT, CC. GRAY, C., was for reversal, on the ground that the delay in selling was too great. LEONARD, C., did not vote.

Judgment affirmed, with costs.32

ACKERMAN v. RUBENS.

(Court of Appeals of New York, 1901. 167 N. Y. 405, 60 N. E. 750, 53 L. R. A. 867, 82 Am. St. Rep. 728.)

On the 28th of July, 1897, at the city of New York, the plaintiff sold his yacht Iola to the defendant for the sum of $2,250, by an executory contract which impliedly provided that the title should not pass until the purchase price should have been fully paid. The defendant refused to complete his purchase, whereupon the plaintiff gave him written notice that he should sell the yacht "either by pub

32 In Moore v. Potter, 155 N. Y. 481, 50 N. E. 271, 63 Am. St. Rep. 692 (1898) Martin, J., said: "It is to be observed that in many of the cases cited it has been said that in thus selling the property the vendor acts as the agent of the vendee for that purpose. Clearly, the use of the words 'as agent of the vendee' was not intended as a determination that the relation between the parties was that which ordinarily exists beween a principal who owns property and an agent who may be authorized to manage or sell it. But it is a general expression which has been somewhat inaccurately used to define the right of a vendor to make a resale and hold the vendee responsible for his loss. It is quite manifest that a resale made under such circumstances is not made by the vendor strictly as the agent of the vendee, but he acts for himself in disposing of the property for the purpose of ascertaining the actual damages he may sustain. Doubtless in making it the vendor would be bound to sell within a reasonable time, to exercise good faith to effect a sale at the best price he could obtain, to follow any proper instructions the vendee might give as to the time and manner in which it should be made, and to give credit upon the contract price for the amount received. His duties in making the sale may, in some respects, resemble those of an agent, and thus the expression that he acts 'as the agent of the vendee' has arisen. That he owes the vendee the duty to thus conduct the sale is clear, but that his acts in making it can be properly regarded as the acts of an agent, as that word is generally understood, is quite otherwise. Surely the fact that a vendor might seek this remedy against an insolvent or doubtful vendee, would not confer upon the latter such a title as would enable him to demand and hold the property without complying with the terms of the contract. To say then that the vendor becomes the agent of the vendee in making the sale is not quite correct, and is to be regarded at most as a mere fiction of law, and the bene ficial title does not pass to the vendee."

lic sale at auction, or private negotiation, whichever in my judgment will result in obtaining the most favorable price, and in the event of any deficiency in the sum so obtained and the contract price as agreed upon as per contract of July 28th, 1897, namely, $2,250, I shall hold you for such deficiency." The defendant paid no attention to this notice, and had no further communication with the plaintiff at any time on the subject of selling the yacht.

The plaintiff promptly placed the vessel in the hands of an experienced yachtsman for sale, but after due effort no sale could be made, although she was advertised in a prominent New York daily newspaper every Sunday during the months of August and September. Thereupon the plaintiff placed her in the hands of a public auctioneèr for sale at auction, and on the 29th of September gave the defendant personal notice in writing that she would be sold at auction on the 6th of October, 1897, at 1 o'clock p. m., at the store. of the auctioneer, No. 29 Burling Slip, in the city of New York. In the advertisement of the auctioneer she was fully and accurately described, and notice was given that she could be "seen at Atlantic Yacht Club Basin, foot of 55th street, Brooklyn." At the time and place named she was sold at auction in the usual way to an agent of the plaintiff for $1,100, which was the highest, but not the only, bid, as a stranger had run her up to $1,050. The expenses of the sale were $90, of which $40 was for advertising, handbills, and postage, and $50 was for the services of the auctioneer.

The plaintiff credited the net proceeds of the sale upon the purchase price, and sued the .defendant for the balance, amounting to $1,240. The defendant, in his answer, pleaded a general denial, and also that he was induced to purchase the yacht by certain fraudulent representations made by the plaintiff as to her condition, but on the trial he gave no evidence in support of that allegation or any other. When the plaintiff rested, after proving the foregoing facts, the trial court, upon motion of the defendant, directed a verdict for the plaintiff for nominal damages only, and an exception was duly taken. The jury rendered a verdict for six cents, and, the judgment entered accordingly having been affirmed by the appellate division, the plaintiff came here.

VANN, J. When the vendee of personal property, under an executory contract of sale, refuses to complete his purchase, the vendor may keep the article for him, and sue for the entire purchase price; or he may keep the property as his own, and sue for the difference between the market value and the contract price; or he may sell the property for the highest sum he can get, and, after crediting the net amount received, sue for the balance of the purchase money. Moore v. Potter, 155 N. Y. 481, 50 N. E. 271, 63 Am. St. Rep. 692; Dustan v. McAndrew, 44 N. Y. 72.

While the courts below recognized this rule, they did not apply it; for they held that the sale at auction was no sale at all, because