Uhlman v. Day , 45 N.Y. Sup. Ct. 298 ( 1885 )

Landon, J.:

There was no contract of sale, and therefore the title to the hops •never passed from the defendant to the plaintiffs.

Fi/rst. The plaintiffs did not without qualification accept the proposition of the defendant. In response to the offer by plaintiffs •of twenty-four cents, the defendant said “twenty-five or no sale.” To this the plaintiffs telegraphed “will take them at twenty-five; will send some money on afternoon train.” How about the rest of ■the money ? When was that to be paid or sent ? “ Will take them .at twenty-five,” standing alone, would mean will take and pay forj them immediately; but when there is appended “ will send some money on the afternoon train,” there is implied in addition to the indefinite delay of payment, an indefinite delay of taking the hops, •and thus the defendant is asked to vary the terms which his proposition imported, and to this variance he did not assent. If the plaintiffs’ letter is to be regarded as the acceptance, then the defendant was asked to wait until Tuesday following, and thus a delay was asked hy the plaintiffs to which the defendant did not accede.

Second. If there was an acceptance by the plaintiffs of the offer by the defendant, then the contract was an executory one and'the title did not pass. There were twenty-nine bales of hops, but they had not been weighed, and until this should be done the price would be unknown. Payment and delivery were, by the terms of the contract, to be simultaneous acts since it was not otherwise agreed. (Tipton v. Feitner, 20 N. Y., 423.) Until the weighing should be done the title under the agreement would not pass. (Joyce v. Adams, 8 N. Y., 291; Terry v. Wheeler, 25 id., 525; Kein v. Tupper, 52 id., 553; Olyphant v. Baker, 5 Den., 381.) Such being the case it could make no difference in the title whether the weighing was to be done by the buyer or seller, since the act of weighing, not the person who should do it, was the condition precedent to the transfer of title. (Ward v. Shaw, 7 Wend., 404.) The title not having passed this possessory action cannot be maintained, however it might be as to an action for damages.

Third. The award by the referee of one dollar damages for the detention of the property by the plaintiffs, upon their seizure thereof under process, may, in the absence of evidence upon that subject, be treated as an award of nominal damages. As the defendant was probably obliged to procure the preparation and execution of papers tu repossess himself of the property, he probably suffered more damages than he recovered.

The judgment should be affirmed, with costs.

Learned, P. J., concurred. Present — Learned, P. J., and Landon, J.

Judgment affirmed, with costs.