Golden Gate Co. v. Jackson, 13 Abb. N. C., 476.

14 formance, which was, in part, the consideration of the promise of the defendant. The defect in the complaint was not waived because the objection was not taken by demurrer or answer. (Code, § 499.) The plaintiffs did not apply for an amendment, but took the risk of the sufficiency of the complaint, and cannot on this appeal be relieved from their position. (Tooker v. Arnoux, 76 N. Y., 397; Southwick v. First Nat. Bank, 84 id., 420.)

Other questions have been argued, but as the point already 15 considered is decisive of this appeal, it becomes unnecessary to consider them.

The judgment should be reversed and a new trial ordered.
All the judges concurred.

Judgment reversed.

GOLDEN GATE CO. v. JACKSON.

N. Y. Supreme Ct., Special Term, First Dep., May, 1884.

[Reported in 13 Abb. N. C., 476.]

1. To sustain an attachment in an action on contract, the specific sum due must be established by proof, not merely averred. Hence, if plaintiff by adopting the wrong measure of damages claims too much, the attachment must be vacated.

2. Where the plaintiff stated his cause of action as for the seller's breach of agreement to take and pay for goods sold to him, and without any indication that the goods were to be manufactured for the purpose of the contract,-Held, that as he claimed damages in the amount of the contract price instead of claiming the difference between the contract and the market price, his attachment could not be sustained.

1 Motion to vacate attachment.

Plaintiff sued on a contract to sell and deliver machines to the defendant, on the defendant's failure to receive and pay for the articles and obtained an attachment against defendant's property as a provisional remedy under the Code of Civil Procedure.

BARRETT, J. The point is well taken that the damages are not liquidated by the affidavit. An attachment cannot be reduced, consequently a general averment of damage, as in a com

Note on the Seller's Actions on the Contract of Sale.

plaint, will not do. The specific sum must be established by 2 proof, not merely averred.

Here the plaintiff sues for the contract price, claiming that as his damage. But such is not his damage. His damage is the difference between the contract and the market price of the property at the time for delivery (Billings v. Vanderbeck, 23 Barb., 546; Davis v. Shieds, 24 Wend., 322; Sedg. on Dam., 260). This rule is not affected by the foreign cases cited by plaintiff. The case of Bement v. Smith (15 Wend., 493) was explained in Billings v. Vanderbeck, etc. (supra) as applicable to work and labor, as where a machine is manufactured for the vendor.

But here it is not averred that the machines were to be manufactured for defendant. The affidavit specifies only an agreement to sell and deliver, non constat, but from an existing stock of machines. It is not necessary, therefore, to consider the other points, as, for the reasons given, the plaintiff has not shown by affidavit that he is entitled to recover the sum stated. Motion granted, with costs.

3

NOTE ON THE SELLER'S ACTIONS ON THE CON

TRACT OF SALE.

The distinction between a contract for sale and one for production or 1 manufacture is important by reason of the fact that the provision of the Statute of Frauds as to sales does not apply to the latter, and the provision as to contracts by their terms not to be performed within one year, is not likely to apply to the former. If the contract of a portrait painter were deemed a contract of sale because the property in the canvas and the oils and pigments thereon must sooner or later pass to the sitter, the statute might be fatal to an oral contract by reason of the amount of the payment agreed.

The New York rule is to inquire whether the claimant's skill was the 2 thing bargained for; if so, the allegation should be of services and materials found, and not of sale. Passaic Mfg. Co. v. Hoffman, 3 Daly, 495; Warren Chem. Co. v. Holbrook, 118 N. Y., 586, 593.

Different views prevail in some other states. See Tiedeman on Sales, Sec. 58.

Under a complaint for goods sold, etc., a recovery for work and labor in producing them cannot be had against objection unless it is a case for

Note on the Seller's Actions on the Contract of Sale.

3 amendment. Schrimpton & Sons v. Dworsky, 21 N. Y. Supp., 461; s. c. 2 Misc., 123; 49 State Rep., 29.

Action for price. If the goods have not only been sold but also delivered, both facts should be alleged.

If the delivery was made pursuant to agreement, not to defendant or his agent, but to a third person-as in the case of goods ordered by one as the responsible party for the benefit of another who is to receive them— it is better to allege the transaction, according to the fact, that plaintiff bargained and sold them to the defendant, and at defendant's request delivered them to the third person. But such an agreement and delivery can be proved under the usual allegation of sale and delivery to defendant, unless defendant shows that he was surprised by the variance. 4 Rogers v. Verona, 1 Bosw., 417.

If there was no delivery, the allegation should be that plaintiff bargained and sold to defendant, etc.

The three actions, one of which the seller of personal property may have against a buyer who refuses to accept the goods, are: (1) The seller may store the property for the buyer and sue for the purchase price; or (2) he may sell the property as agent for the buyer and recover any deficiency resulting; or (3) he may keep the property as his own and recover the difference between the contract price and the market price at the time and place of delivery.

These remedies apply even to such intangible or complex property as a share in a partnership; and they apply to executory as well as executed 5 sales; but in executory sales a valid tender, and a refusal, would be neces

6

sary before the seller could sue. Van Brocklen v. Smeallie, 140 N. Y., 79; s. c. 35 N. E., 415, citing Hayden v. Demets, 53 N. Y., 426; Dunstan v. McAndrew, 44 N. Y., 72; Mason v. Decker, 72 N. Y., 595.

There are several considerations to be weighed by the attorney in advising his client which of these remedies to pursue.

(1) If the seller sues for the purchase price—

He may elect this remedy even though the goods are perishable; he is not bound to look out for the buyer's interest and resell them (Hunter v. Wetsell, 84 N. Y., 549).

In this action he cannot recover storage charges on the goods, for it is urged that in storing the goods he is only preserving his own lien on them (per McAdam, J., in Dreyfuss v. Foster, 3 N. Y. Supp. 54; s. c. 19 N. Y. St. Rep., 683).

If the seller elects this remedy, he is bound to deliver the goods whenever they are demanded, upon payment of the price (Hayden v. Demets, 53 N. Y., 426).

(2) If the sellor sells the property as the buyer's agent and sues for any deficiency

The sale need not be at auction, unless that is the customary method of selling the property in question (Van Brocklen v. Smeallie). Whether or not the sale is at auction, notice to the defaulting buyer of the time and place of sale is unnecessary (Pollen v. LeRoy, 30 N. Y., 556); all that

1

!

Farley v. Browning, 15 Abb. N. C., 301.

the buyer can require is that the seller shall be diligent to obtain the 7 best price possible for the goods, and that the sale shall be within a reasonable time (Sherwood v. Ribbons, 6 N. Y. Week. Dig., 231). The sale need not be in the name of the buyer (Smith v. Pettee, 70 N. Y., 13), and if it is at auction the buyer will not be deemed injured by the mere fact that the seller bought in the property by bidding higher than anyone else (Austin v. Hartwig, 49 Super. Ct. [N. Y.], 256).

In this action the seller may recover any expenses incurred in keeping the property (McEachron v. Randles, 34 Barb., 301); including expense of insuring it (Lewis v. Greider, 51 N. Y., 231).

(3) Where the seller keeps the goods and sues for the difference in price

He may deliver the same goods to other parties on contracts made prior to that with the buyer, and the price received on such contracts is no evidence of the market value of the goods (Canda v. Wick, 100 N. Y., 127).

Whichever remedy the seller elects to pursue, his election once made binds him. Having adopted one remedy, he cannot afterwards recede from the position taken and pursue a different remedy (Bradford v. Crocker, 60 N. Y., 627; Dreyfuss v. Foster, supra).

FARLEY v. BROWNING.

New York Common Pleas, General Term; January, 1885.

[Reported in 15 Abb. N. C., 301.]

1. Although one who has performed a special contract for work and materials may recover the stipulated price without pleading the contract, provided it has been fully performed so that only the duty to pay the money remains, yet he must prove performance of the contract, whether he sues for work, etc., generally, or pleads the special contract.

2. Where he sues without setting up the special contract, an admission in the answer, that he had done work and furnished materials (there being a denial of value), does not excuse him from proving that he had done all the work required by the special contract produced in evidence, nor preclude the defendant from giving evidence to the contrary.

Appeal from a judgment for the plaintiff, entered on the 1 verdict of a jury at the Special Term, and from an order striking out defendant's counterclaim.

The action was brought by Patrick Farley against William H. Browning, in the Seventh District Court of New York city, and was removed under the statute to the Court of Common Pleas.

2

3

4

5

Farley v. Browning, 15 Abb. N. C., 301.

The complaint alleged:

"I. That heretofore and on and between February 24, 1882, and October 31, 1882, the plaintiff performed certain work, labor and services for the defendant, in the digging and excavating of certain trenches on the north side of Sixty-third street, between Fourth and Madison avenues, in the city of New York, for the purpose of erecting certain houses thereon, and also furnished, at defendant's request, materials, to wit: building stone, to be

used in the erection of said houses.

"II. That said materials so furnished, and labor and services performed, were reasonably worth the sum of $2,200, which the defendant promised and agreed to pay therefor.

"III. That defendant has paid on account thereof, the sum of $2,000, leaving a balance due and owing plaintiff from defendant of the sum of $200, no part of which has been paid, though duly demanded."

The answer of defendant set forth:

"I. He admits the 1st allegation or paragraph of said complaint as therein alleged.

"II. He denies the 2d allegation or paragraph in said complaint.

"III. He denies the 3d allegation or paragraph of said complaint."

The fourth paragraph of the answer also pleaded for a separate defense, that plaintiff had entered into a written contract with defendant, annexed to the answer, and that he had failed to perform it, and made a counterclaim therefor. The matter pleaded in the fourth paragraph, " and constituting counterclaims against the plaintiff," was stricken out on motion, on the ground that defendant could not, at least without leave of court, interpose new defenses to those interposed in the District Court.

The jury found for the plaintiff, and from the judgment entered thereon defendant appealed.

VAN HOESEN, J. The error in the charge of the judge was caused by a misconstruction of the pleadings. The answer does not admit that the work for which a special contract had been made had been duly performed; it merely admits that the plaintiff had done work and furnished materials for, and at the request