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 prop

erty as his own, and recover the difference between the market price at the time and place of delivery, and the contract price. (2 Parsons on Con. 484; Sedgwick on Dams. 282; Lewis v. Greider, 49 Barb. 606; Pollen v. LeRoy, 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, Ch. 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.1

1 "In case a vendor agrees, by an executory contract, to manufacture goods, to be delivered from time to time, as ordered by the vendee, to be paid for after each successive delivery, and the vendee, after having accepted and paid for a part, gives notice that he will not receive or pay for the rest, the vendor may recover damages for the breach of the contract without manufacturing or tendering the remainder of the goods. (Windmuller v. Pope, 107 N. Y. 674; Dingley v. Oler, 11 Fed. Rep. 373; Ripley v. McClure, 4 Exc. Rep. 345.) In such a case the vendor is not entitled to elect between several remedies, as in case of a sale of goods in existence and identified, or in case goods are manufactured before the contract is rescinded, but he is confined to recovering the difference between the contract price and the actual money value of the property at the time and place appointed for their delivery. [Windmuller v. Pope, supra; Borries v. Hutchinson, 18 C. B. (N. S.) 445.]"-Todd v. Gamble, 67 Hun, 38, 39-40.

VAN BROCKLEN V. SMEALLIE.

(140 New York, 70.-1893.)

ACTION for breach of contract.

FINCH, J. The only question in this case is one of damages. The plaintiff and defendant entered into a written agreement whereby the former agreed to sell and convey, and the latter to purchase and receive, the plaintiff's undivided one-third interest in the partnership of Snyder, Van Brocklen, and Hull, whose assets consisted of real estate held as partnership property for the use of the business, stock on hand, and debts due or to become due; and who were manufacturers of knit goods, occupying their mill for that purpose. The contract was dated February 21st, 1891; the price to be paid was ten thousand dollars; and the formal instruments of sale were to be delivered and the price to be paid on or before the ensuing first of March. The partnership interest of the plaintiff was personal property (Menagh v. Whitwell, 52 N. Y. 146; Morss v. Gleason, 64 id. 204); and the title passed at once upon the execution of the agreement, for it is the general rule that a mere contract for the sale of goods, where the subject is identified and nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the goods sold delivered to the purchaser. (Bradley v. Wheeler, 44 N. Y. 502.) On the morning of February 28th, which was three days after the sale, the defendant announced to his vendor his purpose to "throw up" the contract and to "drop it right there." He made no complaint as to its fairness or justice, no assertion of any deception or mistake, not even of any disappointment in his bargain, but merely said that he had partly promised to put some money into another enterprise and could not put it in both; that his brother was "kicking," and so he should not fulfill his agreement. Ordinarily, the vendee in default proffers some show of justification for his refusal to perform. This defendant had no excuse, but broke his contract because he chose to do so. The vendor, on the

same day, served a written notice upon the vendee to the effect that he, the seller, was prepared to carry out the stipulations of the contract; that the papers on his part were executed and ready for delivery, and could be seen at the place where the exchange was to be made, and where they had been formally tendered to the vendee. As the first of March fell on Sunday, the notice offered performance on the day before or the day after, and insisted upon performance on the latter day at least. The defendant wholly disregarded the notice, and neglected and refused to fulfill his contract. On the second of April following the plaintiff gave a further written notice to the vendee that he had made diligent effort to sell the property since the latter's refusal to take it; that the best offer made was about $2,500 less than the contract price; that he was to give an answer by the next night; and that if he heard nothing to the contrary he should accept the offer and hold the vendee for the resulting loss. The defendant paid no attention to this notice, made no objection, asked no delay, requested no different mode of disposition, suggested no purchaser willing to pay more, but simply remained silent. The plaintiff thereupon sold the one-third interest to his partners, Snyder and Hull, for $7,500, not requiring the cash, but taking $6,000 in notes and the balance in specific articles of property. There is no proof, no pretense, not even a suggestion in the record, that this sale was not perfectly fair and productive of the best price possible to be obtained.

On these facts the plaintiff sued, seeking to recover the deficiency on the resale. In answer to inquiries of the defendant, he testified that the interest contracted to be sold was worth $10,000 when the agreement was executed, and when it was to be performed, and such may have been its intrinsic worth, and yet its sale value may have been much less.

At the close of his case the defendant asked the court to rule as matter of law upon the facts, that the measure of damages was the difference between the value of the property at the date of the contract and the date of performance, and that since there was no such difference, the plaintiff was entitled only to nominal damages. The plaintiff objected to any such ruling, insisting that on the facts he was entitled to recover the defi

ciency on the resale. The court ruled that only nominal damages could be recovered, and directed a verdict for six cents, to which the plaintiff excepted. On appeal the General Term affirmed the judgment.

The ground of that affirmance is certainly erroneous. The rule of damages applied was that which pertains to sales of real property, and which differs in scope and in principle from that applicable to sales of personal property. The opinion describes the contract as one for "the purchase of land," and all the authorities cited relate to sales of real estate. They have no application to the case in hand. The plaintiff had no land to sell and did not contract to sell any. What he did bargain about was his ultimate interest in the partnership assets when converted into money and after payment of all debts. His share of the net surplus then remaining was the only subject of sale, and all that he contracted to sell. His vendee would not and could not become a partner by force of the purchase, would gain no title to the assets as such, and could only force a sale of such assets, including the mill, and the distribution of the proceeds. It was said in Tarbell v. West, 86 N. Y. 287, that "It is now well settled that a purchaser from one partner of his interest in the partnership, acquires no title to any share of the partnership effects, but only his share of the surplus, after an accounting, and the adjustment of the partnership affairs." The courts below, therefore, proceeded on a wrong basis, which led them into error.

In this court the rule of damages for a breach by the buyer of a contract for the sale of personal property, is perfectly well settled. (Dustan v. McAndrew, 44 N. Y. 78; Hayden v. Demets, 53 id. 426.) In each of these cases it was ruled that the vendor of personal property has three remedies against the vendee in default. The seller may store the property for the buyer and sue for the purchase price; or may sell the property as agent for the vendee and recover any deficiency resulting; or 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. In the second of the decisions last cited, it was further held that the rule applied, not only to cases where the title passed at once, but also to cases where the contract