#### Westmoreland Coal Company, Appellant, *v.*Syracuse Lighting Company, Respondent.

Fourth Department,

December 3, 1913.

Sale — contract for sale and delivery of coal —loss of coal while in possession of carrier— action for purchase price.

In an action to recover the purchase price of two loads of coal shipped by canal boats by the plaintiff to the defendant under a contract of sale requiring delivery alongside defendant’s dock, it appeared that upon the arrival of the boats within 300 or 400 feet of defendant’s dock they could not at once be unloaded, because the defendant was then unloading other boats, and after notice of then- arrival to the defendant they were taken to the other side of the canal, where, on the same day, a break occurred in the banks of the canal, and, without any fault on the part of the plaintiff, the boats and the coal were lost.

*Held,*that as no delivery had been made, title did not pass to the defendant, and that a judgment in its favor should be affirmed.

Krtjse, P. J., dissented, with memorandum.

Appeal by the plaintiff, Westmoreland Coal Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 20th day of August, 1912, upon the decision of the court after a trial before the court, a jury having been waived.

Plaintiff sought to recover in this action the purchase price of two canal boat loads of coal shipped by it to the defendant, *324under a contract made by the two parties, of which the following is a copy:

“Agreement made this Twenty-fourth day of April, A. D., 1906, between the Syracuse Lighting Company, a corporation of the State of New York, and the Westmoreland Coal Company, a corporation of the State of Pennsylvania.

“ In consideration of the mutuality hereof it is hereby agreed between the parties hereto, as follows, viz:

“ Quantity. The seller hereby sells and agrees to deliver to the buyer, and the buyer agrees to purchase and receive fifty thousand (50,000) tons of % screened coal to be shipped and taken at the rate of twenty-five thousand (25,000) tons each, during the seasons of navigation, 1906 and 1901. ■

“This contract is subject to the contingencies of transportation, car supply, strikes and other causes beyond our control, delaying or preventing deliveries. Railroad weights to govern settlements.

“Price, $2.82% per 2,000 lbs. delivered alongside Syracuse Lighting Company’s dock at Syracuse, N. Y., as heretofore.

“ Payable as follows:

“For coal delivered in 1906:

“ On the 15th of each month for one-half the amount of coal received during the previous month.”

*William Nottingham,*for the appellant.

*Jerome L. Cheney,*for the respondent.

Robson, J.:

The parties to the contract above quoted contemplated that plaintiff in fulfillment of the contract would ship the coal therein mentioned by rail from plaintiff’s mines to Watkins, N. Y. It was to be there loaded on canal boats and thence taken by boat to Syracuse, N. Y., and there delivered alongside defendant’s dock as theretofore, plaintiff having furnished defendant with coal under prior contracts between the parties. The two boats with their loads of coal, which are the subject of this action, reached Syracuse and approached to within 300 or 400 feet of defendant’s dock, which was on the north or tow *325path side of the canal. They could not at once be docked and unloaded because two other boats then occupied the dock. These latter boats contained coal theretofore delivered by plaintiff under its contract, and their cargoes were then being unloaded by defendant. For this reason and also (as the evidence shows and the trial justice finds)'because “the rules governing traffic upon the canal required it, the two boats in question were moved over to the south side of the canal, nearly opposite defendant’s dock, to await their turn for being unloaded until the unloading of the boats already at the dock was completed.” Notice of the arrival of the boats was given to defendant, the circumstances of which and of the casualty which thereafter ensued causing the total loss of the coal are succinctly stated in the findings, as follows: “That upon the arrival of the said two boats carrying the coal in question in this action, at said point, 300 to 400 feet west of the defendant’s dock, as above stated, the captain and man in charge of the boats notified the defendant of their arrival and the defendant entered said boats as having arrived at the dock, at twelve o’clock, noon on July 30, 1907, in its books kept for that purpose. That, at about two o’clock on the same day, a break occurred in the banks of the Erie canal a short distance west of the defendant’s dock, and, without any fault on the part of the plaintiff, the boats with the cargoes of coal in question, were drawn into the said break and lost.”

It was not unusual for boats to be thus delayed in docking and unloading. That had been true as to other deliveries of coal shipped by plaintiff to the defendant.

If the coal in question had not been in fact delivered to the defendant before it was lost then the carrier still remained the agent of plaintiff for the purpose of making delivery of if under the contract. It is clear that the carrier’s duty in making the delivery had not at that time ended. He still had to place the boats alongside defendant’s dock. This he had" not in fact done, though the boats at one time had approached within a few hundred feet of the dock. It is true that had the dock, at the time, not been completely occupied with other boats, which were then unloading, he would have done so. But defendant was not responsible for this delay in laying the *326boats alongside the dock. The boats already at the dock were discharging their cargoes of coal, which plaintiff, by its carrier in control of those boats, had previously delivered to . defendant under the contract. Plaintiff was fully advised before the contract was made that the capacity of the dock was limited, so that only two boats could be there unloaded at the same time. There is no question that defendant was diligent in unloading the boats then at its dock. The arrival of the two boats, concerning which this controversy has arisen, before the dock was cleared for their reception was due only to the carrier’s management of their transportation. The carrier for this purpose was plaintiff’s, not defendant’s, agent. Taking them to the side of the canal opposite defendant’s dock and tying them up where they were afterwards lost was the carrier’s act. Defendant gave no direction as to their management, or what should be done with them. The entry on defendant’s books of arrival of the boats did not in fact indicate actual delivery to nor receipt by the defendant; but was as the evidence shows simply a concession to plaintiff’s interest for the sole purpose of fixing a time from which subsequent possible claims of boat captains against plaintiff for demurrage could be corrected and verified.

It is suggested that when plaintiff placed the coal on these boats there was an appropriation of it in fulfillment *pro tanto*of the executory contract for delivery of coal. While this may have been an actual appropriation by plaintiff to that end, yet it did not complete what it had agreed to do before title passed to the defendant. Delivery of the coal was as much a part of its duty as actual selection and appropriation of it. Delivery of the coal at the place specified in the contract was required to be made, and then only would the defendant’s assent to such Appropriation in part fulfillment of the contract be established. Delivery was not made. Therefore, title had not passed to defendant. *(Grant*v. *United States,*74 U. S. [7 Wall.] 331; *Bigler*v. *Hall,*54 N. Y. 167; *McNeal*v. *Braun,*53 N. J. L. 617; *Magruder*v. *Gage,*33 Md. 344, 348.) The case of *Terry*v. *Wheeler*(25 N. Y. 520), which is now urged as authority for a different view as to the effect of a contract requirement of delivery by the seller, does not seem to be in point, as appears *327from the following statement in the opinion in that case (p. 525): “If the payment was to be made on or after delivery, at a particular place, [as it was in the case now before us] it might fairly be inferred that the contract was executory, until such delivery; but where the sale appears to be absolute, the identity of the thing fixed and the price for it paid, I see no room for an inference that the property remains the seller’s, merely because he has engaged to transport it to a given point.”

Perhaps it may not be amiss to call attention to the fact that since this action was begun the principle, which seems to me to be decisive of this case, has been embodied in a provision of the statutory law of this State. By rule 5 of section 100 of the Personal Property Law (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], added by Laws of 1911, chap. 571) the effect of a provision in a contract of sale requiring the seller to deliver to the buyer the goods sold is declared to be, presumptively at least, that the property therein does not pass to the latter until the goods have been delivered to him, or reached the place agreed upon.

The judgment should be affirmed, with costs.

All concurred, except Kruse, P. J., who dissented in a memorandum; Merrell, J., not sitting.

Kruse, P. J. (dissenting) :

The practical question here is which of the parties shall bear the loss of the two boat loads of coal which were lost owing to a break in the canal occurring while the boats were waiting to be unloaded. The plaintiff, the seller, or the defendant, the buyer ? The solution of that question does not depend upon whether the plaintiff had delivered the coal alongside the dock, within the meaning of the contract. That is a mere circumstance to be taken into account in determining the controlling question as to whether the title to the coal had passed to the defendant before it was lost, or still remained in the plaintiff. If there was an appropriation of the specific coal to the contract, assented to by the defendant after the coal reached Syracuse, as I think should be found as a fact from the evidence, the title passed to the defendant and the loss *328must fall upon it. Even if the evidence is sufficient to make that question one of fact, I think it should be found in favor of the plaintiff.

It may be, as defendant’s counsel contends, that the record of arrival of boats was kept by the defendant to protect the plaintiff against unfounded claims for demurrage, but the record and surrounding circumstances also establish that the defendant knew that this particular coal had been set apart to it under the terms of the contract and was clearly identified by both the buyer and the seller. Not only did the defendant know the precise time and place of arrival of the coal, but a record of the quantity as well was made by it. The identification of the coal as the subject of the sale was complete.

Although the contract was originally executory, it was as to the coal in question so far executed before it was lost as to pass the title. As regards the passing of the title, it was in effect the same as though the coal had been set apart and identified as the subject of the sale at the time of the making of the contract. The subsequent appropriation of the coal to the contract was sufficient to pass the title to the defendant. *(Cooke*v. *Millard,*65 N. Y. 352, 366; *Terry*v. *Wheeler,*25 id. 520; 24 Am. & Eng. Ency. of Law [2d ed.], 1054, 1058, and cases there cited.) Although the coal may not have been delivered alongside the dock within the meaning of the contract, that was made impossible by a cause for which the plaintiff wáis not responsible, and if the title thereto had passed before the break in the canal, as I think it had, the loss of the coal should fall upon the defendant.

If I am right it follows that the judgment should be reversed.

Judgment affirmed, with costs.