The action is brought to recover damages alleged to have been sustained by Franklin Sawyer, assignor of the plaintiff, in consequence of the neglect and refusal of the defendant to accept and pay for a car load of 500 hides that he had ordered and pur,chased of said assignor and directed to be shipped from Chicago, where said Franklin Sawyer resided ana where the hides were, to Owego, in the state of New York, where the defendant had a tannery, in which he was conducting, on a more or less extensive scale, the business of tanning hides into leather.
The bargain for the hides was made through correspondence by letter and by telegraph communications between the parties.
After the arrival of the hides at Owego and some correspondence by telegrams and by letter, and the sending an agent by the plaintiff to Owego to see the defendant, and after an interview with the .gentleman so sent by the plaintiff with defendant’s agent at Owego, the defendant finally refused to receive the hides unless he had an opportunity of taking them from the depot to his factory and *907there opening and examining, if not testing and proving them.
This the plaintiff refused to allow the defendant to do, and gave him notice at the proper time and manner, that unless he accepted the hides in accordance with the contract, and especially if he refused after the offer which had been made to examine the hides at the railroad station upon a platform or in a car, that the hides would be returned to the seller in Chicago on account of the refusal to receive and pay for the same, and woúld there be sold at the best price that could be obtained for them, and defendant would be charged with the difference between the price brought on the sale at Chicago and the price agreed upon, together with the necessary expenses growing out of sending the hides to and return from Owego, and other incidental expenses occasioned by the refusal of the defendant to receive and pay for in accordance with the contract.
This action is brought to recover that difference and those expenses; that is, the difference between the contract price and the price at which they were sold at Chicago, and this recovery is based upon that difference in the price and these expenses.
This correspondence by telegram and by letter commenced on or about the 20th day of October, 1882, and was carried on for a few days, and culminated as the trial court found, in an agreement to purchase, on the part of the defendant, the five hundred hides, specifying the price per pound and quality of the hides, and that in pursuance of such contract and purchase, the plaintiffs’ assignor shipped the hides on the fourth of November to his own order, accompanied by a draft on the defendant sent through a bank at Owego. The hides to be delivered to the defendant upon payment of the draft, and the carrier of the railroad company was directed to deliver them accordingly.
When the hides arrived at Owego, on or about the 11th of November, 1882, notice was given to the agent or person in charge of the defendant’s tannery, that they had arrived, and at this point, the question in controversy arises, whether the defendant was bound under the contract made between him and plaintiff’s assignor, to take the hides and pay the draft without any examination or inspection of them, or whether under the contract he was entitled to an inspection of the hides before accepting the draft or paying the draft, or acceptance of the hides. There had been nothing said in these negotiations or correspondence between the parties, until after the hides were shipped, on the fourth of November, as before stated, in respect to the time or manner of payment for the hides.
The trial court found that this contract was consummated *908and found the contract by a modification or waiver, resulted in giving to the defendant the right that he claimed, namely: to an examination of the hides before an acceptance of them or accepting the draft and paying it.
The court should (I think from the evidence), have found the correspondence between the plaintiff’s assignor and the defendant, commencing with the letter of enquiry on the 20th of October, and the actual shipment on November 4th, that the defendant ordered of plaintiff’s assignor, 500 hides the quality of which was specified in the correspondence at prices named per pound for the hides, and the same were to be selected by plaintiff’s assignor for the defendant, and the plaintiff’s assignor did ship the hides accordingly, and the same were received at the railroad station near defendant’s tannery, in good order and in due time.
The law arising upon such finding is that the defendant had no right to test or prove the hides, and was not entitled to the possession of them, for that or any other purpose, until they were paid for.
Upon the ordinary agreement to sell and to purchase personal property, in the absence of any agreement or provision in the agreement as to the time or manner of payment, delivery and payment are simultaneous acts, and as a tender is equivalent in law to performance, a tender of delivery or payment by one person to the other gives the person making the tender the right to enforce the performance of the contract by the other. Hayden v. Demets, 53 N. Y., 426, 428, 429.
In the case under consideration, defendant made no objection that the hides were not of good quality or of the quality specified in the terms of purchase nor in the number of hides. He simply insisted that he had a right under the contract to an examination of the hides before acceptance and payment. Under such a contract, as I think, the trial judge might have well found from the evidence in this case, it results as in the case of Higgins v. Murray (4 Hun, 565), and as was in the opinion in that case expressed by Judge Daniels, the plaintiff by shipping in his own name was simply keeping the possession of the property, as he had the right to do, until it had been accepted and paid for by the defendant. By shipping in that manner he retained and kept the lien of possession as his security for the payment of the property.
The effect of the contract was to transfer the title of the property from plaintiff’s assignor to the defendant, subject only to the right of possession of the assignor to retain possession until payment should be made, as long as no credit was to be given, or had been provided for, by the terms of the agreement.
*909After the making of the contract, he became the agent of the defendant, save in retaining possession of the property as security for the payment of the purchase-money, while title to the property was vested in the defendant. To the same effect' is the case of Commercial Bank v. Pfeiffer (22 Hun, 327); also the case of Morey v. Medbury (10 id., 540).
If the law in this case is not as above stated, the effect would be that a person who, under a valid contract, has sold his property, sent it to a distant place to the manufacturing establishment of the purchaser, has received no payment, and has parted with the possession of the property, and that means of securing payment must rely upon the responsibility of the purchaser and his disposition to pay for the property.
If this is not satisfactory to the purchaser, he should have made a different bargain. He could have done as he was advised by the plaintiff’s assignor, viz.: Have appointed a hide broker or expert to have made the selection. Then both the buyer and the seller would have been bound by the selection made, the buyer to accept and pay for, and the seller to deliver. But the defendant chose to make the seller his agent, to select, and he must abide by the selection made for him. Especially in the absence of any evidence that the hides were not just what he ordered. Indeed, the defendant did not base his refusal to pay upon any allegation, much less upon any proof, that the hides were not in accordance with his specification and order, but upon the simple pretext that he wanted to examine them, and that, too, after he had authorized the plaintiff’s assignor to select the hides for him.
While the trial court might, and, I think, should have found as above indicated, it has found substantially in that way, but with the qualification that the plaintiff’s assignor gave the defendant the right to examine the hides before accepting them.
This right the learned trial court bases upon expressions in the letters of October twenty-seventh and November fourth, and which I think were subsequent to the correspondence which constitutes the contract between the parties. The examination referred to in those letters, is not to be an examination which should determine whether the defendant should receive these five hundred hides, but the examination of this lot was to determine whether he was so well suited with this lot that he would make further and larger orders.
Besides it seems very plain that the plaintiff’s assignor did not mean to change the terms of the contract for this shipment, but at all times, and upon the stand as a witness upon the trial, insisted that the defendant was not entitled, as a matter of right, to an examination, before an acceptance of *910the hides. There was no consideration for such change of contract or waiver, as it is called by the trial court, and it therefore imposed no new or different obligation upon the plaintiff than existed under the former contract. But the trial court made a finding that the contract was so modified as to allow the defendant an examination before acceptance. The trial court also found that plaintiff’s assignor had offered to defendant an opportunity to examine the hides, outside of the car in which they were contained, upon the platform or in the store house; that such opportunity was a just and reasonable one, and that defendant refused, and thus defendant broke the contract, and that the plaintiff’s assignor was justified in the course he pursued thereafter.
I can see no error in this finding or conclusion. It would afford a fair and reasonable opportunity for the defendant to determine the quality of the hides. None could be better for the purpose of an examination, unless they should be taken to defendant’s tannery and there be worked as well as examined. Of course business of this kind could not be practically or successfully carried on in this way. Certainly not to the vendor of hides living, hundreds if not thousands of miles away, and receiving many, if not the most, of the hides he sells, from dealers and butchers living and carrying on business as many more miles from the plaintiff’s assignor.
We come now to notice the exception taken by the defendant. These were first as to the proof of a custom existing in Chicago for the seller of hides to ship and consign to himself at the place of destination, with directions to the carrier to deliver to the vendee upon his accepting a draft for the purchase price. We do not think that the proof of such custom could have harmed or prejudiced the defendant in any way. Whether the contract was to accept the hides and sign a draft for payment upon notice of their arrival by the carrier, or to do so after reaonable opportunity to examine the hides, and refusal by the vendor to avail himself of such opportunity, can make no difference with the legal rights and obligations of the parties to the contract. It was the clear right of the seller when no other mode or time for payment is provided in the contract, to retain possession of his property until he was paid for it. The defendant has no right or ground for complaint that the plaintiff insists upon such right. The defendant in this case, ordered hides to be send to Owego. Hides, such as he wanted and had ordered, were brought and tendered to him at the railroad station at Owego, one of the usual routes and points of shipment. No other route or point had been indicated by the defendant when the hides were shipped.
We do not perceive that the defendant’s rights have been interfered with, or what just ground of complaint or of refusal to accept the goods, the defendant would have had *911if the goods had arrived in the personal care or possession of the seller, and without any bill of lading or shipping bill whatsoever. The seller has the right to retain his possession until he received, or is tendered payment of the price. This mode of doing business is entirely legitimate, and in many cases it is the only way of securing payment. Commercial Bank v. Pfeiffer, supra-, 22 Hun, 327. It certainly would not seem to be any just ground of complaint upon the part of the defendant, that the plaintiff, instead of delivering, the goods to the vendee at Chicago by an absolute consignment to him, as he was authorized to have done under the contract in question, took the risk upon himself of the payment of the transportation, and of their arrival in good order and condition at the place where the defendant desired to use and manufacture them into leather.
Our conclusion is, that this proof of custom did not change or affect the legal relations of the parties to the contract in question, and was not at all necessary or serviceable in the decision of the question in this case. Whether this proof of custom was in or out of the case, the ” decision must have been the same, and so the defendant has no just ground of complaint, or for another trial, without such proof.
We do not think there was any error in allowing proof of the acts of Bond, plaintiff’s' agent, and Upton, defendant’s agent. There can be no doubt of their agencies upon the evidence in the case, outside of any statements made by the alleged agent that he was agent. Being the agents of the parties, their acts and statements, while performing acts for their principals in the offers and efforts for an opportunity to examine the hides and to obviate objections and reconcile differences between the parties, was competent evidence.
The defendant, upon the agreement, discusses another kind of evidence received upon the trial, viz., the letters and telegrams sent by the seller to the purchaser, and the findings which may in a measure be based upon such evidence. An effectual answer to that argument is that this evidence was received without objection, and the defendant, when examined as a witness after this evidence was thus received, does not deny that he received them, and I think when a response does come from the defendant touching the points in the letters and telegrams, it is pretty plain that they were received by the defendant. Nor do I think that the letters introducing Bond, agent for plaintiff’s assignor, to and informing defendant’s agent, Upton, and Mr. Platt, cashier, and to the railroad agent, objectionable. They proved but the authority of Bond to act, and could not until he had acted affect the rights of the _ parties, and the effect of his action would depend upon his authority, and' hence the necessity for proving his authority.
I think we have examined, closely and carefully, the *912lengthy and exhaustive points furnished by the defendant’s-counsel upon the argument, and I do not perceive any substantial error on account of which there should be a new trial granted in this case. The case seems to have been thoroughly tried by the court without a jury, the jury having been waived at the close of the evidence, and a consent given that the case be decided by the court. There were numerous incidental and unimportant questions raised and ruled upon during the trial, and exceptions taken in some instances and in others not taken.
I refer to the depositions of witnesses taken under commission, and the rejection of answers, or portions of answers, and the question of variance and amendment, but-they do not seem to me to be important, and many of them are clearly within the discretion of the court.
Such were the statements made to witnesses in identifying the hides sold in Chicago. I do not understand from the defendant’s points that any serious contention is made as to the right of the_ plaintiff to recall the hides and selling them at Chicago, the great hide market of the country, and after notice to the defendants that that course would be pursued, if the defendant refused to accept and pay for the hides in accordance with the terms of the contract.
_ The plaintiff, in the contingency just stated, had the right to pursue this course.
I think the sale was properly made by the plaintiff at Chicago, and that he adopted the best means to get the highest price and occasion defendant the least loss, and that the sale, etc., was conducted in entire good faith by the plaintiff’s assignor, and that the amount of the recovery did not exceed the plaintiff’s right, or the defendant’s obligation after he had broken the contract. Dustan v. McAndrew, 44 N. Y., 72, 74, 79.
We think the judgment should be affirmed, with costs.
All concur except Follett, Oh. J., not sitting.