Alleging that he had bought, and paid fifty-four thousand dollars for, a Model 54-B Bucyrus — Erie Shovel, complete with Shovel Front attachment, but that defendant did not have clear title to, and had not, as it had agreed to do, delivered the shovel front to him or put him in possession, of it, plaintiff brought this suit to recover $10,-598.12, the value thereof.
The defendant, admitting the purchase as alleged, denied plaintiff’s charges that it had failed to make delivery or place plaintiff in possession of the shovel front as agreed. Alleging that plaintiff took possession of the shovel front, as had been agreed, at Bath, New York, where, to plaintiff’s knowledge, it was when sold, defendant further alleged that instead of defending his possession and title as he was obliged to do, plaintiff permitted Fago Construction Company to deprive him of it, and his action should be against Fago and not against defendant.
The issues thus joined were submitted to the court without a jury, and the «district judge, upon findings of fact,1 which may *802not be disturbed as clearly erroneous, and conclusions of law,2 with which we agree, found for plaintiff and gave judgment in his favor for $10,166.12, the value of the shovel front.
Defendant, appealing from the judgment, is here insisting that the district judge misapprehended the effect of the evidence, in that it established that defendant had fully complied with its contract, and incorrectly stated and applied the law, in that plaintiff, having agreed to take the shovel front “as is and where is”, and having found it at Bath, New York, it was plaintiff’s duty to take and keep possession of it, and he could not hold defendant responsible for the act of Fago in taking it away from him.
With full recognition of defendant’s sincerity and an honest belief in the rectitude of its position, we think it plain that it is defendant, and not the judge, who has misapprehended the evidence and is misapplying the law.
Without regard to what we might find the facts to be as matter of original impression, we are in no doubt that the record furnishes ample support for the findings of the judge so that we may not discard them as clearly erroneous. Indeed, we think that the court’s findings that plaintiff was never put in possession are in accord with the simple facts of the case, and that his conclusion that plaintiff should have back what he paid for and did not get is in accord with the simple justice of it.'
Appellee, defining delivery, as the “transfer of possession”, as “giving to the buyer or his agent the real possession of goods sold”, and citing authorities 3 in support, insists that, as found by the court, defendant agreed to make delivery to plaintiff, that is to put him in effective possession of the goods and that he did not do so.
We are in complete agreement with this view. As a general rule, in the absence of a contrary agreement, the seller is not bound to carry the goods to the buyer, but the goods must be so placed that the buyer may secure them without lawful obstruction. The vendor has failed to deliver the goods where, at the time of the sale, they are in the possession of a third person who refuses to deliver them.4
Reduced to its simplest terms, defendant’s contention seems to us to come down at last to this:' that plaintiff bought a law*803suit and by not carrying it on with the adverse claimant to the shovel front, he lost his right to recover his money back from defendant.
Under the authorities,5 this will not do. The judgment was right. It is affirmed.