Appellate Term, First Department, March, 1921. [Vol. 115. upon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made." Held, that unless an appropriation to the contract of goods, delivery of which was tendered by the seller after manufacture, was made with the buyer's assent express or implied, such appropriation is insufficient to pass the property in the goods. (Pp. 159-160.) A complaint set forth two causes of action, one for the purchase price of goods sold and the other for damages for defendants' breach of contract in cancelling and refusing to be bound thereby. Upon the trial, by the court without a jury, it appeared that after defendants had ordered from plaintiff certain coats of two designated style numbers designed and manufactured by plaintiff, a number of the coats of the first style were delivered to defendants who though they accepted and paid for the goods refused a subsequent tender of the remaining coats of that style and without reason cancelled the order for the goods of the other style after a few of the coats of said style had been delivered, accepted and paid for. When the order for the goods was cancelled they were all in the course of manufacture. After they were completed, a few days after the order of cancellation, they were sold in the open market and the evidence tended to show that at the time of the sale, the market price had dropped twenty-five to forty per cent since the contract was made. The plaintiff was given judgment for the full contract price of the goods tendered and for the difference between the contract price and that for which the goods were sold in the open market, fixed by the court as the market price of the goods of the style numbers which the defendants had cancelled. Upon reversing the judgment and ordering a new trial; held, that the plaintiff's sole right of action, on the record as it stood, under the first cause of action alleged, was one for damages for non-acceptance of the goods and that the measure of damages was controlled by section 145 (3) of the Personal Property Law. (P. 160.) The trial judge as to the second cause of action, which was based on an anticipatory breach of contract, correctly applied the rule of damages which he should have applied upon defendants' refusal to accept and pay for the goods described in the contract constituting the subject matter of the first cause of action. (P. 161.) Misc.] Appellate Term, First Department, March, 1921. APPEAL by defendants from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, ninth district, in favor of the plaintiff, after a trial by the court without a jury. Abraham Solomon, for appellants. Max Friedman, for respondent. LEHMAN, J. The plaintiff seeks in his first cause of action to recover the purchase price of certain goods which the defendants ordered from him and which were tendered by him to the defendants, and in his second cause of action seeks to recover damages for the defendants' breach of contract" in cancelling and refusing to be bound by contract" for the sale and delivery of other goods. It appeared at the trial that the defendants ordered from the plaintiff twenty-five coats designated as style No. 937 at the price of thirtyfour dollars and fifty cents per coat, and twenty-two coats designated as style No. 934 at the price of thirtytwo dollars and fifty cents per coat. The style numbers are apparently the numbers of styles designed and manufactured by the plaintiff. Thereafter the plaintiff made and delivered to the defendants eleven coats of style No. 937 and the defendants accepted and paid for these coats, but they refused a subsequent tender of the remaining fourteen coats of this style number. They also cancelled without reason the order for goods of style No. 934 after seven coats of this style number were delivered, accepted and paid for. At the time when the order for these coats was cancelled, they were all in course of manufacture. The plaintiff completed them a few days thereafter, but the cost of completion does not appear. After the goods were completed the plaintiff sold them in the open market for twenty-five dollars a coat, and there Appellate Term, First Department, March, 1921. [Vol. 115. is other evidence to show that at that time the market price had dropped twenty-five to forty per cent since the making of the contract. Upon this testimony the trial justice gave judgment for the plaintiff for the full contract price of the goods which he had tendered to the defendants and for the difference between the contract price and twenty-five dollars, which he fixed as the market price of the goods of the style numbers which the defendants had cancelled. Upon this appeal the only point that requires serious consideration is whether the learned trial justice applied the proper measure of damages. Previous to the enactment of article 5 of the Personal Property Law, popularly known as the Sales Act, there can be no doubt but that the plaintiff could have brought an action to recover the contract price of the goods which he manufactured in accordance with his order and tendered to the defendants. "When the vendee of personal property under an executory contract of sale, refuses to complete his purchase, the vendor may keep the article for him and sue for the entire purchase price; or he may keep the property as his own and sue for the difference between the market value and the contract price; or he may sell the property for the highest sum he can get and after crediting the net amount received, sue for the balance of the purchase money." Ackerman v. Rubens, 167 N. Y. 408. The right of the vendor under an executory contract of sale to tender the goods to a vendee and to sue for the entire purchase price upon the refusal of the vendee to accept and pay for them, and thus in effect compel a specific performance of the contract, has never been recognized in many jurisdictions, and even in this state is now limited under the provisions of section 144 of the Personal Property Law. The drafters of the Sales Act undoubtedly intended to codify the gen Misc.] Appellate Term, First Department, March, 1921. eral rules applicable to contracts of sale and so far as possible, to make them uniform in the various jurisdictions. Section 144 contains the provisions which are applicable to an action for the price of goods, and it would seem that under that section an action for the price can be maintained only in three cases. First, where under a contract to sell or a sale, the property in the goods has passed to the buyer; second, where the price is payable on a day certain irrespective of delivery or of transfer of title; third, where the goods cannot readily be resold for a reasonable price and the provisions of section 145, which regulates actions for damages for non-acceptance of the goods, are not applicable. In the present case the contract contains no term making the price payable on a day certain irrespective of delivery or of transfer of title, nor does it appear that the goods cannot be resold for a reasonable price, or that the provisions of section 145 are not applicable. There can, therefore, be no action for the price under the Sales Act unless the property in the goods has previously passed. Section 100 of the Personal Property Law provides the rules for ascertaining the intention of the parties as to the time the property in the goods is to pass to the buyer, unless a different intention appears. Rule 4, subdivision 1, seems the only rule which is applicable to the present case. That rule provides that "where there is a contract to sell unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made," Appellate Term, First Department, March, 1921. [Vol. 115. The seller by tendering delivery of the goods after they were manufactured undoubtedly appropriated the goods tendered to the contract, but unless that appropriation was made with the buyer's assent, express or implied, it was ineffective to pass property in the goods. It may be that if the contract could be regarded as a contract to manufacture specially for the defendants, such assent to an appropriation after the goods have been manufactured in accordance with the contract might be implied, but in the present case it would seem that the contract is the ordinary contract for the sale of unascertained or future goods by description. The description is apparently the style number designed and ordinarily manufactured by the plaintiff, and it is not shown that they are not suitable for sale to others in the ordinary course of the seller's business. No materials were furnished by the defendants to be incorporated in the goods when made and the plaintiff could comply with his contract by tendering goods which he might have manufactured for the general purposes of his business. Under these circumstances I cannot find that any assent on the part of the defendants to the appropriation of the goods can be implied. It would seem to follow, therefore, that the plaintiff's sole right of action, upon the record, as it stands, of the first cause of action, is one for damages for nonacceptance of the goods, and the measure of damages in such action is controlled by subdivision 3 of section 145 of the Personal Property Law. In this regard I have not overlooked the statement of the Appellate Division of this department in the case of Gourd v. Healy, 176 App. Div. 464, that this statute " is merely declaratory of the common law as it theretofore existed." That statement is entirely accurate in regard to the question then under consideration by the |