By the Gourt, Miller, J.
The first question presented in the case at bar arises upon the motion for a nonsuit, made by the defendant at the close of the plaintiff’s testimony and renewed upon the final close of the evidence on both sides. This motion was based on several grounds, which I will proceed to examine and consider.
It is said that there was no sale and delivery of the property by the plaintiff to the defendant, and that the most which can be claimed for the evidence is a contract of sale— an executory agreement, to be completed at some future period by the delivery of the machine to the defendant and payment by him of the purchase price, to the plaintiff.
The question whether there was a sale, must depend, to a very great extent, upon the fact whether there was a delivery; and both questions are somewhat blended together.
In reference to a sale; it appeared upon the trial, that there was a contract, by which the plaintiff agreed to sell the machine to the defendant, and that there was a delivery, and an acceptance of a portion of the machine, under the contract. According to the plaintiff’s evidence, that portion of the machine not delivered was taken by him to a machine [532]*532shop at the request of the defendant, for the purpose of being cleaned, which, by the agreement between the plaintiff and the defendant, was to be done at the joint expense of both parties; each one agreeing to pay one half of the expense thus incurred. After the portion of the machine left was cleaned, it was paid-for, taken by the plaintiff, and tendered and offered to be delivered to the defendant. I do not understand that it was a part of the agreement that the plaintiff should return that part of the machine, left for repairs, to the defendant, or that he was under any positive obligation to do so. Whatever was done by the plaintiff, after taking a portion of the machine to the machine shop, was a voluntary act, on his part, and 'more than was actually required at his hands by the terms of the contract. He merely conveyed the property to the machine shop for the benefit of the defendant, without in any way affecting the validity of the sale. After he had done this; he had nothing more to do with the defendant. The payment of one- half the price of cleaning the machine was an act not necessarily connected with the defendant, as the amount to be paid would be so paid to the mechanic who had done the work.
I am inclined to think that under the circumstances there was a valid sale of the machine, and that the facts of the case do not show simply an executory contract for a sale where something remained to be done on the part of the vendor, before the delivery of the property, within the principle laid down in the cases to which our attention has been called. (See McDonald v. Hewett, 15 John. 349; Russell v. Nicoll, 3 Wend, 112; Downer v. Thompson, 2 Hill, 137; Evans v. Harris, 19 Barb. 416.) What remained to be done, by the plaintiff, here ? He merely took the machine to be repaired, at the request of the defendant, the bargain having been consummated before this was done. The whole contract had been completed before this. The defendant had agreed to • purchase, received a part of the thing purchased, and consenting and agreeing and thereby virtually directing [533]*533the plaintiff to take the other part to he repaired, and accepting the whole. The act of taking the machine, by the plaintiff was for the benefit of the defendant, and his act. It was a delivery to the plaintiff, as his agent. After property has been once sold and delivered, no doubt the vendor may, by agreement of the parties, have it in custody as the servant, agent, carrier or bailee, and with or without compensation, and may convey it to another place without affecting the sale. (19 Barb. 427.) The plaintiff, after the acceptance of the whole machine by the defendant, merely occupied the position of an agent, in conveying it to the machine shop and returning it to the defendant. He had really nothing more to do with it. The authorities referred to by the defendant’s counsel were cases where some act remained to be done before the sale was actually consummated. There was neither an actual or a constructive delivery. In McDonald v. Hewett, (15 John. 349,) Spencer, J. lays down the following rule: “ The distinction between executory and executed contracts is well defined. The former conveys a.chose in action, the latter a chose in possession,” (citing several authorities.) “ The decisive test, in cases of this kind, is, to consider at whose risk the subject of the contract was.” Applying this rule; can it be fairly claimed that the plaintiff merely conveyed a chose in action when he had delivered a portion of the property to the defendant, and had at his request, and as his agent, conveyed the balance to another party ? I think not. Heither can it be insisted, with propriety, that the machine or any part of it, was held at the risk of the plaintiff. If it had been destroyed by fire, the loss would manifestly have fallen upon the defendant.
It should also be observed that the doctrine in regard to contracts being executory where some act remains to be done, mainly relates to cases where no portion of the"'property has been delivered.
In reference to a delivery, it is conceded that a portion of the machine was actually delivered to the defendant. The [534]*534balance being'in the hands of the plaintiff for the defendant’s benefit, and by his request, I think was virtually delivered to the defendant. It was under his control, subject to his order, and belonged to him. This was a sufficient delivery. At least a portion was delivered, and that would be enough to make out a sale.
As there was a delivery of at least a portion of the machine, the objection that the contract was void by the statute of frauds, is not available.
It is further urged that the referee had no power to allow the amendment which he did, to the complaint, for it substantially changed the cause of action. If the views I have already expressed are correct, then the amendment would be of no sort of importance, being entirely unnecessary. As the amendment would not cause any injury to the defendant, if unnecessary, the point taken would be of no consequence. But I think the referee did not exceed his authority, in granting the amendment, even if it was in any way important. The amendment did not introduce a new cause of action entirely distinct from that under which the plaintiff first sought to recover, (The Union Bank v. Mott, 18 How. 507,) and is provided for by the code.
By section 273 of the code referees have the same power to allow amendments to pleadings as the court upon trial, and upon the same terms, and with the like effect. Section 169 of the code declares that no variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. And whenever it shall be alleged that the party has been so misled, that fact must be proved to the satisfaction of the court, and in what respect; and thereupon the court may order the pleading to be amended upon such terms as shall be just. By section 170, when the variance is not material, the court have power to direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.
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By the Gourt, Miller, J.
The first question presented in the case at bar arises upon the motion for a nonsuit, made by the defendant at the close of the plaintiff’s testimony and renewed upon the final close of the evidence on both sides. This motion was based on several grounds, which I will proceed to examine and consider.
It is said that there was no sale and delivery of the property by the plaintiff to the defendant, and that the most which can be claimed for the evidence is a contract of sale— an executory agreement, to be completed at some future period by the delivery of the machine to the defendant and payment by him of the purchase price, to the plaintiff.
The question whether there was a sale, must depend, to a very great extent, upon the fact whether there was a delivery; and both questions are somewhat blended together.
In reference to a sale; it appeared upon the trial, that there was a contract, by which the plaintiff agreed to sell the machine to the defendant, and that there was a delivery, and an acceptance of a portion of the machine, under the contract. According to the plaintiff’s evidence, that portion of the machine not delivered was taken by him to a machine [532]*532shop at the request of the defendant, for the purpose of being cleaned, which, by the agreement between the plaintiff and the defendant, was to be done at the joint expense of both parties; each one agreeing to pay one half of the expense thus incurred. After the portion of the machine left was cleaned, it was paid-for, taken by the plaintiff, and tendered and offered to be delivered to the defendant. I do not understand that it was a part of the agreement that the plaintiff should return that part of the machine, left for repairs, to the defendant, or that he was under any positive obligation to do so. Whatever was done by the plaintiff, after taking a portion of the machine to the machine shop, was a voluntary act, on his part, and 'more than was actually required at his hands by the terms of the contract. He merely conveyed the property to the machine shop for the benefit of the defendant, without in any way affecting the validity of the sale. After he had done this; he had nothing more to do with the defendant. The payment of one- half the price of cleaning the machine was an act not necessarily connected with the defendant, as the amount to be paid would be so paid to the mechanic who had done the work.
I am inclined to think that under the circumstances there was a valid sale of the machine, and that the facts of the case do not show simply an executory contract for a sale where something remained to be done on the part of the vendor, before the delivery of the property, within the principle laid down in the cases to which our attention has been called. (See McDonald v. Hewett, 15 John. 349; Russell v. Nicoll, 3 Wend, 112; Downer v. Thompson, 2 Hill, 137; Evans v. Harris, 19 Barb. 416.) What remained to be done, by the plaintiff, here ? He merely took the machine to be repaired, at the request of the defendant, the bargain having been consummated before this was done. The whole contract had been completed before this. The defendant had agreed to • purchase, received a part of the thing purchased, and consenting and agreeing and thereby virtually directing [533]*533the plaintiff to take the other part to he repaired, and accepting the whole. The act of taking the machine, by the plaintiff was for the benefit of the defendant, and his act. It was a delivery to the plaintiff, as his agent. After property has been once sold and delivered, no doubt the vendor may, by agreement of the parties, have it in custody as the servant, agent, carrier or bailee, and with or without compensation, and may convey it to another place without affecting the sale. (19 Barb. 427.) The plaintiff, after the acceptance of the whole machine by the defendant, merely occupied the position of an agent, in conveying it to the machine shop and returning it to the defendant. He had really nothing more to do with it. The authorities referred to by the defendant’s counsel were cases where some act remained to be done before the sale was actually consummated. There was neither an actual or a constructive delivery. In McDonald v. Hewett, (15 John. 349,) Spencer, J. lays down the following rule: “ The distinction between executory and executed contracts is well defined. The former conveys a.chose in action, the latter a chose in possession,” (citing several authorities.) “ The decisive test, in cases of this kind, is, to consider at whose risk the subject of the contract was.” Applying this rule; can it be fairly claimed that the plaintiff merely conveyed a chose in action when he had delivered a portion of the property to the defendant, and had at his request, and as his agent, conveyed the balance to another party ? I think not. Heither can it be insisted, with propriety, that the machine or any part of it, was held at the risk of the plaintiff. If it had been destroyed by fire, the loss would manifestly have fallen upon the defendant.
It should also be observed that the doctrine in regard to contracts being executory where some act remains to be done, mainly relates to cases where no portion of the"'property has been delivered.
In reference to a delivery, it is conceded that a portion of the machine was actually delivered to the defendant. The [534]*534balance being'in the hands of the plaintiff for the defendant’s benefit, and by his request, I think was virtually delivered to the defendant. It was under his control, subject to his order, and belonged to him. This was a sufficient delivery. At least a portion was delivered, and that would be enough to make out a sale.
As there was a delivery of at least a portion of the machine, the objection that the contract was void by the statute of frauds, is not available.
It is further urged that the referee had no power to allow the amendment which he did, to the complaint, for it substantially changed the cause of action. If the views I have already expressed are correct, then the amendment would be of no sort of importance, being entirely unnecessary. As the amendment would not cause any injury to the defendant, if unnecessary, the point taken would be of no consequence. But I think the referee did not exceed his authority, in granting the amendment, even if it was in any way important. The amendment did not introduce a new cause of action entirely distinct from that under which the plaintiff first sought to recover, (The Union Bank v. Mott, 18 How. 507,) and is provided for by the code.
By section 273 of the code referees have the same power to allow amendments to pleadings as the court upon trial, and upon the same terms, and with the like effect. Section 169 of the code declares that no variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. And whenever it shall be alleged that the party has been so misled, that fact must be proved to the satisfaction of the court, and in what respect; and thereupon the court may order the pleading to be amended upon such terms as shall be just. By section 170, when the variance is not material, the court have power to direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.
[535]*535Albany General Term,
September 19, 1864.
Under any circumstances, I think that there was no material variance between the complaint and the proof, and it was clearly within the power of the referee to grant the amendment, or disregard the variance. (Catlin v. Gunter, 1 Kern. 374. Cobb v. West, 4 Duer. 38. De Peyster v. Wheeler, 1 Sandf. 719. Hawkins v. Appleby, 2 id. 421. Hart v. Hudson, 6 Duer, 294. Purchase v. Mattison, Id. 587. Rogers v. Verona, 1 Bosw. 417.)
Bor was any error committed by the referee in refusing to allow the defendant to serve an amended answer to the complaint as amended. It was entirely unnecessary. The affidavit of the defendant did not show that he was misled, or disclose facts showing wherein he was thus misled. It merely established that it was the opinion of the defendant, and of his counsel, that an amendment of the answer and further evidence would be necessary. I think it should have gone a little further, and have shown the facts relied upon, in addition to those which had been clearly established, and proven. It should have been proven, to the satisfaction of the referee, that he was taken by surprise, and the affidavit should have specified, with reasonable precision and certainty, the nature of the evidence which the amendment to the complaint rendered material and necessary.
It is difficult to see how the party could have been misled in consequence of the amendment to the complaint. There was no pretense that the facts could be materially varied, and if not, there was no necessity of an amendment of the answer, or of further evidence.
The other questions raised after the amendment was granted are covered by the discussion already had, and it is not necessary to enlarge upon them.
I discover no error in the proceedings before the referee that was injurious to the defendant, and think that the judgment should be affirmed, with costs.
Peekham, Miller and Ingalls, Justices.]