Trowbridge v. Harrison 50 N.Y. St. Rep. 525

Henry Trowbridge et al., Resp'ts, v. Charles C. Harrison et al., App'lts.

(New York Superior Court,

General Term,

Filed January 3, 1893.)

Contract—Sale op goods to arrive.

Plaintiffs, in September, sold to defendants sugar to be imported. The contract was made with direct reference to the course of plaintiff’s business and the sugar was to be shipped on plaintiffs’ vessels in due course of business. No time of delivery was specified, and subsequently a request to insert the words “ prompt shipment” was refused. Part of the sugar arrived and was accepted, but upon being notified that another vessel was loading in the latter part of October, defendants refused to receive the cargo under the contract, and on arrival in November refused to accept it. It appeared that the round trip of vessels might occupy forty to sixty days. Held, that there was proper dispatch in shipment and that defendants were not justified in their refusal to accept.

Appeal from judgment in favor of plaintiffs entered upon report of a referee.

The facts appear in the opinion of the referee, which is as follows:

Henry B. Howland, Referee.—Plaintiffs and the defendants made contracts on the 19th and 20th of September, 1889, by which the plaintiffs sold to the defendants a quantity of Barbadoes sugar and also a quantity of Antigua sugar. The parties had dealt for several years together, and the defendants were, therefore, well acquainted with the plaintiffs’ method of doing business.

The plaintiffs used their own sailing vessels, sailing from New York city, to import the sugars, and it is evident from the testimony that the contracts in question were made with direct reference to the course of the plaintiffs’ business, and that the sugars were to be shipped upon the plaintiffs’ vessels in the due course of their business.

The contracts were separate contracts; the one for the Barbadoes sugar named the vessels by which the sugar was to arrive. The contract for the Antigua sugar provided that the sugar was to arrive per vessel or vessels to be named, to be shipped. On the •day following the making of the two contracts, the contract as to the Antigua sugar was amended to correspond with the amount of sugar which the plaintiffs actually had for sale, they having found that a larger quantity of sugar was included in the contract than they placed to be sold.

The defendants subsequently requested, on the 23d of September, a change to be made and the words “ prompt shipment ” to be inserted in the contract, and this change the plaintiffs declined to make.

The Barbadoes sugar arrived on the vessels named. Part of the Antigua sugar was received and accepted by the defendants, and the plaintiffs notified the defendants on the 10th of October that the ship “ Atlantic ” was at Barbadoes and was expected to go to Antigua to take the balance of the Antigua sugar. On the 15th the plaintiffs further notified the defendants that the il Atlantic ” would complete the shipment of Antigua sugar; the sailing date to be advised later. And again on the 21st of Octo*526her notified them that the “Atlantic” was loading at Antigua, and on the 26th of October defendants notified the plaintiffs that they could.not consent to receive the cargo of Antigua sugar by the “ Atlantic ” under the contract of the 19th of September. The sugar arrived on the 14th of November, was duly tendered to the defendants, who declined to receive it; it was sold for their account, and claim is now made for the difference between the contract price and the amount realized, which difference amounts to the sum of $3,865.60.

It is claimed that in the absence of any specified time when the Antigua sugar should be shipped that it should have been shipped within a reasonable time, and the question to be determined is, whether the Antigua sugar, which came by the “Atlantic,” was shipped within a reasonable time.

It is clear that the contracts were made with full knowledge of the course of business of the plaintiffs; that they were unable to name the vessels that should bring the Antigua sugars, and that it was understood that they should come by the first vessels of the plaintiffs which could bring them. That understanding was made clear to the defendants by the refusal of the plaintiffs to modify the contract a very short time after it was made, and then, if at any time, was the opportunity given to repudiate the contract, if it was not satisfactory to the defendants by reason of any misrepresentation.

It appears by the testimony that the length of a voyage from New York to the Windward Islands is from ten to twenty days, depending upon wind and weather; that ordinarily twenty days might be occupied in loading, and the length of the voyage home would be governed by the same conditions as the outward voyage, and that the round trip might occupy from forty to sixty days.-

It is apparent also from the correspondence that the plaintiffs expected vessels that arrived sooner than the “Atlantic” to bring the Antigua sugars, and some of it was brought by other vessels and accepted by the defendants.

The “Atlantic ” sailed from New York on the 11th of September on her outward voyage. It was fair to suppose that she might have reached Antigua and loaded and returned sooner than she actually did. It was by no means certain that she would bring the sugar, but that other vessels might do so. In case other vessels did not bring the Antigua sugar she was to do so. There seems to have been no unnecessary delay, and as full dispatch on the part of the plaintiffs as they could make. They notified the defendants as soon as they learned themselves of the position of their vessels, and of the cargoes they would bring, and there is no evidence of any bad faith or any misrepresentations to induce the making of the contracts. It was for the plaintiffs’ interests to send the cargoes on as soon as possible, and if the defendants had made more particular inquiries as to the position of plaintiffs’ vessels they would have learned all about them. They waited until some days after they were informed of what vessels the Antigua sugars were to come by before refusing *527to accept them, and it seems to me there was proper dispatch, and that no defense exists to the claim by reason of the failure of the plaintiffs to bring the sugars within a reasonable time, considering the ability of the plaintiffs and the knowledge of the defendants as to their course of business, and I, therefore, give judgment for the plaintiffs.

John F. Parsons, for app’lt;

Arnoux, Bitch & Woodford (Henry Stoddard and Haley Fislce, of counsel), for resp’ts.