Cunningham v. . Judson

*189 Eael, J. If the proper construction of the contract between these parties entitled the defendant to receive iron shippéd by the, plaintiffs from Great Britain, then the judgment is right. In that event the description of the iron purchased required that it should be iron shipped by the plaintiffs, and however unimportant that circumstance might be, it entered into the contract of the parties, and the defendant could not be required to take any other iron. (Hill v. Blake, 97 N. Y. 216.) But as that circumstance is unimportant, it should riot bo importéd into the contract by a liberal construction of the language used; nor should it be put there if there is a reasonable doubt whether the parties intended it to be included in the description of the iron in reference to which they were dealing. The iron was to be Ho. 1 Eglinton Scotch pig iron, and it was to bo shipped in March from Great Britain to Hew York. These were material stipulations and sufficiently described the iron. It was immaterial to the defendant whether it was shipped by a sailing or a steam vessel, and hence the option was given to the plaintiffs to deliver iron shipped by the one or the other. The words “ for shipment ” must mean the same as “shipped” and thus we have the phrase “shipped in March, 1880, from Great Britain to Hew York, by steam or sail vessels at sellers’ option.” This may mean that the sellers were to have the option to deliver iron shipped by them, by sail or steam, or it may mean that they were to have the option to deliver iron shipped by either method in the month named. We think the latter meaning the most probable and reasonable and therefore adopt it. This iron, therefore, which was shipped from Great Britain to Hew York by sail, and which was bought by the plaintiffs while upon the vessel, answered the description prescribed in the contract and was deliverable in fulfillment thereof. It remains only to be determined whether the plaintiffs did all they were bound to do to put.the defendant in default after the iron arrived in Hew York. There is no dispute about the material facts. They are mostly to be found in the writings put in evidence. It is clear that the plaintiffs were willing and *190 anxious to perform and intended to perform on their part; and it is equally clear that the defendant, in consequence of the large decline in the price of iron, was unwilling«to perform, and did not, at any time after notification of the arrival of the iron, mean to perform. There can be no doubt that he was manceuvering to get out of a disadvantageous contract, and we must hold upon .the undisputed facts that he was not successful. The plaintiffs had control of the iron upon its arrival, which was made more complete by their final contract with the owners on the 14th of May. They could at any time make complete title to it as it came from the vessel and passed the hands of the government weighers, and then they could have delivered it to the defendant in precise accordance with the terms of the contract if he had expressed any willingness to take it. Their repeated requests for directions, and repeated offers to deliver, were sufficient to call for some action on the part of the defendant. His conduct was such as to justify them in storing the iron, and hence their offer to deliver the iron on the 1st of June, when they had paid for the iron and obtained all the necessary documents,, was ample"and complete', and placed the defendant in default. He could not then complain of delay for which he was responsible, and that the delivery was not then ex vessel which he had prevented. The court would, therefore, have been justified in directing a verdict for the plaintiffs, and there was at least error in portions of the charge excepted to ,and in the refusals to charge as requested. The judgment should be reversed and new trial granted, costs to abide event. All concur, except Danforth, J.,' who votes for affirmance on the ground stated by the General Term, and Andrews, J., not voting. Judgment reversed.