Goldenberg v. Cutler

Putnam, J.: Plaintiff sued on April 19, 1917, for breach of a written contract made October 30, 1916, with Morris Goldenberg, her assignor, for sale to plaintiff of five tons Chinese or Japanese antimony, November shipment from China, or Japan, at thirteen and one-eighth cents per pound, duty paid, f. o. b. New York, subject to British government regulations. [490] The complaint alleged that defendants had refused and neglected to give the name of the steamer on which the antimony was to have been shipped; but averred on information and belief that such November shipment from China and Japan had reached ports in the State of New York. It also alleged tenders of the agreed price to defendants on March 23 and April 18, 1917, which tenders had been refused. The answer admitting the sale contract, alleged a tender by defendants of the material mentioned in the complaint, which the plaintiff’s assignor had refused to accept. Defendants sought to show that such an offer of antimony had been made on January 5 or 6, 1917. This, however, was denied by plaintiff’s assignor, who testified that defendants had been putting him off by saying that the antimony had not arrived. Defendants put in evidence a copy of a letter to plaintiff’s assignor dated December 15, 1916, referring to the contract and stating that “ we expect to deliver same from the steamship ‘ Tsuyama Maru ’ ” and requesting him to furnish them with consumer’s guarantees, according to the British government regulations. Plaintiff in rebuttal introduced three bills of lading by the Japanese steamer Tsuyama Maru from Shanghai, all dated October 28, 1916, for large quantities of- antimony shipped and transported via the Panama canal to New York, to be deliverable to the order of the British Consul, or his assigns. These bills of lading being dated October 28, 1916, standing without contradiction or explanation, taken with defendants’ letter naming that steamer, indicated that the antimony in defendants’ possession in January was from these shipments of October twenty-eighth. There was a further issue as to plaintiff’s compliance with the British government regulations during the war period, which were intended to secure a guaranty satisfactory to the British Consul that the consumer would not export the antimony otherwise than to the United Kingdom or to a British possession. A guaranty to this effect by the Berger Metal Manufacturing Company was produced March 23, 1917, as part of the plaintiff’s tender at that time. These merchants had specified a “ November shipment.” Shipment means that the goods have been delivered to the [491] carrier and his bill of lading therefor issued. The time and place of such shipment are regarded as a warranty, that is, a condition precedent, upon the failure or non-performance of which the other party may repudiate the whole contract. (Norrington v. Wright, 115 U. S. 188, 203; Mora y Ledon v. Havemeyer, 121 N. Y. 179.) Where the contract specifies a November shipment, the buyer is not held to accept one on any date in October. (Bowes v. Shand, L. R. 2 App. Cas. 455; 35 Cyc. 178.) Appellant, therefore, was entitled to a ruling substantially as requested, that if the antimony tendered to plaintiff’s assignor was not from a November shipment, defendants had not made a tender under their contract. Hence there should be a new trial, with costs to the appellant to abide the event. Jerks, P. J., Rich and Blackmar, JJ., concurred; Mills, J., read for affirmance.