Corrigan v. Sheffield

Brady, J.: The contract for the delivery of rags from the plaintiff is contained in the letter of the defendants, which is as follows: “ Sheffield Mills, ) “ Saugerties, N. Y., July 16, 1872. ) “Mr. Patrióle Corriga/n : “Dear Sir.— Yours of the 12th is received. You may send us the 20 bales No. 1. We should prefer to have them after the 1 st of August, as that is our time for taking account stock, and we cannot conveniently discount our paper till after that time. “ Yours truly, etc., “ J. B. SHEFFIELD & SONS. “We should prefer to receive no more stock till after lsi of August.” There is nothing in the letter and nothing in the proof given showing at what time the rags were to be paid for, but the statement in the letter referring to the first of August, namely, “ we cannot conveniently discount our paper till after that time,” shows that it was to be paid for at or about the tune of its delivery, as they wished [229] it, namely, after the first of August. The delivery of ten bales before the first of August, by carrier, was as to such quantity clearly for the convenience of the plaintiff, as shown by his letter. “ I have this day shipped you ten bales. I had to do it to make room. I will ship the other ten bales, as you ordered, or at any time sooner that you may want them.” The letter of the defendant was for twenty bales, and was an entirety. When such a contract exists and the payment is to be made on delivery, no action will lie until , the whole is delivered. The delivery of a part of the goods, under such a contract, will give no right of action against the vendee. (Soloman v. Neidig, 1 Daly, 200; Bruce v. Pearson, 3 Johns., 534; Kein v. Tuppper, 52 N. Y., 553.) If the contract in this case be regarded as silent as to the time of payment, then by the law the payment is to be made when the goods are delivered. The bales sent to the defendants and taken to their mill, were not so taken with knowledge that they were part of .the purchase from the plaintiff. The letter of advice from him to the defendants was not received until after the fire, by which they were burned. It may be said, in addition to this, that the defendants did not engage absolutely to accept the twenty bales before the first of August. They expressed a preference for a delivery after that day, and it was the duty of the plaintiff either to say that they must accept at once or to wait until the time suggested. The defendants gave the reason why they did not wish the goods delivered at once, and the reason related to the payment for them. The plaintiff understood this, and when he sent the ten bales said not only that he had to do it to malm room, but in addition that he would send the other ten at the tíme they were ordered or sooner. If he had not accepted the terms of the letter as to the dehvery after the first of August, it was not necessary to give any reason for the dehvery of the ten bales. The effect of that act, accompanied by the letter, was to’ place the goods at the mercy of the defendants. They could receive or could reject them either because it was a dehvery in part or because they were not to be sent until after the first of August. The destruction of the goods on the day they were put in the defendants’ mill prevented the exercise of this right, and without fault or laches on the part of the defendants. If, therefore, we apply the rule as to the entirety of the contract or the evident understanding of the parties [230] in reference to the time of the delivery as an absolute right, the goods were at the risk of the plaintiff, and not at that of the defendants, under the circumstances stated. If the contract for the sale and delivery of goods be an entirety, and part of the goods are delivered or put in transit for delivery, and are lost or destroyed by fire, no action accrues to the seller against the vendee. The cases cited illustrate this rule and they control our judgment to be pronounced. The verdict should, for these reasons, be set aside and a new trial ordered, with costs to abidé the event. Davis, P. J., concurred.