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Bidwell v. Overton

26 Abb. N. Cas. 402 Court N.Y.C.P. English

Delivered by Pryor, J.

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p. 402
BIDWELL v. OVERTON.
N. Y. Common Pleas, General Term;
January, 1891.

Headnote

1. Sale.] The time and mode of shipment is an essential part of a contract for the sale of merchandise to be shipped at a time and place, and in a manner specified, because it identifies the subject-matter of the contract, and in an action for a refusal to accept such goods, plaintiff must prove shipment according to agreement in order to recover.
2. Evidence; bill of lading.] If a bill of lading is competent evidence of time and mode of shipment against a person not a party to it, it nevertheless cannot be admitted without due proof of its authenticity and execution.
3. Pleading ; detiial on informatio?ii] An averment in an answer that defendant has not knowledge or information sufficient to form a belief as to the fifth paragraph of the complaint, is only an avowal of lack of knowledge and information as to the paragraph itself and not of the statement of facts contained in it, and is insufficient to raise an issue.
4. The samel] A mere declaration in an answer that defendant is informed and believes that a certain allegation in the complaint is untrue, and that he could so prove it on the trial by way of defense, is insufficient as a traverse of such allegation.
Appeal from judgment in favor of plaintiffs.
Action by Charles E. Bidwell and James M. French against John B. Overton to recover damages for defendant’s refusal to accept a shipment of pepper under the following bill of sale :
New York,June 13, 1889.
Sold for account of Messrs. Bidwell and French, Agents for Boustead & Co., Singapore.
To Mr. John B. Overton :
About 25 tons heavy Acheen pepper, class A; weight 4 lbs. 11 oz. per 1-2 peck ; dust not over 3 per
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cent, net 12 3-8 cts. gold per lb., landing weights ; tare 2 per cent, payable cash, less 1-2 per cent., on delivery ex vessel. Sound and damaged to be taken, but should the said damaged be sufficient to constitute a claim under a marine policy, with avérage of 10 per cent, sound pepper only to be delivered. To be shipped during June-August, 1889, by steamer from Straits direct or via Europe for this port. No arrival, no sale. Any question arising under this contract not otherwise arranged for to be settled by arbitration.
Accepted.
John R. O’Shaughnessy,
John B. Overton. Broker.
Frank E. Blackwell, for appellant.
Carlisle Norwood, Jr., for respondents.

As to the law of the case, there is no controversy between the parties ; but it is agreed that, to entitle plaintiffs to a recovery, it was necessary for them to show that the pepper was shipped when and in the mode required by the contract, and that it was not adulterated by more than three per cent, of dust. These were the only questions of fact litigated on the, trial; and we are of opinion that the evidence was sufficient to make a firima facie case for the plaintiffs as to the quality of the pepper, and, therefore, that the verdict in their favor is conclusive upon that issue.

But, in respect of the other question, namely, whether the pepper was " shipped during June-August, 1889, by steamer from Straits,” we find no evidence upon the issue, except the recital in the bill of lading, the validity of which as proof of the fact is presently to be discussed.

Upon tender defendants refused to accept the pepper ; and that they had the right so to refuse, if the stipu

p. 404
lation .as to time and mode of shipment were not fulfilled, is an unimpeachable proposition of law. Time and mode of shipment, as settled between the parties,, is not an immaterial accessory, affecting only the method of performance ; but is of the substance of the agreement, because identifying its subject matter. If a specific article be sold, it is quite unimportant when or in what manner it may be transported to the buyer ; for, in any event, he gets the thing for which he bargained. An executory contract for an indefinite sale of merchandise identifies no subject of the sale ; but a predicate of the time and mode of shipment, conclusively ascertains and distinguishes it. A contract merely for the sale of so much pepper and of such a quality, is executed by the delivery of any pepper of the given kind and quantity ; but a tender of pepper shipped in March, by sailing vessel from Liverpool, is not a delivery of the pepper agreed to be shipped “ during June-August by steamer from Straits,” and the purchaser is not bound to accept such delivery though it be of pepper the same in quality as that stipulated in the contract.

“ The seller is limited to the description of the goods in the contract, and the buyer is not bound if there be a variance even in an unimportant particular.” Hence, a. contract for iron to be shipped by the plaintiffs would not be fulfilled by the delivery of iron shipped by another; for, “however unimportant the circumstance might be, it entered into the contract of the parties, and the defendant could not be required to take any other-iron” (Cunningham v. Judson, 100 N. Y. 179 , 189). “ The words as to shipment are part of the description of the subject matter ;” and hence a contract for iron to be shipped in December, 1879, or January, 1880, is not performed by a delivery of iron shipped in February, 1880, (Hill v. Blake, 97 N. Y. 215 ; Welsh v. Gossler, 89. Id. 540).

It was incumbent, of course, on plaintiffs to establish.

p. 405
the fact that the pepper tendered to defendant was the pepper they had agreed to deliver; and this they could do only by proof that the pepper offered was shipped at the time, in the manner, and from the place provided új the contract. Such proof appears in the Straits bill of lading ; but defendant objected to the admission of the paper, and the question is, did the court err in ruling it to be competent evidence ? Exhibiting the paper 10 a witness, counsel for plaintiff asked : “ Is this the Straits bill of lading ?” to which the witness responded, “ That is the Straits bill of lading.” Thereupon counsel offered the paper in evidence ; but defendant’s counsel interposed with the questions : “ Did you see the bill of lading signed ? Do you know anything about the name signed at the foot of the bill of lading ? Did you e\rer see that person write his name ?” These inquiries being answered in the negative, defendant’s counsel objected to the admission of the paper, on the specific ground that it had not been proved; but the court received it, and to the ruling defendant duly excepted.Assuming, though not conceding, that the paper, to which the defendant was in no sense a party or privy, might be competent evidence against him, argument is not necessary to show that the proof is altogether insufficient to establish the execution and authenticity of the document; and so that its admission was error. And of this the learned trial judge, on reflection, became conscious ; for afterwards he declared that he received the paper only to identify it as the one of which the witness had spoken, and not “ as evidence of any fact.” The paper being avowedly incompetent evidence of the fact in controversy, and being admitted only for another and immaterial object, cannot now be recognized in the case for a purpose which was expressly repudiated by the court on the trial. Todo •so would be a juggle upon justice. Eliminate, then, this bill of lading, and the case is totally destitute of
p. 406
evidence to show a shipment in compliance with the terms of the contract.

It results, therefore, that the court erred in denying defendant’s motion to dismiss the complaint, and the judgment must be reversed, unless another ground urged by. respondents in support of the judgment be tenable.

Apparently aware of the defect in their proof, respondents contend that the due shipment of the pepper -was not in issue upon the pleadings. As to the shipment, the allegation of the complaint is (paragraph V), “ that in the month of July or August, 1889, plaintiff having purchased ” the pepper, “ shipped the same by steamer via Europe, in said month to which the answer responds that, “ defendant has not knowledge or information sufficient to form a belief as to the fifth paragraph of the complaint.”

In Baylis v. Stimson ( 110 N. Y. 621 ), the court of appeals intimated that an averment of want of knowledge or information sufficient to form a belief as to the truth of unspecified allegations in designated paragraphs of an answer, was not an effective denial of those allegations. But here is something still more loose and indefinite, namely, an avowal of lack of knowledge or information as to the paragraph itself, and not of the statements of fact in the paragraph. For this form of pleading there is no warrant either in the rules of the common law, or in the provisions of the Code; and the averment is plainly insufficient to raise an issue. “ It is a fundamental rule of pleading that if a party wishes to traverse a fact, he must deny it in plain and unambiguous terms ” (The Pfandler Co. v. McPherson, 20 N. Y. St. Rep. 473 ).

But appellant contends that the defect is repaired by the subsequent averment in the answer, that “ Defendant is informed and believes that the' said goods were not shipped ^during the months of June,

p. 407
July, August, 1889, nor until September in that year, in compliance with the terms and stipulations of the aforesaid agreement, all of which this defendant will prove on the trial of this cause by way of defense.” A denial may be on information and belief (Bennett v. Leeds, 110 N. Y. 150 ); but here is no denial at all, but a mere declaration that the pleader is informed and believes that a certain allegation in the complaint is untrue, and that he will so prove on the trial by way of defense. This, too, is insufficient as a traverse of- the allegation in the complaint of the due shipment of the goods; and as no issue was raised as to the fact, it stood admitted, and plaintiffs were absolved from the obligation of proving it. We accept this conclusion the more readily since the justice of the case is clearly with the respondents.

Judgment affirmed, with costs.

Allen, P. J., and Bischoff, J., concurred.

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