Iasigi v. Rosenstein — 3 A.D. 500

Majority

p. 500

Joseph A. Iasigi, doing Business by the Name of Iasigi & Co., Respondent, v. Clara Rosenstein, doing Business by the Name of C. Rosenstein & Co., Appellant.

Headnote

Contracts — ocea/n ca/rriers—to deliver by “ March, steamer shipment from Turkey” ; — it does not imply a. direct shipment where there is a custom to transship at Liverpool.

Where a custom or usage exists in a trade, parties are presumed to have con- • tracted with reference to it.

In an action brought to recover damages alleged to have -been caused by the refusal of the defendant to accept certain seed, it appeared that the broker’s note described the delivery of the seed as “March steamer shipment from Turkey,” and contained an indorsement giving the name of the steamer as Aleppo; that the seed was shipped in March ■ on board the steamer Aleppo ', ■ which sailed from Rodosto, in Turkey, to Liverpool where' the seed was transshipped to the Aurania, by which it was brought to New York, and that the defendant refused to accept it because it. was not brought by the Aleppo. Held, that the objection was untenable ;

That the plaintiff was entitled to show that no steamer ran from Rodosto to New York direct, but that it was the custom of the trade to transship goods at Liverpool and forward them from there to New York, and that this custom was known in New York,

Appeal by the defendant, Clara Rosenstein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 19th day of April, 1894, upon the verdict of a jury rendered after a trial at the Rew York Circuit, and also from an order entered in said clerk’s office on the 19th day of April, 1894, denying the defendant’s motion for a new trial made upon the minutes.

This action was brought to recover the damages alleged to have been sustained by the plaintiff by reason of the refusal of the defendant to accept certain seed which the plaintiff alleges is the seed mentioned in the contract set forth in the complaint. .

The first cause of action set forth in the complaint is based upon the following contract, viz.: ... ■

“ R ew. Yore, • March 14, ’ 81.

“ Sold for ojc Messrs. Iasigi & Co., of Boston, to Messrs. C. Rosenstein & Co., five hundred bags good merchantable quality Smyrna Canary Seed, March. Steamer shipment from' Turkey, at two and three quarter (2f) cents per lb. gross weight for net, less 1 p. c. for

p. 501

cash in 10 days from date of delivery on dock in New York. No tare, no charge for bags. Goods to be taken from dock on arrival of Steamer when ready for delivery. Damaged bags, if any, to be taken at fair allowance. Name of Steamer to be given soon as known.

. “ GEORGE M. BLACK,

“Broker, ■

“ 60 New St.”

[Indorsed]: “Accepted, New York, March 16 th, 1887. 0. Rosenstein & Co.”

■ [Second Indorsement] : “Name of Steamer reported, ‘Aleppo.’ No arrival, no sale. New York, April 22, ’87. ’ George M. Black, Broker.”

The second cause of action set forth in the complaint is based upon a contract similar in form to the first one ; and the third cause of action is based upon a contract similar in form to the other two, except that the name of the steamer, as the Aleppo from Rodosto, was mentioned in the body of the contract.

The seed was shipped in March on board the steamer Aleppo, sailing from Rodosto in Turkey, but was transshipped at Liverpool from that vessel to the Aurania, which brought it to New York, where it was tendered to the buyer, who refused to accept or pay for the same, on the ground, that the contracts provided that the plaintiff should deliver to the defendant, on dock in New York, certain seed to be shipped from Turkey by steamer Aleppo; and there being no provision in the contracts that • the merchandise should be transshipped at Liverpool and arrive in New York by some steamer other than the one named, the arrival of the steamer Aleppo in New York with seed of the quantity and quality provided for in the contracts was a condition precedent to the plaintiff’s right to recover from the defendant for a refusal to accept the seed tendered.

The action was tried before the court and a jury, and resulted in the dismissal of the complaint. An appeal was thereupon taken to the General Term, where the judgment was affirmed, but on appeal to the Court of Appeals the judgment of the General Term was reversed. A second trial resulted in a verdict for the plaintiff for the full amount claimed, and from the judgment' entered thereon this appeal, is taken. '

p. 502

H. Arlington, for the appellant.

David Keane, for the respondent.

The main question in this action was settled by the Court of Appeals on a former appeal (see 141 N. Y. 414 ), in which it was held that under the contract as made a shipment by the steamer Aleppo 'from Rodosto was all that was required; that it was no paft of the contract that the goods should arrive at the port of Hew York by the same steamer; and the mere fact that,the goods were transshipped at Liverpool and brought from Liverpool to Hew York by another steamer did not necessarily allow the defendant to refuse the goods upon their arrival. The court say: “ The steamer of arrival is not identified. It may or. may not be the one first mentioned, or another and different one. If it must mean the Aleppo and can mean no other, the General Term were right; but if it may mean the steamer of arrival even though not the Aleppo,. then there is an ambiguity, a doubt about, the real contract intention, which may be solved by proof of custom and usage. I think that is the truth. * * ■* There are two elements provided* First, the property bought is to be 1 good merchantable Smyrna canary seed; ’ and second, ‘ March steamer shipment from Turkey/ That ends the description of what was agreed to be bought, for the note goes at once to the- question of price and other details of the contract. Plainly, for some reason, the parties contented themselves with saying simply ‘ shipment from Turkey,’ and omitted' to add to Hew York or other words indicating a. direct or unbroken voyage, and this omission occurs in the formal description of the goods, and where it .was not to be expected if a direct voyage was meant. * * * The moment it is shown that there was no steamer sailing direct from Turkey to Hew York; that all importations from that country by steam came first to Liverjoool and were there transshipped, and that the goods bought if transported by steam must come and could come in no other way, and that both parties and their broker knew the fact, all doubt and ambiguity disappears.”

It was proved upon the trial that the Cunard. Steamship Company dispatched a steamer from Turkey during the month of

p. 503

March, 1887, which sailed from Rodosto in the month of March for Liverpool; that no steamer was dispatched from Turkey taking goods directly for Mew York during the month of March, 1887; that the usual and customary mode of shipment of merchandise by steamer from Rodosto to Mew York is by transshipment at an intermediate port, and that that intermediate port is Liverpool, England; that no steamer took goods from Rodosto for Mew York during the year 1887; that the goods in question were shipped by the Aleppo to Liverpool and transshipped at Liverpool to the steamer Aurania, and delivered in Mew York; that no steamer ever took goods from Rodosto to Mew York direct, but always by transshipment for Mew York at Liverpool, and that the steamer Aleppo was used on regular routes between Rodosto and Liverpool. It was also proved that the goods in question arrived in Mew York by the steamer Aurania, and were tendered to the defendant, who refused to receive them on the ground that the goods had not arrived in the vessel named in the contract. It was proved by the broker in Mew York who made the sale that the custom in the shipment of goods from Turkey was by steamer to England and to transship them from there to Mew York. ' The defendant offered evidence tending to show that when a contract is silent as to whether a shipment shall be direct or indirect, a direct shipment was intended. But there is no evidence to show that during the year 1887 there was any line of steamships sailing from Turkey to Mew York, or that in the spring of that year it was possible to procure a direct shipment by steamer from Rodosto to Mew. York.

The court left it to the jury to say whether it was the custom or usage .of the trade in Turkey to carry goods to Liverpool, or an intermediate port, and there transfer them to a steamer for Mew York, and instructed them that if they found such custom and usage to exist the parties to the contract are to be presumed to have contracted with regard to that usage, an'd if they found that such usage was not known to the trade in Mew York, then they should find a verdict for the defendant; but if the jury should find that the usage and custom existed, and that it was known in Mew York, then the parties are presumed to have entered into this contract with reference to that custom, and the plaintiff was entitled to

p. 504

recover.- We think that under the decision of the Court of Appeals that whs, if an error, one in favor of- the'- defendant, arid that the finding- of the jury was sustained by -the-evidence. '

There were-several exceptions to.lthe admission of evidence; but none, of them appears to be of substance. ' -The plaintiff was-allowed to read an admission; made ■ by the- defendant upon a ■ former trial,- and tó this defendant excepted. This is, however, immaterial, as all of -the facts included in. the admission were proved upon the trial and' were- not disputed. ' The other exceptions, do -noL require notice. ; v -

.We think no error was- committed upon- the trial, and'-that the judgment should be affirmed, with costs.

. Van Brunt, - P. L, Barrett, Rumsey and ■ O’Brien, Jj.j concurred.

Judgment, affirmed, with costs.

Cases cited

Iasigi v. Rosenstein 141 N. Y. 414 N.Y. 1894-02-27 p. 502