Majority
p. 492Lomax Littlejohn and Frederick T. Parsons, Composing the Firm of Littlejohn & Parsons, Respondents, v. Daniel A. Shaw and David S. Manny, Composing the Firm of D. A. Shaw & Co., Appellants.
Headnote
Bmdence—opinions of experts, from a subsequent examination, that cubes of a dye stuff were separate when shipped.An.expert may testify to an opinion that, when gamhier was shipped from Singa- • pore to New York, the cubes into which it had been formed were free in the hags which contained them, that is to say, were separate from each other, and may reach this opinion from an examination of the gamhier after its arrival in New York.
p. 493
Appeal by the defendants, Daniel A. Shaw and another, from a judgment of the. Court of Common Pleas for the city and county of New York in favor of the plaintiffs, entered in the office of the clerk of said court on the 28th day of October, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of November, 1895, denying the defendants’ motion for a new trial made upon the minutes.
The action was brought to recover damages for the refusal by the defendants to accept and pay for twenty-five tons of No. 1 cube gambier, sold by the plaintiffs to the defendants.
The contract of sale was in writing in the form of a bought and sold broker’s note, wherein it was provided that the sale was of about twenty-five tons No. 1, cube gambier, to be shipped free in bags, tare two pounds per bag, February, March, April, 1893, sail shipment at Singapore for New York, deliverable here ex-vessel, usual good merchantable quality and condition at six and one-quarter cents per pound, payable net cash on delivery, in gold or its equivalent. Sound, to be taken, damaged,' if any to be rejected on dock at the time of delivery. No arrival, no sale. It was dated March 4, 1893-. By shipped free it was meant that the cubes into which the gambier had been formed were free in the bags which contained them, that is to say were separate from each other.
The complaint alleged that the property arrived in New York about September 13,1893, and that the plaintiffs were then ready to-deliver it to the defendants at the time agreed on, and tendered such delivery, and that the defendants refused to accept the same or to pay for it pursuant to the agreement.
The answer denied the sale, arrival and tender of the delivery, and refusal to accept the property, and alleged that the defendants were ready to carry out the terms of the contract on their part, but-that the plaintiffs utterly failed to perform the conditions of the con- , tract on their part, or to tender or deliver property of the kind, quality and condition specified in the contract.
It appeared upon the trial that upon the arrival of the property in New York the plaintiffs sent to the defendants, under the date of September 13, 1893, a delivery order for the property. The defendants returned the order to the plaintiffs with the indorsement thereon, “ Rejected — not good merchantable,” and wrote the plain
p. 494
tiffs, under the- date of September 13, 1893, that they rejected the property for two- reasons: 1. Because not good, merchantable quality. 2. Because not in good merchantable condition. Thereafter, under the daté of September 14, 1893, the -plaintiffs' wrote the defendants,, in reply to -the rejection, that the plaintiffs declined ' to-accept such rejection and requested that the matter be left to arbitration as customary, the. losers to pay the expensés of such arbitration, and asking for a prompt reply. Ho reply was received by the plaintiffs to this letter,
Thereafter, and under the date of September 26,1893, the plaintiffs notified the defendants that the plaintiffs would sell the propérty for the account and risk of the defendants at public auction by Boudett & Dennis, auctioneers, on the 3d of October, 1893, at twelve o’clock, noon, and would- hold the defendants responsible under the contract for any difference between the contract price and the amount realized on the sale over and above the costs and expénses of the. sale and the charges for storage and insurance.
The court submitted the case -to the jury, , charging them that the plaintiffs’ right to recover depended upon whether the property was shipped at the time agreed upon, free in bags,, and-was- of good merchantable quality and condition at t-hé time delivery thereof was-tendered to and rejected by the defendants.
There was evidence as to these questions- of fact given on the trial.. There was a motion made to dismiss- the complaint at the close of the plaintiffs’ evidence, but no motion to dismiss or nonsuit at the close of ■ all the evidence, no objection to the submission of the case to the jury, and no substantial exception to the charge- as made. ■
The jury rendered a verdict for the plaintiffs for the damages claimed, $451.33, with interest.
Francis A. Winslow, for the appellants.
Frederic G. JDow, for the respondents.
It seems to us that there was evidence sufficient to authorize the jury to find in favor of the plaintiffs upon the' questions- submitted to them. The evidence with reference to- the property having been
p. 495
shipped free, was not given by witnesses who were present and examined it before shipment. Such evidence would hardly be expected. Some evidence was, however, given by the opinion of an expert, that, judging from its condition after its arrival here, he should say it was, in his opinion, shipped free, and there was considerable evidence as to its condition after its arrival here. This was enough to justify a finding of the fact of a shipment free. No evidence was given on the part of the defendants to contradict this proof, except evidence as to its condition after its arrival here.
The finding by the jury was authorized upon the evidence taken altogether. There was evidence by the bill of lading as to the time of the shipment. There was considerable conflict in the evidence as to the quality and condition of the property after its arrival here, and down to the time of the sale at auction.
The facts to be found from all this evidence were properly submitted to the jury. Various exceptions were taken by the defendants to the admission of the evidence of experts as to the quality and condition of the property.
The witnesses were shown to be experts as to such property, and their opinions as to its quality and condition were, therefore, clearly competent. There was but a single exception to the charge and that was without merit.
The judgment and order appealed from should be affirmed, with costs.
Van Brunt, P. J., Patterson O’Brien and Ingraham, JJ., concurred.
Judgment and order affirmed, with costs.