Bencoe v. Christianson

Headnote

Contract — sale of sugar for export — to be delivered “ F. O. B. N. Y.”— when direction to deliver sugar at storage warehouse instead of on steamer a sufficient variance from contract to warrant its cancellation.

Bencoe v. Christianson, 191 App. Div. 99 , affirmed.

Appeal from a judgment, entered March 15, 1920, upon art order of the Appellate Division of the Supreme Court in the first judicial department, overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment in favor of defendants upon a dismissal of the complaint by the court at, a Trial Term. Plaintiffs purchased from defendants 3,500 kilos of granulated sugar for export, terms “ net cash, in bond f. o. b. N. Y.” Plaintiffs having failed to furnish the name of the steamer or shipping instructions defendants notified them that unless same were furnished before a certain date they would consider the contract canceled. Plaintiffs thereupon directed defendants to deliver sugar to “ New York Dock Co. Robinson Stores.” This defendants declined to do as not in accordance with the terms, of the contract. The trial court held as a matter of law that the plaintiffs were not allowed to provide for a different place of delivery than on board the steamer as provided in the contract, and, therefore, that the plaintiffs had violated their contract and could not recover in this action.