White v. North German Lloyd Steamship Co.

be at the risk of the shipper or the holder of the bill of lading for loss or damage not happening through the fault or negligence of the owner, master, agent, or manager of the steamer or lighter, any local customs or privileges to the contrary notwithstanding.”

Plaintiff White testified without contradiction that on the permits sent by him to the defendant railroad company, after the date “March 4th,” he added the abbreviations “A. M.” The letter accompanying those permits and addressed to the railroad company stated:

“Permits for the steamer Kaiser Wilhelm der Grosse, which can be taken alongside to-morrow afternoon or early Monday morning.”

The railroad company delivered the three car loads of apples at about 3 o’clock in the afternoon on March 4th (which was Monday) alongside the steamer designated. The defendant steamship company accepted one car load, but refused to accept the other two. The vessel was to sail the next morning, and at the time the two car loads of apples were offered it had accepted so much other freight for shipment that there was not room for them. The two car loads of apples were on the cargo list, and those in charge of loading the ship waited for them until 1 o’clock on March 4th. Because they had not arrived by that time, other freight was accepted to the exclusion of two of the car loads of apples. The plaintiffs suffered loss in consequence of their failure to ship their apples on the vessel, and sued therefor. The complaint was dismissed as against the defendant railroad company, and a verdict found against the other defendant was set aside.

The cause of action against the steamship company is for breach of contract. The relation of shipper and carrier had not yet been established between the plaintiffs and that defendant as to the two car loads of apples in question. Upon the undisputed facts in the case it is perfectly clear that plaintiffs’ contention can be sustained on no other theory. If they had based their suit upon the mere failure of the steamer to receive their goods, relying upon the law governing common carriers and defining their obligations toward the public, the case of Fowler v. Liverpool & C. Co., 87 N. Y. 190 , would be sufficiently decisive to defeat their claim. To succeed at all against the steamship company they must show a binding contract between themselves and that company obligating the latter to enter into the relationship of shipper and carrier by receiving the apples when they were tendered at 3 o’clock on March 4th. Was there such a contract?

Plaintiffs insist that there was. I am of opinion that there was not. The permits, on which plaintiffs rely, were mere instrumentalities of convenience, employed by the steamship company to facilitate the classification, distribution, and loading of the cargo. They obligated the plaintiffs in no way. They could be revoked at any time before the plaintiffs offered their goods for shipment. Until that time there could be no certainty on the part of the steamship company as to whether the apples would arrive or not, and it had no assurance that, if it should reserve space for them to the exclusion of other freight and thus be obliged to leave port without a full cargo, it would be reimbursed for its loss by the plaintiffs. At most the permits constituted an offer by the defendant steamship company to receive the apples

_ “The defendant, on Wednesday, a 10th of June, handed to the plaintiff a signed memorandum by which he agreed to sell to the plaintiff his house and garden at Croft for £800,-adding a signed P. g.: ‘Tills offer to be left over until Friday, 9 o’clock a. m. 12th June.’ On Thursday the defendant sold the property to another person, and on Friday, about 7 a. m., both the plaintiff’s agent and the plaintiff handed notices of acceptance to the defendant.”

The plaintiff thereupon brought suit for specific performance, and obtained judgment, which was reversed by the Court of Appeal; James, R. J., observing:

“There was no consideration for the promise, to whatever extent it may be considered binding, to keep the property unsold until 9 o’clock on Friday morning ; but apparently Dickinson was of opinion, and probably Dodds was of the same opinion, that he (Dodds) was bound by that promise until 9 o’clock on Friday morning. But it is settled law that this promise, being a mere nudum pactum, was not binding, and, at any moment before a complete acceptance by Dickinson of the offer, Dodds was as free as Dickinson himself.”

In the case before us the defendant steamship company waited until 1 o’clock on the last day for loading freight, and then accepted other freight in place of that of the plaintiffs, which had failed to arrive up to that time. It was under no more obligation to reserve the space until the apples arrived than was Dodds to hold his property for Dickinson. See, also, Ganss v. Guffey, etc., 125 App. Div. 760 , 110 N. Y. Supp. 176 . That it did accept one of the three car loads of apples at 3 o’clock was a favor to the plaintiffs, which may not serve as ground for punishing it for not extending additional courtesies.

As to the defendant railroad company, in whose behalf no brief was filed, I am of opinion that the dismissal of the complaint as to it was error. After the notices of arrival reached the plaintiff White, he gave clear and explicit instructions to deliver the apples to the steamer Monday forenoon, March 4th. These instructions should have been followed, and, if followed, the apples would clearly have reached the steamer in time to be taken aboard. It had no right to substitute its own judgment that delivery at any time during March 4th would do in place of those explicit directions. Mr. White’s letter accompanying the permits, sent on March 1st before 2 o’clock, clearly designated “to-morrow [Saturday] afternoon or early Monday morning” as the time when the apples should be alongside the steamer in order to be loaded. Moreover, he wrote the abbreviations “a. m.” after the

The order dismissing the complaint as to the defendant railroad company should be reversed, with costs to the appellants to abide the event, and the order setting aside the verdict for the defendant steamship company and the judgment entered thereon should be affirmed, with costs to the respondent steamship company. All concur.