Abe Stein Co. v. Robertson

On the 24th of May, 1895, the defendant entered' into a contract with the plaintiff, of which the following is a copy:

“New York, May 24th, 1895.

“Sold, for account of Messrs. L. F. Robertson & Son, to the Abe Stein Company, about 85,000 Tientsin goatskins, firsts, 1% to 2 lbs. avg., expected to arrive from China, at 22 cts. per lb. Goods to be shipped immediately by ■steamer or steamers to New York. About % of lot to be medium black haired, skins, and the remainder % white or gray haired skins, of which 40 per cent, medium hair, sixty per cent, medium to long hair. Skins to be of the usual good quality of this province. Any question of quality to be decided by selling brokers, and their decision to be final and binding on both parties. Terms net cash, and to be taken from the wharf.

“John Andresen & Son, Brokers.”

Two days afterwards it was arranged between the parties “that the usual condition of ‘no arrival, no sale’ holds true, and that the sellers are to notify the buyers upon what vessel or vessels the goods were shipped.” Subsequently the sellers notified the broker of the arrival of a portion qf the goods, which were inspected by him, but he determined that they were not of the quality prescribed in the contract. As subsequent shipments were received, they also were «examined by the broker, and he reached the same conclusion with regard to them. The plaintiff therefore refused to receive them, and brought this action for the damages which it had sustained by the failure to deliver the goods contracted for. Upon the trial there was no serious question of the amount of damages, and a verdict was ordered for the plaintiff for the amount proved, and upon which a judgment was entered. A motion was made for a new trial, which was denied, and from the order and judgment the defendant takes this appeal.

It is urged by the defendant that the contract was conditional, not only as to its performance, but as to its existence, and that because it contained the condition that, if there was no arrival of the goods, there was no sale, if the goods specified in the contract, of the quality therein prescribed, did not in fact arrive, therefore the contract was -at an end; and he based his argument for a reversal of this judgment upon that proposition, and enlarged upon it in his supplemental brief, which we have considered. It is quite true that in the case of the sale of goods already in transit, where there is no warranty that the shipment has been made, and where the fact of shipment may be uncertain, the existence of the contract itself is conditional upon the arrival of the goods of the quality which is specified in it. Shields v. Pettie, 4 N. Y. 123 . In such contracts, if the goods contracted for do not arrive, either because the vessel is lost, or for any other rea.son, without fault or fraud of the seller, the contract is at an end. Benj. Sales, § 578 et seq.; Neldon v. Smith, 36 N. J. Law, 148 , 154. But such a condition as to the existence of the contract has never been held to arise where the contract either contains a warranty that the ¡shipment had been made (Benj. Sales, § 580 et seq.), or an express agreement on the part of the seller to make the shipment within a specified time (Norrington v. Wright, 115 U. S. 188 , 6 Sup. Ct. 12 ; Bowes v. Shand, 2 App. Cas. 455). In such a case the contract becomes at once an existing contract, and the agreement as to the quality

For these reasons the judgment and order appealed from was correct, and must be affirmed, with costs to the respondent • All concur.