Mee v. McNider — 16 N.Y. St. Rep. 732

Majority

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George B. Mee et al., Resp’ts, v. James McNider, App’lt.^[1]

(Court of Appeals,

Filed June 5, 1888.)

Headnote

Contract—Construction of—When delivery complete and buyer

TAKES RISK OF VOYAGE.

The plaintiffs sold to the defendant “ five hundred (500) hags Prime

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Fermented Babia Cocoa at 59s. per cwt., C. F. and I., by steamer to N. Y.,” etc. The letters “C. F. and I." meaning “to include cost, freight and insurance." Held, that under the contract the defendant took the risk of the voyage. That the shipment by steamer was an effectual appropriation of the cocoa to the buyer, and that at that moment the agreement on the vendor’s part was executed.

Appeal from a judgment of the supreme court, general term, first department, affirming a judgment in favor of the plaintiff entered on the verdict of a jury directed by the court at the New York circuit.

Adolph L. Sanger, for app’lt; Wheeler H. Peckham, for resp’ts.

The agreement between the parties was in these words:

“New York, January 3, 1882.

“Sold for account of Mee, Billings & Co., London, to James McNider, five hundred (500) bags Prime Fermented Bahia Cocoa at 59s. per cwt., C. F. and I., by steamer to N. Y., buyers to furnish cable credit or pay banker’s commission.

“ARTHUR R. KYTE,

“Broker.”

The answer admits that the letters “ O. F. and I.,” mean “to include cost, freight and insurance,” and the question is, who, under the contract took the risk of the voyage ? The relation between the parties was that of vendor and vendee. The former, residing in London, undertook to sell, and the latter, residing in New York, undertook to buy the article named. _ The price is fixed at fifty-nine shillings per cwt., and this is made up of the cost, the freight and the premium of insurance. Thus the purchaser deals with the matter in gross, and not in detail, transacts the various branches of the business with one person instead of three, fixes his liability at a lump sum, and in case of loss will recover the amount of his interest under the policy.

On the other hand, the vendor is to be reimbursed for his advances at the same time and in the same manner that he receives payment for the goods. Only one condition is to be performed, that of shipment by steamer. The case differs in that respect from Ireland v. Livingston, cited by the appellant from Benjamin on Sales( § 590, ed. of 1875), where payment of freight was postponed until the arrival of the goods and the balance of the price, “on having handed to him the charter party, bill of lading and policy of insurance,” which might well happen before the arrival of the vessel. But even that case throws the risk of damage at sea upon the buyer, for he engaged to pay a fixed price in consideration of the shipment in a prescribed

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manner, and except the freight, without reference to its actual delivery. In the case before lis there seems no ambiguity. On the part of the vendor the shipment by steamer was an effectual appropriation of the cocoa to the buyer, and at that moment the agreement on the vendor’s part was executed. The plain obligation of the purchaser, as defined by the written contract there attached, and he was bound to accept and pay for the cargo at the price named and in the manner specified. It necessarily follows-that injury to the cocoa during the voyage was no excuse for non-performance ; and as the amount due, if anything, was conceded, there was no evidence which required the submission of the case to the jury.

It is, however, argued by the appellant that the trial court erred in overlooking the circumstance that “no bill of lading and no policy of insurance had been delivered to the defendant.” If there was default in that respect, the point was not taken at the trial, the only contention upon the facts being “that the goods were not in prime condition-, were not merchantable when they came,” and a contention upon the law that in consequence of that defect the defendant was relieved from liability.

The judgment appealed from should be affirmed.

All concur, except Peckham, J., not sitting.