Lewis v. Hojer — 41 N.Y. St. Rep. 617

Majority

p. 617

George Lewis et al., App’lts, v. George W. Hojer, Resp’t

(New York Common Pleas, General Term,

Filed December 7, 1891.)

Headnote

1. Contract—Construction or.

An agreement to do an act “ at once” is not satisfied by its performance within a reasonable time.

2. Same.

Defendant accepted a draft payable to plaintiffs in consideration of the shipment to him “at once” of certain segars which plaintiffs held as security for a debt of the drawer. In an action on the draft, Held, that plaintiffs did not have a reasonable time in which to ship the segars, but that they were to be shipped simultaneously with the acceptance of the draft.

Appeal from a judgment for defendant entered upon the verdict of a jury, and from an order denying plaintiffs’ motion for a new trial on the ground that the verdict was against the weight of evidence, in an action brought by plaintiffs as payees to recover the amount of a draft accepted by the defendant, the latter resisting payment on the ground of failure of consideration predicated upon the non-performance of a promise, made in consideration of his acceptance of the draft, to supply him with a quantity of segars from the proceeds of the sale of which he was to reimburse himself for the liability incurred.

A. R. Dyett, for app’lts; Herbert F. Andrews, for resp’t.

Wilt & DeMilt, manufacturers of segars, of Tallahassee, Florida, being at the timé indebted to plaintiffs, who were engaged in business as bankers at the same place under the firm name of B. C. Lewis & Sons, on January 31, 1884, made their draft on the defendant, of the city of Hew York, as drawee, payable ninety days after date, and delivered it to plaintiffs upon the understanding that when accepted by the defendant the draft should be applied in extinguishment of the drawers’ existing indebtedness. Defendant at the time was not indebted to, nor did he hold any funds belonging to the drawers, and to induce him

p. 618

to accept the draft, H. J. Wilt, one of the drawers, on February 1st, wrote him as follows :

“We made the draft on you yesterday at 90 days for $4,000 as previously advised, which we trust you will do us the favor to accept. We now have to offer the following propositions as a means of enabling us to run our factory until matters get straightened out. We will ship you at once, say 45,000 segars, value say $3,500, to go to cover your acceptance above, and each week will ship you, say 10,000 segars, value from $500 to $700, against which we would want to draw, say 90 days, for $200 to $300 to cover our current expenses. You to accept such weekly shipments to pay any deficiency on your $4,000 acceptance, after this is settled you to render an account monthly and remit proceeds by certified check or certificate of deposit on N. Y. Bank to us at this place. If this receives your approval please advise us at once and oblige, Yours, etc.,

“ H. J. Wilt, for Wilt & Be Milt.”

This letter was received by defendant and with knowledge of its contents he, on February 6th, accepted the draft when it was presented to him by the Importers & Traders’ Bank of New York, to whom it had been forwarded by the plaintiffs for acceptance and collection. The segars were not shipped to defendant at any time, and on February 25th he notified the Importers & Traders’ Bank in writing to the effect that because of the failure to make the promised shipment up to that time he would refuse to pay the draft at maturity.

The draft having matured, this action was brought to enforce defendant’s liability as acceptor. For his defense he asserted that at the time of the making and delivery of the draft the payees had the custody, or control, of the drawers’ merchandise stock under a bill of sale, or assignment, to them as collateral security for a then existing indebtedness, and that the payees promised in consideration of defendant’s acceptance of the draft to release a sufficient quantity of segars from the operation of such bill of sale or assignment to enable the drawers to comply with the terms of Wilt’s letter of February 1st to the defendant, but that after such acceptance was made the payees refused to abide by their promise, whereby the drawers were prevented from making the promised shipment, and the defendant failed to receive the means of reimbursement as agreed.

The holding of a bill of sale or assignment of the effect mentioned, and the making of the promise to release the segars for the purposes of shipment to defendant, as well as any knowledge on their part that the shipment of the segars constituted the consideration for defendant’s acceptance, were denied by plaintiffs; but the defendant supported his assertions by sufficient evidence. No objection was made to the competency of the evidence, and upon careful examination of the record before us we are not inclined to say that the evidence introduced to substantiate the plaintiffs’ denials so preponderates that a verdict for the defendant is necessarily against the weight of the evidence.

p. 619

The motion for a new trial upon that ground was, therefore, properly denied.

Upon the trial plaintiffs, among other things, claimed that, assuming that they had promised to release and ship the segars in consideration of defendant's acceptance of Wilt & De Milt’s draft, and that the jury would so find, they were entitled to a reasonable time within which to cause the shipment to be made; that it appeared in evidence without contradiction that the ordinary time required for the carriage of freight from Tallahassee to New York was from ten days to two weeks, and that because of this fact the delay from February 6th to 25th was not unreasonable, and that the defendant’s notice of February 25th that he would not pay the draft at maturity relieved plaintiffs from the duty of shipment, or tender of shipment, thereafter.

Consistently with these claims plaintiffs’ counsel requested the court to charge that plaintiffs were entitled to a reasonable time for the purposes of such shipment, and that under the evidence the delay from February 6th to 25th was, as matter of law, not unreasonable. The court did charge that shipment of the segars within a reasonable time would have been a sufficient compliance with the contract of acceptance of Wilt & De Milt’s draft; but declined to say, as matter of law, that the delay mentioned was not unreasonable, submitting, however, the question of unreasonableness of the delay to the jury to be determined by them as one of fact. To this refusal to charge and submission counsel duly excepted, and these exceptions present the principal and only remaining grounds urged by appellants for reversal.

The brief of the able counsel for appellants is almost exclusively devoted to the discussion of these alleged errors, but a proper consideration of the evidence will be convincing that the question whether or not the delay was unreasonable was not germane to the case, and that any instruction to the jury concerning it was wholly irrelevant. No error can be predicated on the refusal of the court to charge concerning an irrelevant proposition, and for that reason appellants’ exception to the court’s refusal to charge that the delay was not, as matter of law, unreasonable, is without merit. Kissenger v. N. Y. & H. R. R. Co., 56 N.Y., 538 .

The point was not raised by counsel for the responent, but the consideration of alleged errors, urged in behalf of a new trial, requires the appellate court to inquire whether, assuming the alleged errors complained of to be such, they were prejudicial to the appellant and might have influenced the result of the trial to his injury; and if upon such inquiry it should appear that such was not the effect of the alleged errors, and if it still more appears that the appellants received the only advantage to be gained therefrom, the errors will not present ground for reversal. Shorter v. The People, 2 N. Y., 193 ; Tracey v. Altmyer, 46 id., 598, 604; Appleby v. Erie County Bank, 62 id., 12, 18; Carman v. Pultz, 21 id., 547; Briant v. Trimmer, 47 id., 96; Priebe v. Kellogg Bridge Co., 77 id., 597; Jones v. Brooklyn Life Ins. Co., 61 N. Y., 79 , 87; Moody v. Osgood, 54 id., 488, 494; Thompson on “ Charging the Jury,” § 121, and cases there collated.

p. 620

Subjecting the alleged errors urged by appellants to the test stated, it will tie apparent that plaintiffs were not entitled, upon the evidence, to a determination, either as matter of law, or of fact, that the delay in shipment of segars from February 6th to the 25th was not, under the special circumstances of the case, an unreasonable one; and that when the trial judge did submit that question to the jury as one of fact, the error, if such it was, was prejudicial to the defendant only, and operated most advantageously to the plaintiffs, since it allowed the latter a greater time for the shipment of the segars than had been agreed upon, and was, therefore, more favorable to the plaintiffs than the evidence warranted.

To ascertain the manner in which, and the time when, the segars were to be shipped we must turn to the letter of Wilt to defendant on February 1st, no other evidence of these matters appearing in the case. That letter plainly and unequivocally stated that in consideration of defendant’s acceptance of the draft the segars would be shipped “at once.” This did not mean that they would be shipped within a reasonable time, but that the shipment would be made with greater celerity than is ordinarily comprehended by a reasonable time. It implied that the latter would be made simultaneously with the acceptance, or at least with receipt of advice that the draft had been accepted. “ At once ” is convertible with “ prompt,” “ forthwith.” These terms in their ordinary acceptation mean “ at the same point of time, immediately, without delay, at one and the same time, simultaneously, directly (Webster’s International Dictionary “Once” p. 1002, “Forthwith,” p. 588 ; “ Prompt,” p. 1147), and are not wholly without judicial definition. In Tobias v. Lissberger, 105 N. Y., 410 ; 8 St. Rep., 43 , the court of appeals says that a contract for “ prompt” shipment was not performed by a shipment within a reasonable time, but that the shipper was thereby bound to ship with greater dispatch than in a reasonable time. So in Woods v. Miller, 39 Am., 170, the words “will fill your order immediately ” in a contract for the shipment of potatoes were held to imply readiness to ship, and evidence to show that the potatoes had been shipped within a reasonable time was pronounced inadmissible. Duncan v. Topham, 8 C. B., 225 , is authority that a promise to ship “directly” was not performed by shipment, within a reasonable time, and that reasonable time meant a more protracted delay than the parties intended by the use of the word “ directly.”

For the reasons above expressed we cannot regard the errors complained of, if such they are, as fatal to the judgment and order from which the appeal was taken.

Judgment and order affirmed, with costs to respondent.

Daly, ch. J., and Pryor, J., concur.