
    Marie Joseph Ennemond Morel et al., Respondents, v. John N. Stearns et al., Appellants.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Sale — Failure of vendors to deliver within the time specified therefor in a contract of which time was of the essence — Effect of the phrase “deliverable April & May 1900”.
    In an action brought by the plaintiffs, residents of France, on a contract, made in New York city by a former local agent for the sale and delivery of six bales of silk to the defendants, to recover damages of them for a breach consisting in their refusal to take the bales when tendered for delivery, it appeared that the contract itself was silent as to the place and method of delivery, that a manner of dealing had grown up between the parties in pursuance of which the plaintiffs came under and recognized a duty to make an actual physical delivery of the bales at their own expense, by truckmen of their own selection, and at a place to be designated by the defendants, that the bales were easily portable and were “ deliverable April & May 1900 ”, that they were shipped from Genoa, Italy, by the SS. Trave, that a firm, named Jar dine, Matheson & Co., representing the plaintiffs as their agents in New York city at the time of the transaction in suit, received in that city the invoice for the bales on May 28, 1900 and, on May 29, at 6:55 P. M. mailed a letter to the defendants advising them of the receipt of the shipping documents for the bales, asking for shipping instructions and stating that the bales were on the SS. Trave “ due to-day or to-morrow ”, that May 30 was Decoration Day during which the offices of the plaintiffs, the defendants, and the steamship company were closed, that the Trave arrived at her dock in Hoboken, N. J. on May 29 but was unable to make her entry at the custom house until May 31, that no deliveries could be made from her until after such entry, that about 9 A. M. on May 31, the defendants received the above letter and at once replied that they wished the bales delivered on that day at their warehouse in New York city, specifying its location, and, expecting delivery, kept their warehouse open on that day later than usual, that Jar dine, Matheson & Co., a few hours after receiving the defendants’ letter fixing the time and place of delivery employed a public truckman and instructed him to get the bales from the ship and deliver them to the defendants, that no delivery was tendered until June 1, when the defendants refused, upon such tender, to receive the bales and on the ground that the contract time for delivery had expired. It further appeared that during the term of the contract the market price of such silk had declined materially.
    Held, that under the wording of the contract, making the bales “ deliverable April & May 1900 ”, the plaintiffs were bound to deliver not later than May 31 and that, as they had not done so, the defendants were justified in refusing to receive the bales on June 1, the facts showing that time was of the essence of the contract and that the failure to deliver was not due to any act, or omission to act, on the part of the defendants.
    Appeal by the defendants from a judgment,of the City Court of the city of New York, entered in favor of plaintiffs upon the verdict of a jury, and from an order denying the defendants’ motion for a new trial.
    The action was brought to recover damages for an alleged breach of an executory contract for the sale and delivery of six bales of silk, the breach consisting in the defendants’ refusal to receive the bales when offered for delivery on June 1, 1900. The contract was made in New York city by a local agent of the plaintiffs who had preceded Jar dine, Matheson & Oo. in that capacity.
    Hitchings & Palliser (Hector M. Hitchings, of counsel), for appellants.
    Norwood & Dilley (Carlisle Norwood, of counsel), for respondents.
   Scott, J.

This action arises out of the alleged failure of the plaintiffs to deliver six bales of silk to the defendants within the time specified in the contract between the parties. The plaintiffs are residents of France. . The defendants are manufacturers, having a place of business in the city of New York and factories at Petersburg, Va., Williamsport, Pa., and Elmira, N. Y. The plaintiffs were represented in New York by the firm of Jar dine, Matheson & Co., as their agents. The contract, which was in writing, was made in the city of New York and provided for. the sale of a quantity of Italian silk, deliverable April & May 1900.” The contract was entirely silent as to the place and method of delivery. The silk came to this country packed in bales and all of it, except so much §s was comprised in the six bales in controversy, duly arrived and was delivered and accepted. The shipments, prior to this one, had been made in small lots,. and the practice had grown up between the parties that, when the plaintiffs’ agents received the shipping documents, they notified the defendants of their receipt and asked for shipping instructions “ so that we can deliver on arrival,” and in each previous instance the defendants had responded by directing that the bales be shipped to one of the defendants’ factories by the Old Dominion steamship line. The plaintiffs’ agents would thereupon at their own expense and by truckmen of their own selection deliver the bales to the steamship company in the city of New York. As all of these deliveries were well within the time fixed by the contract the particular question involved in this action did not arise. It seems to be conceded by both parties, and is undoubtedly true as a matter of law, that the contract was one calling for strict fulfillment as to the time of delivery, and that the defendants were justified in refusing to accept delivery after May, 1900, unless they had, by some act or omission, prevented the delivery within the time specified. On the first appeal to this court a judgment in favor of the defendants, entered upon the direction of a verdict, was reversed because it did not sufficiently appear from the evidence that the defendants had not rendered strict delivery impossible by delay-in answering the request of plaintiffs’ agents for the designation of a place of delivery. Upon the next, trial a verdict was directed in favor of the plaintiffs, and the judgment entered thereon was re-' versed because the court had undertaken to decide questions of fact which should have been left to the jury. Upon . the record now presented there is really no controverted question of fact. Before considering the circumstances attending the attempted delivery of the goods in controversy it will be useful to consider the situation of the parties and their respective rights and obligations. As has been said, the contract called for delivery during April and May. The market price of silk had materially declined since the contract was made, and it was, therefore, to the plaintiffs’ interest to make delivery, and to the defendants’ interest that delivery should not be made. If the six bales should be tendered before the end of May the defendants would be bound to receive them, but they were under no moral or legal obligation to accept a tender of delivery after the end of that month. The goods were of a portable character, easily handled, and, in the absence of any designation in the contract as to the place of delivery, it was the plaintiffs’ duty to make such delivery at the defendants’ place of business in the city of New York, or at such other place, not less accessible, as the defendants might designate. La Farge v. Rickert, 5 Wend. 189. The mere arrival of the goods at a wharf within the limits of the port of New York certainly did not constitute delivery to the defendants. The course of business between the parties respecting prior shipments is chiefly significant as evidencing a recognition by the plaintiffs’ agents that their duty to make delivery was not fully performed when the goods arrived in port, but that it still remained incumbent upon them to- make an actual, physical delivery at some place designated by the defendants. This was no concession on their part, but merely an acquiescence in the obligation cast upon them by the law. The last six bales, over which this controversy has arisen, were shipped from Genoa, Italy, on May seventeenth, by the steamship Trave, which arrived at her dock at Hoboken, N. J., on May twenty-ninth. The invoice appears, by a stamp upon it, to have been received by Jardine, Matheson & Co., the plaintiffs’ agents, on May twenty-eighth. On the f ollowing day, May twenty-ninth, at six fifty-five o’clock in the evening, the latter firm mailed a letter to the defendants advising them of the receipt of the documents for the six bales of silk and asking shipping instructions, stating that the bales were on the S. S. Trave due to-day or to-morrow ” (May twenty-ninth or thirtieth). May thirtieth,- known as Decoration Day, was at that time, by law, a dies non only so far as concerned the maturity of negotiable paper and the transaction of business in the public offices of the State and county. It was, however, generally observed as a holiday by business houses, and partially observed by the post-office, which undertook to make but one delivery on that day. The places of business both of Jardine, Matheson & Co. and of the defendants were closed, as well as the offices of the steamship company, and the ship was unable to make her entry at the custom-house until May thirty-first, -no deliveries of cargo being made until after such entry. In consequence of the observance of May thirtieth as a holiday the defendants did not receive the notification from Jardine, Matheson & Co. until nine or half-past, nine o’clock on the morning of May thirty-first, the last day allowed by the contract for the delivery of the silk. They at once replied, sending by a special messenger a notification that they wished the silk delivered on that day at their warehouse on Greene street, in the city of New York. Some hours afterward Jardine, Matheson & Oo. employed a public truckman and instructed him to get the goods from the ship and deliver them to the defendants. In anticipation of a possible delivery the defendants kept their warehouse open later than usual, but no tender of delivery was made until June first, when the defendants refused to receive the goods on the specific ground that the time for delivery under the contract had expired. Clearly the plaintiffs were in default, and it is equally clear that they were placed in default by no act or omission to act on the part of the defendants. It was the defendants’ right to demand delivery at their warehouse, and the fact' that they had directed prior deliveries to be made at the dock of the Old Dominion Steamship Company did not bind them to receive this particular silk at the same place. Even if it had so bound them, there is nothing to show that the change in the place of delivery affected in any way the time of delivery. The same causes, which prevented delivery at the defendants’ warehouse on May thirty-first, would have equally prevented delivery at the Old Dominion dock, and these causes were not of the defendants’ making. Nor are the defendants chargeable with having caused the delay because they failed to keep their office open on May thirtieth, so as to receive the letter of Jardine, Matheson & Co. on that day. Nothing would have been gained if they had kept open and had received the letter. The office of Jardine, Matheson & Co. was also closed, so that no reply could be given to them; the ship had not entered at the custom-house, and no deliveries were made on May thirtieth. On the other hand, it is not easy to acquit the plaintiffs’ agents of negligence. They must have known the terms of the contract, the fall in the price of silk, and the consequent importance of strictly performing the contract, and they must have been aware of the general observance of Decoration Day as a holiday, because they closed their own office on that day. If they received the invoice on May twenty-eighth, why did they delay notifying the defendants until late in the afternoon of May twenty-ninth? And after they had received delivery instructions early on the morning of May thirty-first, why did they delay several hours in sending a truckman for the goods? To these questions no satisfactory answer is found in the case. But it is unimportant whether the plaintiffs or their agents were negligent or not. The fact is that they did not make delivery within the time specified in the contract, and the only question is whether'their failure so to deliver was due to any act or omission to act on the part of the defendants. It is clear that it was not. On the contrary the defendants acted with all proper and reasonable promptitude. It follows that the defendants’ motion to dismiss the complaint should have been granted, and, because it was not, the judgment must he reversed and a new trial granted, with costs to the appellants to abide the event.

Ereedman, P. J., and Truax, J., concur.

Judgment reversed and new trial granted, with costs to appellants to abide event.  