
    The Cochran Cotton Seed Oil Co., Resp’t, v. Theodores Haebler et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed October 24, 1892.)
    
    Sale—Delivery.
    Plaintiff, a foreign corporation, sold to defendants certain barrels of oil for October delivery in New York. It made three shipments, which were received and paid for without objection as to carrier or place of delivery. The fourth shipment was made by the same carrier, and arrived in Sew York in the afternoon of the last day of the month, but defendants did-not learn of its arrival until the following day. They made inquiries at noon of the last day, but left no instructions to inform them if it arrived, later on that day. Held, that the first three shipments and their acceptance made an agreement as to the carrier and place and method of delivery, and that the delivery of the last lot was good.
    Appeal from judgment on verdict directed for plaintiff.
    
      R. B. Honeyman, for resp’t; M. P. Stafford, for app’lts.
   Vas Wyck, J.

The plaintiff, whose place of business is at Rock Hill, S. C., sold on September 15, 1891, to defendants,, whose place of business is in New York city, 200 barrels of cotton seed oil for October delivery in New York at twenty-nine cents per gallon, free on hoard, weight guaranteed.

The plaintiff, from time to time prior to October 22d, shipped, to defendants in accordance with this contract three lots, of fifty barrels each, by the Pennsylvania railroad, a common carrier selected by it and not objected to by defendants, and at the time-of each of such shipments notified defendants by mail of the same and enclosed a bill of lading of the same, and also drew upon defendants for the amount of such shipment, which drafts were always paid upon presentation. The plaintiff had given no other notice, and this was the only effort made by them in reference to the delivery, and yet the defendants had received and accepted these three first shipments and paid for them without complaint on their part, either as to the carrier or the place and method of delivery in New York. The dealings and transactions between the parties as to the delivery of these three first lots certainly made an agreement as to the carrier, the place of delivery in New York and the method thereof, and all that plaintiff was called upon to do in refererice to the delivery of the last lot of fifty barrels was to ship them at Rock Hill by the same carrier and immediately mail notice of the shipment with the bill of lading, as it had previously done upon each of the three first shipments, and draw upon defendants for the amount of the invoice. Of course the same must during the month of October have reached the same-pier at which the other lots had been delivered and accepted.

All of this was done and this shipment reached such pier in New York on October 31st, and if defendants did not learn of the same until the next day, it was either their own fault or that of the carrier, who had ceased to be the agent of the- plaintiff the moment the oil reached its destination, free on board and on time. It would seem that defendants had realized that it was their duty after receiving this notice and bill of lading to make inquiry as to the arrival of the shipment, for we find them on that day, at. twelve o’clock, noon, at the carrier’s pier asking if the same had arrived, and upon being informed that the car had not yet arrived, they left no instructions for the carrier to inform them if the car. should arrive later on that day, and certainly the plaintiff, who-was eight hundred miles away and knew nothing of the delay,, could not have so instructed the carrier.

The plaintiff made the same delivery of this last lot as it had of the three others, and the delivery was good as to all. Pacific Iron Works v. R. R. Co., 62 N. Y., 272. Both parties requested the court to direct a verdict and neither requested to go to the jury. The verdict instructed for plaintiff is not against the weight of evidence and the judgment is affirmed, with costs.

Ehrlich, Ch. J., and McCarthy, J., concur.  