
    Bruce and Bruce against Pearson.
    NEW-YORK,
    Nov. 1808.
    If a person sends an order to a merchant, to send him a particular quantity of goods on certain terms of credit, and the merchantsends a less quantity of goods, at a shorter credit; and the goods sent are lost by the way, the merchant must bear the loss, for there is no contract, express or implied, between the parties.
    THIS was an action of assumpsit, for goods sold and delivered. The cause was tried at the last sittings in NewTork, before Mr. Justice Van Ness.
    
    On the 11th December, 1805, the defendant;, who resides at Albany, wrote a letter to ,the plaintiffs,, who arc merchants in the city of New-Tork, as follows :
    “ Albany, 11th December, 1805.
    
      Gent.
    
    Should yo.u find it perfectly .agreeable to yourselves, (not otherwise,) you can .send .me by any sloop, provided you think the river will keep open, the goods I have no,ted at foot, and payable the 15th May next. If you think .the time ioo long, you need not send them.”
    The goods mentioned were, “ 6 hogsheads rum ; 1 hogshead sugar ; 1 pipe gin ; 1 pipe "brandy ; 4 quarter-chests hyson-skin tea ; 20 or 40 smalfboxes pipes, if low ; 10 barrels of codfish.”
    The plaintiffs, on the 21st December., 1805, shipped on board of a sloop, for the defendant, “ 3 hogsheads rum; 1 pipe brandy,; 2 chests tea,; 1 hogshead -sugar, and 1 pipe of gin.” At the bottom of the bill were these words ; “ at three months : interest after, till paid.”
    They also wrote to the defendant, as follows :
    “ Dear Sir,
    
    “ Your much esteemed favour of the 11th inst. we only received on the 19th. We were much at a loss to know how to act; we, however, have calculated to .risk the getting up, and have reduced the order, and shipped per the Fair Play, as on the other side.”
    The vessel having the goods on board, (the river being much obstructed with ice,) was, during her passage, cast away, and part of the goods wholly lost. The master, on the 8th January, 1806, having left the vessel, went to Albany, and delivered the letter of the plaintiffs to the de-t fendant, who, having read it, said that he did not considerthe goods as his, as the pláintiffs had not sent all -the goods ordered, nor on the terms proposed» On the same day, the defendant wrote to the plaintiffs, informing them, that the vessel was ashore, and that he did not consider the goods at his risk, and advising them to give directions for their preservation, offering, if the plaintiffs considered him as liable, to leave the question to be decided by arbitrators.
    The goods were charged at the market price of goods, at three months credit.
    The plaintiffs offered to prove, that the defendant had frequently, prior to the 11th December, 1804, sent orders to the plaintiffs for goods, which were executed only in part, and that the defendant had always received the goods sent, without making any objection; and that it was a general usage among merchants in the city of New-York, to send to their customers in the country, a part only of the goods ordered ; but this evidence was objected to, and overruled. The judge was about to order the plaintiffs to be called, when the counsel agreed that a verdict might be taken for the plaintiffs, subject to the opinion of the court on a case containing the facts above stated ; and that, if the opinion of the court should be in favour of the defendant, a nonsuit should be entered.
    The case was, now, argued by D. B. Ogden and Boyd*, for the plaintiffs ; and
    
      P. W. Radcliff, and J. Radcliff, for the defendant.
   Per Curiam.

The order sent by the defendant to the plaintiffs, was for 6 hogsheads of rum, and other articles, at a credit of six months ; and the plaintiffs sent only 3 hogsheads, and omitted part of the other articles, charging those sent, at a credit of three mdnths. This cannot amount to a contract. There is no agreement, no aggregatia menlium between the parties, as to the thing, or subject matter of the contract. The defendant wished to have the whole of the goods ; a part of them might be of no use ; and until he assented to receive a part instead of the whole, he cannot be said to have contracted to pay for a part; and there can be no implied assumpsit to pay, as the goods sent, never came to his hands.

Judgment of nonsuit.  