
    John F. Schwann et al., Resp’ts, v. George W. Clark, App’lt.
    
      (New York City Court, General Term,
    
      Filed February 8, 1894.)
    
    Contract—Prompt shipment.
    Where a contract of sale requires the vendor to ship promptly by steamer ' in October, he is only under the duty to ship as early in October as the reasonableness of the trade and shipping facilities permit.
    Appeal from a judgment in favor of plaintiffs.
    
      Parsons, Shepard & Ogden, for app’lt; JJinrichs & Rudolph, for resp’ts.
   Fitzsimons, J.

The answer does not specifically set up as a defense the statute of frauds. Therefore, the benefits of that statute cannot avail defendant in the action. Crane v. Powell, 19 N. Y. Supp., 220 ; 46 St. Rep., 668. The contract of sale required plaintiffs to ship promptly by steamer in October. The evidence shows that the lead sold was on October 29th placed on board a vessel destined to sail for New York, and which did sail November 1st, two days subsequent. In my judgment, this was a sufficient compliance with the terms of said contract. The plaintiffs were only under the duty to ship as early in October as the reasonableness of the trade and shipping facilities permitted. Whether or not they did so in this case, was a question of fact for the jury to determine, which they did; deciding it in plaintiff’s favor, and their finding is conclusive. The testimony amply justifies it, and as the vessel sailed two days after the shipment it is quite evident that the plaintiffs selected a vessel that sailed within a reasonable time thereafter. Thus, doing all that the law required of them. Ledon v. Havemeyer, 121 N. Y., at page 185 ; 80 St. Rep. 754. The notice of the re-sale of the lead was more than reasonable as the testimony shows. We have examined the exceptions taken and find nothing in them that would justify a reversal of the judgment. Judgment is affirmed with costs.

All concur.  