
    Joseph J. O’Donohue et al., App’lts, v. Francis H. Leggett et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed May 31, 1892.)
    
    1. Sale—Breach oe warranty as to quality.
    Plaintiffs’ assignors, through brokers, sold to defendants 1,700 piculsFree Preanger coffee to arrive. It appeared that only 1,645 piculs were shipped, and that defendants refused to accept them on the ground that they were not Free Preanger. The coffee was “ Pondok Gedeh,” a plantation in a district adjoining Praenger, and coffee from the latter commanded a higher price. Plaintiffs introduced evidence to show that “Free Preanger ” had a trade significance which covered plantations outside the district, but it did not appear that previous to this sale any effort was made in New York to sell Pondok Gedeh as Free Preanger. Meld. that the trial court properly held that no general custom was shown to sell the one for the other.
    3. Same—Evidence—Custom:.
    Evidence of local custom requiring vendees of coffee to reject it if they intend to do so within twenty-four hours after samples are delivered, is not admissible where the time for delivery is definitely fixed by the contract,, and liberty is thereby given to the vendees to sample it in bulk.
    (Bradley and Haight, JJ., dissent.)
    Appeal from a judgment of the general term of the supreme-court of the first department, affirming a judgment entered in New York county, upon the direction of the court at circuit, dismissing the complaint upon the trial before a jury.
    The action was to recover damages for the alleged breach by the defendants of the following contract:
    “ New York, October 27, 1879.
    “ Sold for account for Messrs. Sheldon, Banks & Co., to Messrs. F. H. Leggett & Co., 1,700 piculs of Free Preanger coffee, to arrive, the name of vessel or vessels to be given as soon as known. to the sellers, at twenty-two cents per pound. Sound and made, sound. Basis, four months’ notes from average delivery in store. Payable, cash within first month’s storage; discount for unexpired time; rate seven per cent per annum; first month’s storage and fire insurance free and to weigh coffee. Should government impose duty on coffee, this coffee to be taken in bond. No arrival, no sale. (Signed)
    “ O’SHAUGHNESSY & SOBLEY,
    “ Brokers.”
    And written across the face: “Accepted. Sheldon Banks & Go.”
    The vessel, the Jacobus Johannes, did arrive early in May, 1880, and the defendants, after examining the coffee, refused to accept it, and wrote plaintiffs’ assignors under date of May 29,1880, confirming previous verbal notice of refusal. Defendants placed their refusal “ on the ground that they are not Free Preanger as purchased  to arrive ’ of you October 27, 1879.” The plaintiffs after notice to defendants, and proper advertising, caused the coffee to be sold at public auction August 20, 1880, upon defendants’ account, and realized $11,342.90 less than the contract price. This difference with interest they seek to recover in this action. Further facts are stated in the opinion.
    
      Joseph II. Choate, for app’lts; B. Randolph Robinson, for resp’ts.
    
      
       Affirming 39 St. Rep., 983.
    
   Landon, J.

The coffee offered for defendants’ acceptance was not “ Free Preanger,” but was “ Pondok Gedeh.” Preanger is a large district in Java, Buittenzorg is the adjoining district, and Pondok Gedeh is a plantation in the latter district. Free Preanger coffee, “ Free ” distinguishing the coffee grown upon private plantations from that grown by the government, was better known than the Pondok Gedeh, and at the time of this transaction commanded a higher price in the New York market

The plaintiffs, however, cont end that there was a trade signification attached to the term Free Preanger; that the product of several plantations outside of the district of Preanger, but near it, was known in the New York market as Free Preanger; that Podolc Gedeh was one of these plantations, and that this contract was made and should be construed with reference to such trade signification. Much evidence was given upon this subject We have examined it, and conclude that it was not sufficient to sustain a verdict in favor of the proposition. It does not appear that before September, 1879, any effort was made in the New York market to sell Pondok Gedeh coffee as Free Preanger, but that about that time, and until the defendants refused to accept this parcel of coffee, some importers and dealers in coffee did sell a few parcels of coffee as Preanger which were grown in that district.

In September, 1879, these defendants bought 1,200 piculs of Tziserora as Free Preanger and some other dealer bought 2,200 piculs. But it was not shown that the defendants or the other buyers knew that their purchases were in fact Tziserora. A few sales of coffee from the Nan goon district as Free Preanger were mentioned by one witness, but he could not give the particulars. Several witnesses testified in general terms that coffee raised upon the private plantations in the Buittenzorg district near to Preanger, including those already mentioned and some others, were sold in 1879 as Free Preanger, but when asked to give particulars their recollection was defective, and their testimony leaves it in doubt whether the hujier had the knowledge of the seller as to the district in which the coffee was grown.

Respecting the sale of Pondok Gedeh as Free Preanger, no witness had knowledge of any sales other than of the consignment of coffee here in question. The trial court properly held that no general custom was shown to sell Pondok Gedeh as Free Preanger, and that no knowledge of such a custom was brought home to the defendants.

The plaintiffs proved that "they notified the defendants January 28, 1880, of the name of the vessel, the “Jacobus Johannes” upon which the coffee was expected to arrive,, and that March 1, 1880, overland samples having arrived, via London, pursuant to the custom of the trade, they delivered them to the defendants, who kept them two days, and then brought them back to the same brokers through whom this contract was made with instructions to offer the coffee for sale. The marks on the samples would indicate to the trade that the coffee was Pondok Gedeh, but would not aside from that designation indicate the district in which it was grown. The plaintiffs then sought to show a trade custom in New York making it the duty of the buyer to accept or reject the coffee immediately after the receipt and examination o£ such samples. The questions asked, tending to prove this custom, were excluded upon defendants’ exception. In this we think there was no error. The contract was in writing and contained no mention of samples. According to its terms the defendants could await the arrival of the coffee and its inspection in bulk. The custom, if allowed, and of the force suggested, would in effect alter the contract in a particular material to the rights of the defendants. Evidence of it was therefore properly excluded. Corn Exchange Bank v. Nassau Bank, 91 N. Y., 74; Beirne v. Dord, 5 id., 95; Westcott v. Thompson, 18 id., 363-7; Bradley v. Wheeler, 44 id., 495; Barnard v. Kellogg, 10 Wall., 384.

The court sustained defendants’ objection to questions asked by plaintiff to prove that when defendants in March returned the overland samples to the brokers, they instructed them to sell the coffee as Free Preanger. As they still had until after the vessel's arrival in which to determine whether they would accept the coffee, the trial of the experiment whether the market would take this coffee as Free Preanger upon inspection of the samples, might assist them in reaching that determination; the mere trial of the experiment in the absence of evidence of its success was not evidence that in trade signification this coffee actually was known by that name. Besides, Pondok Gedeh was the name of a plantation or estate very small in comparison with Preanger or Buittenzorg, and it does not appear that the defendants then knew that it was in the latter and not in the former district The objection was properly sustained.

It appeared that only 1645 1-2 piculs of coffee arrived instead of 1700 as specified in the contract Upon the trial this variance in the number of piculs was insisted upon in justification of the defendants’ refusal to accept The coffee arrived in mats, two mats making a picul. “ Picul ” is a measure of the weight of coffee and is understood in New York to call for from 128 to 136 pounds, the weight of the coffee being affected during transportation by various causes.

By the contract the coffee was to be sold by the pound and to be weighed. The actual weight of the 1645 1-2 piculs was 221,000 pounds which was equal to 1700 piculs at 130 pounds each. The defendants did not place their refusal to accept the coffee upon any deficiency in the number of piculs, and since the deficiency was not in the actual weight of the coffee but in the number of packages in which it was enclosed, we incline to think this variance was not material in fact or in the intention of the parties. But the variance from the contract in the kind of the coffee offered the defendants was fatal to the plaintiffs’ right of recovery, and the judgment must be affirmed, with costs.

All concur, except Bradley and Haight, JJ., dissenting.  