
    The General Commercial Company, Ltd., Appellant, v. William Schall et al., Copartners under the Name of William Schall & Company, Respondents.
    
      Contract — sale ■— action to recover for failure to deliver ■— defense that shipping instructions were not given in time. y
    
      General Commercial Co., Ltd., v. Schall, 208 App. Div. 717, affirmed.
    (Argued May 23, 1924;
    decided June 6, 1924.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 17, 1924, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term. The action was brought by the. buyer against the seller to recover for breach of contract of sale. The contract was for granulated sugar and contained clauses: First, “ Goods to be ready for delivery during January, 1920, but not before the 20th; ” second, “We to furnish you with shipping instructions at least 10 days prior to shipment; ” third, “ Delivery to be made f. a. s. N. Y.” It was provided that the buyer should export the goods and “if for any reason whatsoever the buyer shall fail to furnish the documents as aforesaid, in consequence whereof the seller shall be deprived of the benefit of the drawback allowed by law, the buyer hereby agrees to pay to the seller on demand a sum equal to the amount which the seller would have recovered by way of drawback but for the nonperformance aforesaid.” Shipping instructions were given upon the twenty-sixth day of January. Those instructions provided for delivery to a warehouse in the borough of Manhattan. At the trial the court directed judgment for the defendants.
    
      Carlyle M. Keyes and Carl A. Rood for appellant.
    
      Eugene Congleton, Francis E. Neagle and Raymond E. Cook for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.  