
    Charles H. Arthur et al., Pl’ffs, v. Alfred P. Wright et al., Def’ts.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    -Contract — Delivery—Shipment as soon as possible.
    Plaintiffs, on May 25, contracted to sell wheat to defendants to be delivered in Buffalo as soon as possible. The usual time of transportation was six days. Plaintiffs did not ship any wheat until June 13, which was refused on arrival. Vessels at the time were in great demand and difficult to obtain, which was known to plaintiffs, but they actually procured vessels after the making of the agreement to transport like freight in pursuance of _ contracts previously made. Held, that the delivery was not made within a reasonable time and that the known difficulty of procuring transportation could furnish no excuse for the delay; that defendants were entitled to an exact performance of the contract for prompt shipment and delivery within a reasonable time and that they were justified in their refusal to accept.
    Motion by the plaintiffs for a new trial on exceptions taken at the Brie circuit on the 15th day of April, 1889, ordered to be heard at the general term in the first instance.
    
      B. G. Day, for pl’ffs; Frank Drundage, for def’ts.
   Macomber, J.

Counsel for the respective parties, at the close of the evidence, asked the court to withdraw the case from the consideration of the j ury and to direct a verdict. The only question, therefore, is whether, upon any reasonable view which may be taken of the facts of the case, the judgment can be sustained. If there be contradictory evidence, or if contrary inferences can be drawn reasonably from the uncontradicted facts, we must assume that the version thereof which leads to an affirmance of the judgment is correct. Fargo v. Milburn, 100 N. Y., 96; Kirtz v. Peck, 113 id., 226; 22 N. Y. State Rep., 733.

This action is to recover upon a contract made May 25, 1887, between the plaintiffs, who are dealers in wheat in Dulutb, Minnesota, and the defendants, who are forwarders, and at times purchasers, of wheat at Buffalo, M. Y. The agreement, which was evidenced by telegrams from the respective parties and subsequently embodied in a letter from the defendants to the plaintiffs, was, that the plaintiffs should sell to the defendants 50,000 bushels of Mo. 1 hard wheat, at ninety-one cents per bushel, delivered in Buffalo as soon as possible (as stated in the complaint) by lake transportation. The wheat was to be shipped from Duluth to Buffalo by lake. The usual time for transportation of freight between these two ports is six days. It required but a few hours to load into vessels this amount of wheat. Had the same been shipped from Duluth on the 26th of May, 1887, the day after the contract, it would have been delivered in due course of transportation to the defendants on the 1st day of June of that year. But the plaintiffs did not ship any part of the cargo until the 13th of June, and the wheat did not arrive in Buffalo until the 18th day of that month. The defendants refused to receive the cargo, and the same was subsequently sold in the interest of the plaintiffs, and this action is brought to recover the sum of $4,500, the difference between the contract price and the amount realized at .such sale.

The contract, as stated in the complaint, was, that this wheat •.should be delivered in Buffalo harbor as soon as possible. There was no time mentioned for its delivery, in the correspondence constituting the contract, and hence, the plaintiffs had a reasonable time in which to fulfil their part of the agreement Wright v. Bank of the Metropolis, 110 N. Y., 237 ; 18 N. Y. State Rep., 92; Colt v. Owens, 90 N. Y., 368.

By the evidence of one of the plaintiffs it is established without contradiction, that vessels for the transportation of freight from Duluth eastward were, at this time, in great demand and were consequently difficult to obtain. It was also shown, by the same w'itness, that the plaintiffs actually procured vessels for the transportation of like freight between these two ports in pursuance of contracts made prior to the 25th day of May, but which were executed after the agreement with the defendants. Between the 25th day of May and the 13th day of June inclusive, the plaintiffs actually shipped from Duluth 250,000 bushels of wheat, ■of which shipment 200,000 bushels were to fill contracts made prior to May 25th, with parties other than the defendants. Such .shipments were made- May 26th, May 27th, June 2d, June 3rd and June 11th. When the contract was made with these defendants, the plaintiffs knew that vessel room upon the upper lakes was difficult to obtain.

Such delay of the plaintiffs in delivering the wheat at Buffalo was, under these facts, inexcusable. The delivery was not made within a reasonable time. It was the duty of the plaintiffs under this contract to obtain the wheat and ship the same from Duluth with all reasonable dispatch and to deliver the same in Buffalo in the usual course of lake navigation. So long as they omitted either to obtain transportation or to load the vessel, they failed of their duty to the defendants under the contract. The known difficulty of procuring transportation could furnish no excuse for delay. The defendants were entitled to an exact performance by the plaintiffs of their contract to ship promptly and to deliver within a reasonable time. Failing in this, they have no ground of complaint against the defendants for refusal to accept the wheat on the 18th day of June. Tobias v. Lissberger, 105 N. Y., 404; 8 N. Y. State Rep., 43.

The exceptions taken to the exclusion of the testimony of the witness Arthur upon his direct examination touching the contracts which the plaintiffs had on hand on the 25th day of May, 1887, for the delivery of wheat, are not available on this appeal, for the reason that the witness, on cross-examination, gave all the facts called for on his direct examination.

The motion of the plaititiffs for a new trial should be denied, and judgment should be ordered for the defendants upon the order of the circuit dismissing the complaint of the plaintiffs.

Dwight, P. J., concurs; Corlett, J., not voting.  