
    Emanuel Steinhardt and Simon Steinhardt, Appellants, v. David Bingham and Arthur N. Bingham, Respondents.
    
      Contract requiring notice of shipment of merchandise by a vendor to the vendee — when personal notice, as distinguished from notice by mail, is not required.
    
    The rule that where a contract requiring notice does not specify the nature of the notice, personal notice must be given, does not apply where the context of the contract or the circumstances of the case show that a personal notice was not intended.
    Where a contract for the shipment by persons in New Orleans to persons in New York of a quantity of grain from any Atlantic or Gulf port provides: “ Sellers shall furnish to buyers, steamers’ name and quantity loaded within five days of date of bill of lading,” it is not necessary that the stipulated notice should be personally served upon, or actually received by, the vendees within five days of the date of the bill of lading; a notice mailed within three days of the date of the bill of lading and not received by the vendees until six days after such date, is sufficient.
    Van Brunt, P. J., and O’Brien, J., dissented.
    Appeal by the plaintiffs, Emanuel Steinhardt and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of February, 1900, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the New York Trial Term.
    
      
      Alexander Dhunenstiel, for the appellants.
    
      Robert IT7". Jhmkes'wortk, for the respondents.
   Hatch, J. :

The plaintiffs and defendants entered into two contracts for the future purchase and sale of 15,000 quarters No. 2 corn. By the terms of said contracts said corn was to be shipped during the months of March and/or April, 1897, from any Atlantic or gulf port by first-class steamer, and said contracts contain the following clauses: “ Sellers shall furnish to buyers, steamers’ name and quantity loaded within five days of date of bill of lading.” Payment by sellers’ draft at sight on the buyers with documents attached. Several shipments, consisting of portions of said 15,000 quarters of corn, were made and tendered by plaintiffs pursuant to the terms of the contract, and accepted by the defendants, but one shipment per steamship Tampioan was made and tendered by the plaintiffs and was rejected by defendants for the stated reason that the tender was not made pursuant to the contract, because plaintiffs failed to furnish to buyers steamer’s name and quantity loaded within five days of date of bill of lading. Plaintiffs sued for damages alleged to be caused by such rejection.

The shipment in question was made on Saturday, April 24, 1897, the bill of lading for which was delivered to the plaintiffs on Monday, April twenty-seventh, late in the afternoon.

On the twenty-seventh, within three days of the date of the bill of lading, plaintiffs caused notice to be sent by mail to the defendants, which furnished to them all the information required by the contract. This notice was received by the defendants-on the thirtieth of April, the sixth day after date of .bill of lading, and on that day the defendants declined, by telegraph, to accept a delivery, on .the ground that plaintiffs had failed to furnish them steamer’s name and quantity loaded within five days of date of bill of lading, and in a letter of later date insisted that posting a letter in New Orleans was not notice to them until received.

The performance by plaintiffs of the provision of the contract requiring them to furnish to defendants the steamer’s name and quantity loaded within five days of date of bill of lading was a condition precedent to their right to recover, and the question preseuted by this appeal is, whether the contract required personal notice or a notice to be actually furnished or delivered to defendants within live days from the date of the bill of lading. We have examined with care the many cases cited by counsel, but find none of them in point, except that of Beakes v. Da Cunha (126 N. Y. 297). Most of the cases turn upon the question of what constitutes the consummation of a contract by mail, or when notice by mail becomes effectual. The case of Busk v. Spence (4 Camp. 329), quoted in Benjamin on Sales (7th ed. § 588), cited by respondent, is nearer in point than any of the others, except the Beahes case. In that case the seller agreed to sell certain flax, to be shipped from St. Petersburg, “ and as soon as he knows the name of the vessel in which the flax will be shipped, he is to mention it to the buyer.” The vendor received the advice on the twelfth of September in London, and did not communicate it to the defendant, who resided in Hull, until the twentieth. The vessel arrived in October, and the defendant refused to accept the flax. Held, that this was a condition precedent; that it had not been complied with, and that the question whether or not the communication made eight days after receiving the information -was a compliance with the condition was one of law, not of fact. The plaintiff was, therefore, nonsuited.

In this case the condition was plain and certain, and required no construction at the hands of the court or jury. In the case at bar the contract must be construed to determine its meaning. First, as to what kind of notice is required to be given, and whether such notice is required to be personal or otherwise ; and, second,, what is meant by the words within five days of date of bill of lading.”

The court below delivered no opinion, and it is, therefore, impossible to determine on just what grounds it dismissed the complaint, but one of the grounds of the motion to dismiss was “ that the five days’ notice was a condition precedent, and which it was admitted and proved was not complied with.” We are of the opinion that the dismissal of this complaint was error, for which the judgment should be reversed. The contract wre are called upon to interpret is entirely silent as to the kind of notice to be given. The rule of law is that where any statute or the terms of any contract require notice to be given, and there is nothing in the context of the statute or the contract, or in the circumstances of the case, to show that any other notice was intended, a personal notice must always be given. (Beakes v. Da Cunha, supra.) “ But the context or the circumstances of the case may be such as to show that a personal notice was not intended, and in such a case a notice by mail, whicli is the ordinary mode of giving notices in business transactions, is authorized.”

In this case the circumstances show that personal notice was not intended or required. The plaintiffs live in New Orleans, and the defendants in New York. The shipments were to be made during March and/or April from any Atlantic or Gulf port, at seller’s option, and, as said by the court in the Beakes Case (supra), the exigencies of the case were not such as to require personal notice to be served or given. A notice by mail would accomplish every purpose for which notice was required, and it cannot be supposed that the parties intended a personal notice. Indeed, the defendants do not contend that the contract requires personal notice, but rest upon the proposition that the notice, to meet the requirements of the condition in the contract, must have been received by them within five days. We do not think this contention warranted by the language used. It does not say so. The words are shall furnish * - * within five days,” etc, The required information was sent by mail within the five days stipulated, and was received by the defendants on the sixth day. This we think was a furnishing of the information within five days within the fair meaning of the contract. If the time limit had been as material as the defendants now claim, they would not have been likely to have left the question to depend upon the construction of doubtful language, but would have made the condition so definite and certain that there could be no mistake about it. While in the Beakes Case (supra) there were present acts of the parties which placed a practical interpretation upon the provisions of the contract as to notice, yet it is equally true that the reasoning of the learned judge who wrote in that case would have supported the service of the notice by mail as a sufficient compliance with the terms of the contract had there been no acts of the parties working a practical construction. As applied to the terms of the present contract the language of this case is appropriate and conclusive upon the construction of the same as to notice, as practically the same conditions existed' with respect to residence and situation of the parties as were found present in that case. The fact that the cargo might have been shipped from the port of New York does not change the condition. The contract recites that the plaintiffs are residents of New Orleans, and its requirement was that notices would be given by them. It is, therefore, fair to assume that in the contemplation of the parties the notice was to come from the plaintiffs at New Orleans. Nor is it seen how this construction of the contract could work to the disadvantage of the defendants. In ordinary course notice given by mail within five days after the date of the bill of lading would reach the defendants before the vessel would reach her destination, and, if the defendants communicated with their principals by mail, in ordinary course, the principal would not be advised of the shipment before the vessel arrived in' port. If the communication was by cable the notice would, in usual course, reach the principal before the arrival of the ship, -whether the notice was given on the fifth day or received by the defendants within that time. We think, therefore, that notice by mail sent by the plaintiffs within five days after the date of the bill of lading answered the requirements of the contract. For these reasons the judgment should be reversed and a new trial granted, costs to the appellants to abide the event.

Ingraham and McLaughlin, JJ., concurred ; Van Brunt, P. J., and O’Brien, J., dissented.

Van Brunt, P. J.:

I dissent. The contract is plain and unambiguous and was not complied with.

O’Brien, J., concurred.

Judgment reversed, new trial granted, costs to appellants to abide event.'  