
    Havemeyer and others vs. Cunningham and others.
    On the 1st of May, 1866, the defendants entered into an executory contract, for the sale to the plaintiffs of an invoice of sugar, per Anna Kimball, 700 tons, more or less, to arrive on or before 1st of August, sugar to be of current quality, &c. The sugar had then been shipped on board the vessel, and was on its way to this country, but did not arrive until after the first of August. Part of it was damaged on the voyage, and the residue the defendants refused to deliver, on the ground that the contract was at an end, because the vessel did not arrive within the time specified. Eeld that this was an absolute sale; and that the additional clause in the agreement— “ to arrive on or before the 1st of August”— did not make the sale conditional, depending on the arrival at that time.
    
      Eeld, also, that the defendants having agreed to sell the whole invoice, “ more or less,” they were only bound to deliver so much as arrived, and could not be made liable for what was lost on the voyage; there being no warranty that the invoice of sugar should arrive in a sound condition.
    
      Eeld, fm-ther, that the rule of damages, for not delivering the sugar, was the difference between the price agreed to be paid, and the market value on the day of delivery.
    And that this rule of damages could not be varied by an offer of the defendants to sell to the plaintiffs at a price below the value on the day of delivery.
    ACTION to recover damages for not delivering a lot of sugar, wMch the defendants had agreed to sell to the plaintiffs. The contract was as follows :
    
      "ew York, May 1, 1856.
    Sold for account of Messrs. Cunningham Brothers, to Messrs. Havemeyer & Moller, the invoice of sugar for their account, per Anna Kimball, 700 tons, more or less, at 6|-cents, less 4 per cent off for cash; to arrive on or before 1st August, to be of current quality, clayed, to be delivered foot of Charlton st., New York.
    Hallett, Dow & Young,
    
      Brokers, 89 Wall street.”
    
    On the 1st August, the sugar not having arrived in New York, the plaintiffs notified the defendants that whenever the sugar should arrive thereafter, they would accept it at contract price. It arrived in New York on the 29 th August, 1856, and on the same day the plaintiffs demanded it, and offered to pay for it. The market value of the sugar on the 1st August was 8J cents a pound. The defendants refused to deliver the sugar to the plaintiffs, hut sold it to other persons. Judgment was asked for the difference between the contract price and the market value of this sugar in New York on the 1st August, 1856, with interest.
    The answer admitted the contract; it set forth a correspondence between the parties and others to extend the time of delivering the sugar, showing a disagreement; also a correspondence between the parties to obtain a new price in case the sugar should not arrive by 1st August, showing a disagreement ; also a correspondence between the parties to show that the plaintiffs offered to take and the defendants refused to deliver the sugar in case it should arrive after 1st August; alleged that on 30th August, 1856, part of the sugar arrived in New York, but that another part thereof was lost at sea. And it was claimed, as matter of law, that the failure of the sugar to arrive in time defeated the contract; and also the fact that only a part of it ever arrived, had the like effect. The answer denied the alleged market value and the damage claimed.
    On the trial the plaintiffs put in evidence the sale note, and the authority of the brokers to sign this note for the defendants was admitted. It was proved that the words “ 6$, less four p. c. off for cash,” used in the sale note, was the customary abbreviation to denote that the price was fixed at six cents and seven-eighths of a cent for each pound, with a deduction of four per dent on the whole sum for immediate payment in cash. It was proved that on the 21st of April, 1856, the defendants had advices from their correspondents or agents, in Manilla, that the cargo of sugar in question had been shipped to the defendants on the 22d of January, 1856, as owners thereof, and was then on its way to New York. It was admitted that on the 1st of May, 1856, the defendants owned and had for sale a large quantity of sugar, amounting to about 700 tons, then at sea on board a ship called Anna Kimball, on its way from the Manilla Islands, in the Bast Indies, to Mew York. That said sugar arrived in Mew York, upon that vessel, about the 30th of August, 1856; that the plaintiffs, upon its arrival, offered to take it and pay for it at the price fixed in the sale note. That the defendants refused to deliver the sugar to the plaintiffs at that price, and sold it to other parties for more. The plaintiffs proved that the market value of the sugar in Mew York on the 1st of August, 1856, was 8£- cents per pound; and this market value remained the same on the 28th and 30th of that month. The plaintiffs then rested their case, no exception to any of the rulings of the court having been made.
    A motion by the defendants was made to dismiss the complaint upon two grounds, viz: 1st. The sugar did not arrive on or before 1st August. 2d. The whole invoice quantity never arrived. This motion was denied, and the defendants excepted. The defendants then moved that the judge direct the plaintiffs to prove, as part of their case, the quantity of this sugar which did arrive. The judge refused, and the defendants excepted. The defendants then proved that the vessel sailed from Manilla 24th February, 1856, with 700 tons of sugar ; that it encountered a storm and put into Singapore on 9th March, 1856, where the captain took out and sold some of the sugar, which had been damaged. That in that storm 4477 bags of this sugar were lost, amounting to about 200 tons. That the vessel, after repairing damages, sailed from Singapore for Mew York, with the remainder of this sugar, on 16th of April, 1856, and was in transit and at sea on that voyage on the 1st of May, 1856. The defendants then put in evidence the sale note which the brokers gave to the defendants, and which was a copy of the one put in evidence by the plaintiffs, except that it omitted the place of delivery. They also put in evidence a correspondence in reference to a sale by them to the plaintiffs of this sugar at 8 or 8J- cents in case it did not arrive on or before 1st August, 1856, and it appeared that no agreement was made; and moreover, the plaintiffs had no knowledge of that correspondence till some time afterwards. The defendants then proved their sale of the sugar, and its quantity and price. It was sold by a sale note, but the note expressed the sale as conditional. The plaintiffs then proved that the brokers who made the sale of this sugar to the plaintiffs, were employed by and acted as agents for the defendants. The defendants then put in evidence a correspondence between them and these brokers, in reference to extending the time for the arrival of this ship in Hew York, and it seems that the plaintiffs had nothing to do with that correspondence. Proof was given to show that the defendants assented to the place of delivery named in the sale note. Finally, computations were made and proved showing the plaintiffs’ claim, by taking the market value of the sugar on the 30th August, 1856, at cents per pound, and deducting therefrom the contract price. This closed the proofs on both sides, and there was no exception to any ruling admitting or excluding any item of evidence.
    The defendants then requested the judge to charge as follows : 1st. The sugar not having arrived within the time limited in the contract of sale, and some of it not having arrived at all, the defendants were not liable in this action. The judge refused, and the defendants excepted. 2d. The offer made by both parties in relation to a new contract of sale, after they had information leading them to believe that the sugar would not arrive by 1st August, and the sale by the defendants, without notice that the plaintiffs would insist upon the original contract, was an abandonment of the contract by the plaintiffs. And the plaintiffs are bound by the acts of Townsend. The judge refused to charge this as matter of law; holding these propositions to be questions of fact upon the evidence. The defendants waived submitting them to the jury, and took an exception. 3d. If the defendants were liable upon the contract, the damages should be computed only upon the sugar which arrived sound. The judge refused, and the defendants excepted. 4. That the defendants having offered the sugar to the plaintiffs for 8| cents, damages should not be computed at any higher price. The judge refused, and the defendants excepted. The defendants then formally waived going to the jury upon any fact involved in the case, reserving the exceptions as stated above.
    The jury found a verdict for the plaintiffs, subject to the opinion of the court.
    
      C. O’Conor, for the plaintiffs.
    --, for the defendants.
   By the Court, Ingraham, J.

The contract in this case is an executory contract for the sale of an invoice of sugar per Anna Kimball, 700 tons, more or less, to arrive on or before 1st of August, and sugar to be of current quality, clayed.

This was made on the 1st of May, 1856. The sugar had then been shipped on board the vessel and was on its way to this country, but did not arrive until after the 1st of August. Part of it was damaged on the voyage, and the residue the defendants refused to deliver, upon the ground that the contract was at an end, because the vessel did not arrive within the time specified. Some other questions arose as to the rule of damages, in regard to the value of the sugar, and the liability of the defendants for the portion lost.

The terms of this contract, we think, are such as to make the sale absolute. The additional clause—to arrive on or before the 1st of August—did not make the sale conditional, depending on the arrival at that time, but only designated the time before which the defendants could not be called on to deliver. The quality of the sugar, and the place of delivery, were also absolutely specified, and were without condition. There are two classes of cases in which the designation of the time of arrival in such contracts has been held to be a condition precedent to the obligation to perform. One of these classes is where the contract is to take effect on arrival, &c. The other is where the article sold is not known to be on board of any vessel, bnt is expected by some vessel to arrive at a particular time. In both classes the contract is held to be conditional, depending on the arrival of the goods at the time stated. Of the cases referred to by the defendants’ counsel, Russel v. Nicholl, (3 Wend. 112;) Lovatt v. Hamilton, (5 Mees. & Weis. 644;) Alwyn v. Prior, (Ryan & Moody, 406;) Hawes v. Humble, (2 Camp. 327, n.;) Boyd v. Skiffen, (Id. 326;) and Idle v. Thornton, (3 id. 274,) were contracts to take effect on arrival of the vessel. In Lovatt v. Hamilton, (5 Mees. & Wels. 639,) by the contract the sale was to be void in case of non-arrival. In Vanrede v. Weber, (1 Hurls. & Norm. 311,) the contract was for a particular kind of rice, and contained the words “ provided the same be shipped for seller’s account,” and on arrival the vessel had no such rice on board. In Johnson et al. v. MacDonald, (9 Mees. & Wels. 600,) the contract was to sell articles to arrive by the Daniel Grant, and on arrival she had no such articles on board, and the defendants were held discharged; Parke, B. holding the true meaning of the contract to be the arrival of the vessel with the goods on board. The contract in this case is to be distinguished from the cases above referred to, in being the sale of an invoice of sugar, per Anna Kimball, which had then been shipped and was on its way to this country. The sale was not depending on the condition that the goods should arrive by, or before the first of August, but performance could not be demanded before that time. In Simond v. Braddon, (2 Com. B. [J. Scott, N. S.] Rep. 324,) the contract was “for the sale of rice, per Severn, now on her way” &c., and the court held that to be a contract on the part of the seller that he had put such a cargo on board of the vessel. So in Gorissen v. Perrin, (Id. 700,) a contract “ to sell goods now on passage and expected to arrive per vessel,” &c., was held to be a warranty that the goods were then on passage. The Oh. J. says, “ we are of opinion that the present case is plainly distinguishable from those referred to, by the statement that the goods were on board at the time the contract was entered into. We are of the opinion that this statement amounts to a warranty.”

The sale in the present case being of an invoice of sugars shipped on board the Anna Kimball, was a sale of sugars which had then been shipped, and the addition of the words, to arrive on or before a specified time, did not make it a condition precedent to the performance of the contract, that the vessel should arrive at the time, with the sugars in good order.

The offer by the clerk to take the sugar at another price, after the 1st of August, was not within the ordinary authority of a clerk; and being disavowed by the formal notice from the plaintiffs on the 1st of August, the day fixed for its arrival, that they intended to claim the fulfillment of the contract, was not in law an abandonment of the first contract. It might have been a circumstance upon which, with other facts, the defendants could have submitted the question of abandonment to the jury. Having declined to do so, they cannot claim, as matter of law, that such abandonment is proven.

In regard to the sugar that was destroyed on the voyage, and did not therefore arrive by the vessel, the plaintiffs were not entitled to damages. They agreed to buy the invoice of sugar which was then shipped. There was no warranty that it should arrive in a sound condition. What did arrive they were entitled to under their contract; what was lost on the voyage the vendors were not responsible for, and of course were not liable for damages for the non-delivery. Having agreed to sell the whole invoice, “ more or less,” they were only bound to deliver so much as arrived; and so far as there has been a recovery for sugar which did not arrive, the verdiet must be reduced to the sums found in regard to the sugar which arrived here.

[New York General Term,

September 16, 1861.

' The rule of damages for not delivering the sugar was the difference between the price agreed to be paid and the market value on the day of delivery. (Dana v. Fiedler, 1 E. D. Smith, 463 ; S. C., 2 Kernan, 51.) This rule of damages could not be varied by an offer of the defendants to sell to the plaintiffs at a price below the value on the day of delivery. The plaintiffs had a right to a delivery of the property purchased, at the stipulated price, and the defendants could not relieve themselves from the consequences of their refusal to deliver, by an offer to sell at a higheivprice, although less than the subsequent market value. Such an offer, if accepted by the plaintiffs before the time of performance arrived, might have exposed them to the charge of having abandoned the first contract.

In regard to the sugar partially damaged, but which was received at the port of delivery, we can make no alteration in the amount of damages, because there is no proof that the value to the plaintiffs was reduced thereby. They demanded it, and the refusal to deliver was put on the same grounds on which they refused to deliver the sound sugar. We have no evidence to show us that such damage was more than the corresponding rise of the sugar in the market, between the time of purchase and the day of delivery, or even as much.

The plaintiffs are entitled to judgment upon the verdict, for the damages as found by the jury for not delivering all the sugar which arrived in the vessel, amounting to $20,580.98. The interest on this amount, since the verdict, to be adjusted with the costs. (Code, § 310.)

Judgment for the plaintiffs on the verdict, to the amount above stated.

Clerke, Ingraham and Leonard Justices.]  