
    Cochran Cotton Seed Oil Co. v. Haebler.
    (City Court of New York—General Term,
    October, 1892.)
    The plaintiff, doing business in South Carolina, having on September 15, 1891, sold to defendants, doing business in New York city, 200 barrels of cotton seed oil for October delivery, in New York city free onboard, shipped three lots of fifty barrels each, and at the time of each shipment, notified defendants by mail of the same who received the oil without complaint. Held, that a shipment in the same manner and reaching its destination on October thirty-first, was good though defendants did not receive it until next day.
    Appeal from judgment on verdict directed for plaintiff.
    
      R. B. Honeyman, for plaintiff (respondent).
    
      M. P. Stafford, for defendants (appellants).
   Van Wyck, J.

The plaintiff, whose place of business is at Rock Hill, S. C., sold on September 15, 1891, to defendants, whose place of business is in Hew York city, 200 barrels of cotton seed oil for October delivery in New York at twenty-nine cents per gallon, free on hoard, weight guaranteed.

The plaintiff from time to time prior to October twenty-second, shipped to defendants in accordance with this contract three lots of fifty barrels each, by the Pennsylvania railroad, a common carrier selected by it and not objected to by defendants and at the time of each of such shipments notified defendants by mail of the same and inclosed a bill of lading of the same and also drew upon defendants for the amount of such shipment, which drafts were always paid upon presentation. The plaintiff had given no other notice, and this was the only effort made by them in reference to the delivery, and yet the defendants had received and accepted these first three shipments and paid for them without complaint on them part, either as to the carrier or the place and method of delivery in New York. The dealings and transactions between the parties as to the delivery of these first three lots certainly made an agreement as to the carrier, the place of delivery in New York and the method thereof, and all that plaintiff was called upon to do in reference to the delivery of the last lot of fifty barrels, was to ship them at Rock Hill, by the same carrier and immediately mail notice of the shipment, with the bill of lading as it had previously done upon each of the first three shipments, and draw upon defendants for the amount of the invoice. Of course the same must, during the month of October, have reached the same pier at which the other lots had been delivered and accepted. All of this was done, and tins shipment reached such pier in New York on October thirty-first, and if defendants did not learn of the same until the next day, it was either their own fault or that of the carrier who had ceased to be the agent of the plaintiff the moment the oil reached its destination, free on board and on time. It would seem that defendants had realized that it was their duty, after receiving this notice and bill of lading, to make inquiry as to the arrival of the shipment, for we find them on that day at 12 o’clock noon, at the carrier’s pier asking if the same had arrived, and upon being informed that the car had not yet arrived, they left no instructions for the carrier to inform them if the car should arrive later on that day and certainly the plaintiff, who was 800 miles away and knew nothing of the delay, could not have so instructed the carrier.

The plaintiff made the same delivery of this last lot, as it had of the three others and the delivery was good as to all. Pacific Iron Works v. R. R. Co., 62 N. Y. 272. Both parties requested the court to direct a verdict and neither requested to go to the jury. The verdict instructed for plaintiff is not against the weight of evidence and the judgment is affirmed with costs.

Ehrlich, Ch. J., and McCarthy, J., concur.

Judgment affirmed.  