
    Orville C. Whitney, Respondent, v. Emma V. McLean and John E. McEvoy, Appellants.
    
      Agreement to pay draft “B. L. if accepted, answer” — the vendee is not entitled to inspect the goods before payment of a draft with bill of lading attached — notice to the vendee of a resale for his account—presumption from its being mailed, of its receipt.
    
    In an action brought to recover damages for an alleged breach of a contract entered into by telegrams between the parties, it appeared that the plaintiff, who was a produce dealer engaged in buying new potatoes in North Carolina for shipment to the north, telegraphed to the defendants, who were produce dealers in Rochester, asking whether they wanted a car of choice potatoes at “three twenty-five delivered,” to which defendants replied, "Will give three delivered choice draft B. L. if accepted answer.” The plaintiff telegraphed, back that three -twenty-five was the lowest price, to which the defendants replied by telegram, saying, “ Will accept car at your price if stock fine;. ship immediately,” whereupon the potatoes were shipped by a bill of lading indorsed to be delivered to the defendants, attached to which was a draft, which the defendants declined to pay unless they were allowed first to inspect the potatoes at the freight office in Rochester. This the railroad company refused to allow, unless the defendants produced the bill of lading. Subsequently the plaintiff, by his attorney, took possession of the potatoes and sold them for the account of the defendants.
    
      
      Jleid, that the promise to pay the “draft- B. L.” meant that the purchasers would ■ pay the amount of the draft upon presentation to them of the hill of lading properly indorsed,, and that the defendants had no right to an inspection of the .potatoes before accepting the draft;
    That the fact that the court, instead of construing the contract itself, left it to •the jury to decide what the contract meant, afforded to the defendants no ground for a reversal of the judgment in view of the fact that the jury gave to the contract the proper construction. -
    Presumption that a notice of resale of merchandise for account of a vendee, mailed to the vendee, reached him, considered.
    
      Qumre, whether notice to the vendee is necessary.
    Appeal by the defendants, Emma Y. McLean and another, from a judgment of the County Court of the county of Monroe in favor' of the plaintiff, entered in the office of the clerk of the county of Monroe on the 29th day of October, 1895, upon the verdict of a jury rendered after a trial at .the Monroe County Court, and also from an order entered in said clerk’s office on the 16th day of November, 1895* denying the defendants’ motion for a new trial made upon the minutes.
    Plaintiff’s cause of action was for an alleged breach of contract entered into by the defendants, who were co-partners^ in- June, 1894. At that date the plaintiff was in Washington, N. 0., and was a produce dealer engaged in buying new potatoes for early ■shipment to tlie north, and the defendants were ¡produce dealers at Pochester. To'sustain the alleged contract the following telegrams were read in evidence
    “ June 12,1894. _ Washington,. N. C.
    “ To McLean and MoEvoy :
    “ Do you want car choice potatoes three twenty-five delivered..
    '“ 0. 0. WHITNEY.”
    
      “ June 13,1894. Eooh-estér, N. Y.
    ■“ 0. 0. Whitney :
    “ Will give three delivered choice draft B. L. if accepted answer MoLEAN AND McEV GY.” .
    
      “June 13', 1894* Washington,. N. 0.
    ■“'McLean and MoEvoy :
    “ Three twenty-five is lowest for best, stock.
    0. C. WHITNEY.”
    
      
      “ June 13, 1894. . . Rochester, N. Y.
    ■“ O. C. "Whitney, Washington, N. C.:
    “ Will accept car at your price if stock fine ship immediately.
    MoLEAN AND MoEYOY.”
    “ June 13, 1894. Washington, N. C.
    ■“ McLean and McEvoy :
    “ Shipped two hundred best stock in the State fancy stock.
    “ O. C. WHITNEY.”
    Subsequent to the receipt of the telegrams the plaintiff shipped '2.00 barrels of potatoes to Rochester, receiving a bill of lading therefor, and gave directions, which were noted on the bill of lading, to notify McLean and McEvoy, and there was also indorsed on the bill of lading: “ Deliver to McLean ancl McEvoy. O. C. Whitney.” And attached to the bill of lading was a draft for $650, which the plaintiff delivered to a bank in Washington, N. C., and the draft with the bill of lading attached were forwarded to the Flower City National Bank of Rochester for collection. The draft was presented for payment and the bill of lading accompanying the same, with an offer to hand the same over to. the defendants upon their payment of the draft. ' The defendants declined to make payment of -the draft, and they sought, without the bill of lading, to have the parties in charge of the freight office of the New York Central railroad allow an inspection of the potatoes. The railroad company refused an inspection, except upon the production of the bill of lading, and the defendants Were informed that upon presentment of the bill of lading inspection would be allowed. They refused to pay the draft and to take the bill of lading and inspect or take possession of the potatoes. As soon as tire plaintiff learned that the defendants refused to receive the potatoes lie put them under the control of his attorney, with instructions to sell the same at auction for the defendants’ ■account. Notices of the intended- sale were sent to the several dealers in the city, including, the defendants, of the time and place, and intention to hold the sale. The potatoes were sold at public auction for $237.50 net, the expense of the sale being about $12:50...
    The defendants, in answer to this action, claim that the refusal of the railroad company to allow the defendants to inspect the potatoes at the freight house absolved the defendants from all liability under their- contract. And, secondly, they claim that subsequently the plaintiff’s agent waived any claim which the plaintiff:-might have' had for .damages. Some minor questions were. presented to. the jury-
    
      H. B. Hallock, for the appellants.
    
      Elbridge L. Adams, for the respondent.
   Hardin, P. J.:

What was- the contract between the parties? To answer this question the telegrams must be interpreted. On June twelfth the • plaintiff’s telegram contained an inquiry to the defendants as to-whether they desired a “ car - choice potatoes three twenty-five delivered.” This telegram, when amplified,• undoubtedly .means-that the "inquiry was to the defendants, in substance, whether they wished to purchase a carload of choice potatoes at three, dollars and twenty-five cents per barrel, delivered in the city of Rochester; In' response -to that telegram, on June thirteenth, the defendants addressed to the plaintiff, from their place of business in Rochester.* to him in Washington, N. C., an answer in the words following-“Will give three delivered choice draft B. L. if. accepted answer, McLean and .McEvoy.” In attempting to interpret this-telegram - it must be borne in mind' that, the operator or operators, who received the telegram are chargeable with want of punctuation , or a proper use of capitals such as might be expected from'a more intelligent source, or on an occasion when addition ah words would not render the tariff greater. TLe apparent meaning of the dispatch would seem to be that the. defendants were willing-to pay to the plaintiff three dollars per barrel for potatoes if they-were choice, and that payment therefor would be. made by honoring a draft accompanying a bill of lading. The telegram was in the-nature of an inquiry, and after the. letters “B; L.” were inserted .the/ words “ if accepted, answer,” . A reasonable interpretation of the telegram as a whole seems to be found in applying the words'- “iff accepted, answer,” as significant of a desire on the -part of the’ defendants to notify the plaintiff that, if he accepted their proposition they desired him to notify them, and for such purpose they ' used the words “ if accepted, answer.” The plaintiff, in-response’ to that inquiry, addressed to the defendants on the same day a reply inAvords following:

“June 13, 1894. Washington, N. 0.
“ McLean and McEvoy :
“ Three twenty-five is lowest for best stock.
“ O. 0. WHITNEY.”

Upon the delivery of this to the defendants they were apprised of the fact that the plaintiff was willing to sell in accordance with .the terms already stated between the parties, at the price of three ■dollars and twenty-five cents, and that that price was the lowest “ for best-stock.” It was, therefore, incumbent upon the defend-, ants to determine whether they would carry forward the negotiations and comply with the terms as proffered by the plaintiff, or would abandon the negotiation. In making that determination they apparently resolved to submit a further offer to the plaintiff, which they did in the following language:

“Will accept car at your price, if stock fine ship immediately.
“ McLEAN AND MoEVOY.”

When the plaintiff received that dispatch he had a right to assume that the parties were willing to close, and intended to close, a contract With him for the purchase of the potatoes of the kind theretofore mentioned in tlie dispatches and upon the terms theretofore mentioned in the dispatches, and that the hill of lading was to accompany the shipment, and that was to he accompanied by a draft, and as no time Was mentioned for credit the common understanding would be that the draft was to he a sight draft such as was drawn at the time the bill of lading was transmitted. To indicate that the plaintiff had accepted the terms as found in the antecedent telegrams, he transmitted to the defendants the following dispatch which was received hy the defendants, viz.:

June 13, 1894. Washington, N. 0.
“ McLean and McEvoy :
“Shipped two hundred best stock in the State fancy stock.
“ 0. C. WHITNEY.”

■ The interpretation which we have intimated should be given to the telegrams, and the deduction of a contract therefrom which we have suggested, seems to be in accordance with one .of the views, entertained, by the trial judge and claimed by the plaintiff'.to befthc proper one. On the other hand, the defendants- claim that the telegrams were susceptible of another construction,, and induced the trial judge to submit the controversy between the plaintiff and the defendants,-as to what construction should be given to the telegrams, to the jury. . The defendants insist that the telegrams.should be read : '“Will pay draft attached to bill of lading if potatoes are accepted by us on arrival.”

During the charge the trial judge intimated his interpretation of the telegrams in the following language : “ I construe the promise to pay draft B. L., to mean that the purchaser will pay the amount of the draft on presentation to him of the bill of lading-properly indorsed, so- that' he can take that bill of lading and get his goods. If that is all there is of the contract, it means that the- purchaser must pay the amount of the draft the moment the bill of lading is presented, to him, and before he goes and gets - the goods,, or sees them ; whether that contract is the contract sued on is a. question for the jury; the bill of lading as made out would have enabled McLean and McEvoy, if they had possession-, of it, to go to this railroad company and get their 200 barrels of potatoes.”

Considerable- evidence had been given as to- the circumstances attending the relations of -the parties to each other, and the question as to the interpretation of the contract was as favorably, submitted to the jury as the defendants were entitled to have the same. Wé are of the opinion that no error of which the defendants, can avail arose during the trial by reason of the submission -of the question as to what construction should be placed- upoirtiie telegrams, in answering the question : “What is th„e,;: contract, -in the case?” ' (People v. O'Neil, 49 Hun, 422; S. C. affd., 112 N. Y. 355 and cases cited.)

In the course of the charge the judge observed: “ Did it give to these men by express terms or some custom in the trade, the right to go and inspect the potatoes before they were obliged, under the contract to honor this draft ? If it did, then your verdict must be for the defendants. * * * If you find the contract did not give them the right to inspect before they paid the- draft,rand that the potatoes were all right and sent' in proper packages, then your verdict will be for the plaintiff for suclr sum as you -think will coinpensate him for his damages in the case; which represents the difference between the contract price and the price which the plaintiff was able to get for the. potatoes after the refusal on the part of the defendants to pay for them.”

Year the close of the opinion in Cumpston v. McNair (1 Wend. 457-463) it -was said : “ As the jury found in accordance with what we hold to be the law of the case, this is no ground for directing a new trial,” although the question was one which the judge should have decided.

In Miller v. The Eagle Life & Health Ins. Co. (2 E. D. Smith, 269) it was held: It is no ground for the reversal of a judgment that a question which ought to have been determined by the court has been submitted to the jury, where, in the opinion of the appellate tribunal, the court must have decided as the jury in fact found.”

Undoubtedly, under an ordinary executory contract, the vendee is not required to accept and pay without examination. As was said in Pope v. Allis (115 U. S. 372): The mere delivery of the goods by the vendor to the carrier does not necessarily .bind the vendee to-accept them. On their arrival he has the right to inspect them to ascertain whether they conform to the contract, and the right to inspect implies the right to reject them if they are not of the quality required by the contract.” In that case the plaintiff had paid for the iron in advance of his opportunity to inspect and reject; subsequent to the payment he inspected and refused to accept 500 tons, of it on the ground that it was not of the grade called for by the-contract, and thereupon gave the defendants notice of the fact that, he held the iron subject to their order, and-brought a suit to recover the price of the iron and freight paid thereon and his recovery was allowed.

In Pierson v. Crooks (115 N. Y. 552) the general rule was under discussion, and the court said : “ The purchaser of goods under an. executory contract, where payment and acceptance are, by the contract, concurrent and dependent obligations, cannot, on delivery of' the goods, pay the purchase money, and subsequently rescind the contract and reject the goods for defects ascertainable on examination. It would .be inconsistent with the nature of the transaction and the admission which the payment implies to permit him to do so in the absence of fraud or deceit on the part of the vendor. (Brown v. Foster, 108 N. Y. 387.) ■ In such case the purchaser .must satisfy, himself, before making payment, that the goods tendered correspond with the contract. But the contract may provide that payments shall be made in advance before delivery or acceptance of the goods. There is nothing in such a stipulation inconsistent with an executory contract, nor would payment under such a contract preclude the purchaser, when delivery is tendered, from the right of examination, or from exercising the right of rejection, if the goods did not conform to the contract.”

In that case the contract was such that the buyer was required to pay the customs before he could obtain possession of the property or exercise any right of inspection thereof, and in dealing with the question involved in the case the court said: “ The duties under the rules of the customs were paid, and were required to be paid, before the plaintiffs took possession, arid as a condition of their ..exercising any control of the property. The event upon which the plaintiffs were bound to pay for the iron was specified in the contract, and that was on the delivery to them of the shipping documents. This might, and in the ordinary course would, precede the actual delivery and receipt of the goods into their custody. There would be nothing necessarily inconsistent in making a payment on presentation of the shipping documents,'and a subsequent rejection of the iron on examination. It would he analogous to a payment in advance of delivery. The defendants had a right to demand payment on delivery of the shipping documents, although the plaintiffs ■had had. no opportunity to inspect the iron.”

• Applying the doctrine of that case to the case in hand, it is quite .apparent that., the plaintiff, by the use by the defendants of the words “ draft B. L.,” understood that the buyers intended to pay ■upon receipt of the bill of lading, and the charge of the court was such that the jury necessarily have affirmed that such was the construction of the telegrams, and that the contract between the parties was. to that effect. Inasmuch as the finding by the jury is in accordance with our views of the law, the defendants suffered nothing by submitting the question to the jury instead of the court ruling as matter of law, as requested during the trial. (See Benjamin on Sales [Bennett’s ed.], 248, 530, § 328.)

(2) It is contended by the defendants that this action cannot be maintained for the reason that no notice was given defendants of plaintiffs intention to resell the potatoes on their account.” We think there are two answers to this position. There was evidence that on the twenty-fifth or twenty-sixth of June, by direction of the plaintiff, notice was sent to numerous wholesale commission dealers, fruit and produce dealers, in the city of Rochester; containing the following language: .

“ To whom it may concern. I will offer for sale at public auction, to the highest bidder, one carload, consisting of 200 barrels of North Carolina potatoes, in good condition, at the N. Y. C. & H. R. R. R. freight house, on Wednesday, June 27, 1894, at 3 "o’clock p. m. This s.ale is to close a deal.
“ O. C. WHITNEY.”

There was testimony that these notices were sent by mail on June twenty-sixth to several parties named, and among those named was the defendants’ firm. There was no evidence tending to contradict the evidence to which we have just referred, except that "given by the husband of one of the defendants, which is to the effect that he did not receive the notice. There is no proof that the notice did not reach the hands of one or the other; or both, of the defendants. At the request of the defendants’ counsel the court charged the jury: That if they find no notice was given to defendants of the intention of the plaintiff to resell" the goods on their account, no recovery can be had in this action.” We think that charge was quite as favorable as the defendants were entitled to, and that the evidence warranted the jury in finding that the notice was given.

In Van Brocklen v. Smeallie (140 N. Y. 75) Finch, J., in s]ieaking of the rule as to the vendor’s right, says : “ Where the second method is adopted, and the vendor chooses to make a resale, that need not be at auction, unless such is the customary method of selling the sort of property in question, nor is it absolutely essential that notice of the time and place of sale should be given to the vendee. (Pollen v. Le Roy, 30 N. Y. 556.) Still, as the sale must be fail1, and such as is likely to produce most nearly the full and fair value of the article, it is always wisest for the vendor to give notice of his intention to resell, and quite unsafe to omit it.”

(3) It is claimed that what transpired between the defendants and Mr. Foote, who was employed by the plaintiff, operated as a waiver of the liability of the defendants to the plaintiff. The evidence upon the subject of waiver was commented upon by the judge in his charge to the jury, and ke -instructed the jury that, in order to have what transpired operate to bind the plaintiff, the jury must be satisfied that Foote had the authority to represent the plaintiff and to make a waiver of the defendants’ obligations. And when the judge reached that part of the charge in which he said, viz.: “ It will be for you to determine, from all the evidence in the case, whether what Mr. Foote did was done with Whitney’s authority, and- whether in doing so he acted on correct information as to the actual existence of the contract, and as to its terms. If you find that he made a waiver because of false information McLean gave him as to the contract, then there is no waiver which binds his principal, Mr. Whitney,” we think he put the case before the jury in as favorable light as -the defendants were entitled to have the same submitted. Besides, there is no exception as to that branch of the case which presents any error for review. No other exceptions are presented requiring any special comment, or that seem to present any error which prejudiced the rights of the defendants.

Judgment and order affirmed, with costs..

All concurred, except Adams, J., not voting.

Judgment and order affirmed, with costs.  