
    The Abe Stein Company, Respondent, v. Julius Robertson, Appellant.
    
      Bill of sale of goods to be shi$rped—damages for a failure to deliver the goods.
    
    -Under an instrument which reads :
    “ Sold for account of Messrs. L. F. Robertson & Son.
    “To the Abe Stein Company.
    “ About 85,000 Teintsin goat skins, firsts, If to 2 lbs. avg., expected to arrive from China, at 22 cts. per lb. Goods to be shipped immediately by steamer or steamers to New York. * * *
    “ Skins to be of the usual good quality of this province; any question of quality to b§ decided by selling brokers, and their decision to be final and binding on both parties,” accompanied by an arrangement between the parties “ that the usual condition of' no arrival, no sale,' holds true,” a failure on the part of the vendors to deliver goods of the quality required by the contract entitles the buyer tó the damages resulting from such failure.
    Appeal by the defendant, Julius Robertson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29tli day of October, 1898, upon the verdict of a jury rendered by direction of the court, and.also from.an order entered in said clerk’s office on the 7th day of November, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles M Jtushmoré, for the appellant.
    
      8., Iveingston Samuels, for the respondent.
   Rumsey, J. :

On the 24th of May, 1895, the defendant entered into a contract with the plaintiff, of which the following is a copy;

' ■ “ New York, May 24th, 1895. ■
Sold for account of Messrs. L. F. Robertson & Son.
“ To the Abe Stein Company.
About 85,000 Tientsin goat skins, firsts, If to 2 lbs. avg., expected to arrive from China, at 22 cts. per lb. Goods to be shipped immediately by steamer or steamers to New York.
About -| of lot to be medium black haired skins,, and the remainder white or gray haired skins, of which- 40% medium hair, 60%: medium to long hair.
“ Skins to be of the usual- good quality of this province; any question of quality to be decided by selling .brokers,. and their decision to be final and binding on both parties.
“ Terms net cash and to be taken from the "wharf. ■
“ JOHN ANDRESEN & SON,
“Brokers? '

Two days afterwards it was arranged between the parties that the usual condition of 1 no arrival, .no sale,’ holds true, and that the sellers are to notify yon Upon what vessel or vessels the goods are shipped.” Subsequently the sellers notified the broker of the árriv$l-;;pf a portion of the goods,, which were inspected by him, but he. determined that they were not of the quality prescribed in-,the .corit-raet. As subsequent shipments were received, they also were examined by the broker, and he reached the same conclusion with regard to them. The plaintiff, therefore^ refused to receive them, and brought this action for the damages which it had sustained by the failure to deliver the goods contracted for.. Upon the trial there was - no serious question of the amount of damages, and a verdict" was ordered for the plaintiff for the amount proved, upon which.a judgment was entered. A motion was made for- a new trial, which was denied,' and from the order and judgment the defendant tabes this appeal.

It is urged by the deféndant that the contract .was conditional, not only as to its performance, but as to its existence, and that because it contained the condition that if there was no arrival of the goods there was no sale,, if the goods specified in the contract, of the quality therein prescribed, did not in fact arrive,-therefore, the contract was at an end; and he based his argument for a reversal of this judgment upon that proposition, and enlarged upon it in his supplemental brief, which we have considered. • .

It is quite true that in the case of .the-sale of goods already in transit," where there is no warranty that the shipment has been made, and where the fact.of-shipment maybe uncertain,, the existence of the contract itself is condition!al- upon, the;arrival "of thegoods of the quality which is specified in it. (Shields v. Pettie, 4 N. Y. 123.) In such contracts, if the goods contracted for do not arrive, either because the vessel is lost, or for any other reason,, without fault or fraud of the seller, the contract is at an end. (Benj. Sales, § 578, et seq. ; Neldon v. Smith, 36 N. J. L. 148,154.) But such a condition as to the existence of the contract has never been held to arise where the contract either contains a warranty that the shipment had been made (Benj. Sales, § 580, et seq.), or an. express agreement on the part of the seller to make the shipment within a specified time. (Norrington v. Wight, 115 U. S. 188; Bowes v. Shand, 2 App. Cas. 455.) In such a case the contract becomes at once an existing contract, and the agreement as to the quality of the goods is a condition precedent to their receipt by the buyer, which must be performed by the seller; and unless he ships goods of the quality required by the contract, he fails to perform it and the buyer is entitled to damages for such failure (Clark v. Fey, 121 N. Y. 470; Eppens, Smith & Wiemann Co. v. Littlejohn, 27 App. Div. 22), because, as the seller has expressly agreed to ship the goods, a failure to arrive resulting only from his failure to ship, as caused by the default of the seller, does not operate to relieve him from his contracts. In this case, the contract containing the provision that the goods were to be shipped immediately by steamer or steamers to Few York, the defendant was bound to ship goods of the quality required; and if he failed to do it, he was liable for a breach of the contract.

By the contract, the question of quality was to be decided by the selling brokers, and their decision was to be final and binding on both parties. It is not disputed that the selling brokers decided that the goods were not skins of the usual quality of the province of Tientsin, which, by this contract, they were to be. It is not claimed that there was any fraud or mistake, or collusion, on their part, and, therefore, their decision upon that point was final. (Sewer Comrs. v. Sullivan, 11 App. Div. 472; Wahl v. Barnum, 116 N. Y. 87.)

For these reasons the judgment and order appealed from was correct and must be affirmed, with costs to the respondent.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.

Judgment and order affirmed, with costs.  