
    Theodore Reimers et al. plaintiffs, vs. John P. Ridner, et al. defendants.
    1. A sale of goods “ to arrive,” is a mere executory contract, conditional on tlieir arrival, and not a transfer of title; and the purchaser may reject a partial and insist upon a full performance of the contract. If less than the amount contracted for arrives, he is not hound to accept that as a performance.
    2, The plaintiffs sold to the defendants a certain number (733) of bags of crude saltpetre, at a spbified price (15 cents) per pound, cash in boud, to arrive on board a certain ship, (Arabella,) without guaranty as to quality, or time of arrival of the ship, The ship arrived with part (340 bags) of the saltpetre in an unsound and ■unmerchantable condition. The plaintiffs tendered the portion in a sound condition (393 bags) to the defendants, who refused to accept or pay for the same. Held that a tender of less than the whole quantity of saltpetre sold, did not satisfy the requirements of the contract, and the defendants were'not bound to accept it.
    Before Robertson, Ch. J., Moncrief and Monell, J.J.)
    Heard January 4, 1864;
    decided January 30, 1864.
    The complaint in this case alleges that the defendants, on or about the 25th day of September, 1855, at the city of Hew York, entered into a contract in writing with the plaintiffs, whereby the defendants bargained for and bought of the plaintiffs, and the plaintiffs, at the instance and request of the defendants, then and there “ sold to the defendants seven hundred and thirty-three bags of crude saltpetre, at fifteen cents per pound, cash in bond ; that the same was to arrive on board the ship Arabella-, from Calcutta bound to Boston ; no guaranty as to quality, or time of arrival of said ship5 and the same to be taken when landed from alongside the ship in Boston.” That the said ship with the saltpetre on board arrived at Boston on or about the 3d day of December, 1855; ® * ® ® that immediately after the arrival of the said ship as aforesaid, to wit, on or about the 11th day of December, 1855, the plaintiffs offered and tendered said saltpetre to said defendants,” &c. ® * ® That the defendants, at the time aforesaid, when so requested, and at all times thereafter, have neglected and refused to receive said saltpetre, or any portion thereof, or to pay for the same, and then and there and at all times thereafter, have wholly neglected and refused to comply with their undertaking or contract.
    The complaint further shows, " that on or about the 24th day of December, 1855, upon inspection of the said saltpetre, three hundred and forty bags thereof were found to be unsound and unmerchantable, and that thereupon the plaintiffs waived their right to accept the whole amount or number of bags of saltpetre, but tendered and offered to deliver to the defendants the remainder thereof, to wit, three hundred and ninety-three bags thereof, (being sound and merchantable,) * ® ® and the plaintiffs were then ready and able and willing so to deliver the said saltpetre ; that the defendants at the time aforesaid, and at all other times, have neglected and refused to receive said saltpetre, or any portion thereof, or to pay for. the same, and have wholly neglected and refused to comply with their said undertaking or contract.”
    The answer of the defendants denies that they bargained for and bought of the plaintiffs, and that the plaintiffs sold to them, seven hundred and thirty-three bags of crude saltpetre, or any part thereof; but'the defendants aver that on or about the 25th day of September, 1855, they, the defendants, entered into a contract with the plaintiffs, of which the following is a copy:
    “Few York, September 25th, 1855.
    “ Sold to Messrs. Ridner, Thiel & Oo. for account of Messrs. Reimers & Schmidt, seven hundred and thirty-three bags crude saltpetre, at 15 cents per lb. cash, in bond, to arrive on board the ship Arabella, from Calcutta bound for Boston. Fo guaranty made as to quality, or time of arrival of said ship ; to be taken when landed alongside of the ship in Boston.
    (Signed,) Babcock & Cox, Brokers.”
    * * -» The defendants deny that they ever became the owners of any part of said saltpetre. * * * They aver that the plaintiffs never were the owners or possessed of other than three hundred and ninety-three bags of saltpetre on board of said ship Arabella, * * and they deny neglect or refusal to comply with their undertaking or contract. * * *
    It seems that an invoice of 1467 bags of saltpetre was shipped on board the ship Arabella ; that this shipment belonged to W. S. Bullard, and was the only saltpetre on board of that vessel; that on the 11th August, 1855, for account of the said W. S. Bullard, Esq. a broker in Boston “ sold to the Hazard Powder Co. one half of an invoice of saltpetre to arrive per ship Arabella from Calcutta, say about 783 bags, more or less, (inv. 1468 bags,). at 8 cents per lb. 6 months credit from delivery on the wharf. Fo guarantee as to quality or time of arrival.” It further appears that on the 12th September, 1855, a contract, of which the following is a copy, was duly made by a broker and confirmed by said Bullard ;
    “ Boston, Sept. 12, ’55.
    
    “ Sold on account W. S. Bullard, Esq. one half of 1464 bags saltpetre, on board the ship Arabella, to arrive, at ten and one half cents per pound, cash in bond, (it being understood that the purchaser is to have one half of each number in the invoice,) to Messrs. Reimers & Schmidt, of New York.
    ' (Signed,) F. H. Jackson, Broker,
    Confirmed, W. S. Bullard,”
    It was admitted that 340 bags of saltpetre, to arrive in the Arabella, -referred to in the complaint, were nearly or quite lost or destroyed, and were sold upon their arrival on account of the underwriters, (part of the same being entirely dissolved by sea water), that the same was abandoned by the original importer, (W. S. Bullard, Esq.)
    The Arabella arrived on the 7th December, commenced discharging the saltpetre about the 15th, and finished on the 24th ; the one half of the invoice sold to the plaintiffs was sold to arrive in bond; it was entered in Mr. Bullard’s name ; i t must be entered by the importer ; Mr. Bullard held the bills of lading for this saltpetre ; he had not assigned the bill of lading or any part thereof to Reimers & Schmidt, (plaintiffs.) A certificate of transfer issued by the custom house authorities constitutes a delivery of goods in bond, from the importer to the purchaser ; Mr. Bullard did obtain such a certificate of transfer of these 393 bags sold to the plaintiffs ; he obtained this certificate the 7th of January, 1856 ; it was mailed the same day to the plaintiffs ; the plaintiffs or their assigns could not have obtained the 393 bags of saltpetre without this certificate of transfer. The plaintiffs paid for the saltpetre between the 22d December, 1855, and the 2d January, 1856. The plaintiffs could not deliver the saltpetre they purchased from Mr. Bullard until the 7th January, 1856.
    • The plaintiffs, on the 12th January, 1856, made a formal tender, through their attorney at law, to the defendants, and they replied: We cannot accept it, (393 hags of saltpetre,) as the contract calls for different things,” or words to that effect.
    The action coming on to be tried before a justice of this court and a jury, the defendants, upon the case being opened, moved to dismiss the complaint; the court overruled the motion, and to its decision in that behalf the counsel for the defendants duly excepted. The counsel for the defendants, upon the case being rested on behalf of the plaintiffs, renewed his motion to dismiss the complaint; the court overruled the motion, and to its decision in that behalf the counsel for the defendants duly excepted. After introducing some testimony, the defendants again moved to dismiss the complaint, which motion was denied by the court, and the defendants’ counsel duly excepted. The defendants’ counsel thereupon requested the court to instruct the jury to find a verdict for the defendants ; the court declined so to do, and the defendants’ counsel excepted. Thereupon the court directed the jury to find a verdict for the plaintiffs for $4296.95, and “ directed the exceptions taken at "the trial to be heard in the first instance at the general term, and judgment (in the meantime to be) suspended." To this direction the counsel for the defendants duly excepted.
    
      R. W. Van Pelt, for the plaintiffs.
    I. The first exception of the defendants, on. the refusal of the court to .dismiss the complaint, is not well taken. The complaint does state facts sufficient to constitute a cause of action, and it does allege a willingness, readiness, and ability on the part of the plaintiffs to perform their part of the said contract.
    II. The testimony in reference to the plaintiffs’ willingness to deliver the saltpetre from alongside the ship was proper, and the defendants’ objection thereto was not well taken.
    III. On the 26th December, two days after the saltpetre was fully discharged, it was worth trom 16 to 17 cts. per lb. which was the maximum price it had attained pending this whole transaction, and being two cents per lb. more than the defend- . ants had contracted to give the plaintiffs for it.
    IV. The proposition that the plaintiffs were bound to deliver alongside the ship, and because they did not, that the defendants are discharged from the contract, is not sound. The contract was, that the cash was to be paid when the saltpetre was-entered in bond. Both parties contemplated the entering of saltpetre in bond, and therefore the contract was subordinate to the rules and regulations of the Custom House. But ■ there was no law or regulation compelling saltpetre entered in bond to be sent to the public store. . And this lot might have been discharged alongside, only the quantity was so great it could not be weighed in one day, and it would have to lay on the wharf over night, which the Custom House officers would not permit. The plaintiffs also notified the defendants that there would be no additional charge to them for this. ■ Delivery of the saltpetre according to the exact terms and in the exact mode stated in the agreement was not necessary.- A substantial performance was sufficient, provided no injury or inconvenience was occasioned thereby, and provided also that the exact mode of performance be not an essential consideration. (Story on Sales, § 251.) . The answer alleges that the plaintiffs were the'owners of 393 bags. The fact that the number of bags contracted to be sold was stated in the contract at 733, and the quantity actually delivered or tendered was 393 bags, does not excuse the defendants from taking the latter quantity, because the contract was by. its very terms severable. The consideration was capable of apportionment, and the exact quantity was not of the essence of the contract. The defendants were, therefore, bound to carry out the contract and take as many pounds at 15 cents per lb. as the plaintiffs could deliver. (Story on Sales, §§ 240-242 ; on Contracts, § 16. Havemeyer v. Cunningham, 35 Barb. 515.) . The defendants having unreasonably refused to accept the saltpetre, the title to which had been properly passed to them, the plaintiffs had the right, and it was their duty, after allowing a reasonable time to elapse, to sell it at auction, and hold the defendants responsible for the difference between the original price and the net sum. which it brought. (Story on Sales, § 402.)
    
      James Eschwege, for the defendants.
    I. The complaint does not state facts sufficient to constitute a cause of action, and should be dismissed on that ground.
    1. The plaintiffs do not allege that they were ready and willing to perform the contract on their part, or that they tendered or demanded performance thereof.
    2. The complaint shows affirmatively that the plaintiffs were not ready to perform, and that they did not and could not tender performance of the contract on their part. The contract upon which this action is brought is executory; its conditions are mutual and dependent; the defendants are to pay for, the plaintiffs are to deliver 733 bags of crude saltpetre in bond, to arrive on board the ship Arabella, token landed, and from alongside the ship, in Boston. Neither party can recover, unless readiness and willingness to perform on his part, and tender, are alleged. (Dunham v. Mann, 4 Selden, 508. Lester v. Jewett, 1 Kern. 453. 12 Barb. 502. Williams v. Healey, 3 Denio, 368. West v. Newton, 1 Duer, 277.) (a.) The contract requires the plaintiffs to deliver 733 bags ; the complaint alleges a tender of 393 bags only, and is fatally defective on that ground ; the contract is entire, and the defendants are not bound to receive a part of the whole quantity only. (Russell v. Nicoll, 3 Wend. 112. Davenport v. Wheeler, 7 Cowen, 231. Champlin v. Rowley, 18 Wend. 187. Waddington v. Oliver, 5 Bos. & Pul. 61. Paige v. Ott, 5 Denio, 406. 2 Pars, on Cont. 163, 170. Oakley v. Morton, 1 Kern. 25.) (b.) No allegation of a waiver on the part of the defendants as to quantity is contained in the complaint. (Baldwin v. Munn, 2 Wend. 399. Oakley v. Morton, 1 Kern, 25, 33.) (c.) The contract required the plaintiffs to deliver the saltpetre from alongside the vessel; the complaint does not allege readiness and willingness so to deliver, but the reverse ; the plaintiffs aver that by the laws and statutes, rules and regulations, &c. they were prevented from delivering from alongside the vessel. The defendants were entitled to such delivery, which not having been tendered by the plaintiffs, they cannot recover ; the complaint is bad for not alleging such tender. (2 Parsons on Cont. 184, 187, et seq. 6 Term Rep. 710. Moakley v. Riggs, 19 John. 71. Carpenter v. Stevens, 12 Wend. 589. West v. Newton, 1 Duer, 277. Beebe v. Johnson, 19 Wend. 500. Story on Sales, § 251. 2 Story on Contracts, § 968.)
    II. The complaint should have been dismissed when the plaintiffs rested.
    1. Because it appeared that the plaintiffs were not ready to deliver, and did not tender the quantity stipulated. (Fischell v. Scott, 28 Eng. Law & Eq. Rep. 404, cases cited supra under a.) And evidence tending to establish a waiver on the part of the defendants does not cure this defect. (Baldwin v. Munn, 2 Wend. 399. Holmes v. Holmes, 5 Seld. 525.)
    2. Because it appeared that the plaintiffs were not ready to deliver, and did not tender at the time stipulated, namely, when landed. (Friess v. Rider, 24 N. Y. Rep. 367. 2 Story on Contracts, § 970, a; § 971.) Delivery could only be tendered and consummated by the proper custom house certificate this was not in the possession of the plaintiffs before the 8th of January ; the saltpetre was landed on the 24th of December ; one half of the whole quantity had been delivered on the 20th of December to other purchasers, and between these dates saltpetre had depreciated in value 21/2 cents per pound the defendants had repeatedly demanded the custom house certificate. Time becomes material in an agreement where delay diminishes the value of the thing contracted for. (Decamp v. Fear, 5 S. & R. 323.) The plaintiffs could not tender what they did not possess.
    3. Because it appeared that the plaintiffs were not ready to deliver, and did not tender in the manner stipulated, namely, from alongside the vessel. Ho law, statute, rule or regulation prevented the plaintiffs from delivering according to contract. Sudh delivery is a condition precedent, the defendants were entitled to, and did insist upon its performance, and without such condition would not have made the purchase. (Cases cited supra under c. Worsley v. Wood, 6 Term Rep. 720. 2 Story on Contracts, 543.)
    IV. The plaintiff's are not entitled to recover, even if the defendants were in default. On the 24th of December, when all the saltpetre was landed, and the plaintiffs were bound to deliver, and the defendants to receive, the market price was higher than the price stipulated in the contract.
    V. The learned judge, erred in directing the jury to find a verdict for the plaintiff's, thus taking from the jury the question of fact whether the defendants did or did not demand from the plaintiffs the custom house certificate. The testimony on this question is conflicting. (Purchase v. Mattison, 25 How. Pr. Rep. 161. Cobb v. Cornish, 16 N. Y. Rep. 602. Gilbert v. Beach, Id. 606.)
    VI. The complaint should be dismissed for not stating a cause of action, or the verdict should be set aside, and a new trial granted, with costs.
   Moncrief, J.

This action is brought upon a written contract of sale of saltpetre; in plain terms, entitling the defendants to receive from the plaintiffs when landed in Boston, alongside of the ship Arabella, 733 bags crude saltpeter, to arrive on board the said ship; and there is an ample illustration in the bill of exceptions in this case, of the peculiarities of mercantile contracts; and the necessity of giving construction to each, according to the intent of the contracting parties, manifest from their respective contracts. By the sale note from Bullard to the Hazard Powder Co. following the decision in Havemeyer v. Cunningham, (35 Barb. 515, 521,) the latter was entitled as a purchaser of an invoice of goods then on board the ship Arabella, to whatever portion of the quantity sold arrived in a sound condition, and they received their one half part of the invoice so purchased. The plaintiffs’ contract calls for “ the one half of 1464 bags saltpetre,” and hence, in my view, differs most essentially from the agreement to deliver one hale of an invoice of saltpetre, to arrive per ship Arabella, say about 783 bags more or less.” * * The one can legally claim 732 bags of saltpetre from on board the vessel Arabella. The other having bought the moiety of whatever is on board and may arrive at the port of destination, of course is entitled to demand what may arrive. The distinction between the sale to the Hazard Powder Oo. and the case cited from 35 Barb. {supra,) is that in the one there was no guarantee as to quality, and in the other “ the sugar was to be of current quality clayed; ” this, however, is immaterial in the present discussion, inasmuch as in both these instances the contract of sale must be held to be absolute in the sense that the party was entitled to the thing he had agreed to buy, being then on board of vessel. (35 Barb. 519.) With reference to the contract made with the plaintiff, it may be questionable whether they were bound to receive under it any greater number of bags than 732, being the one half of 1464 bags of saltpetre on board of the ship Arabella on the 12th September, 1855.” If on that day on board of that ship, there was in existence only 786 bags of saltpetre, it can need no argument to state as a legal verity, that Mr. Bullard could not by virtue of the contract require the plaintiff to accept 393 bags, being the one half of the saltpetre actually arriving at Boston, and delivered from on board the ship Arabella, unless their contract is construed to import a sale of half of the invoiced saltpetre then on board of the ship Arabella. (2 Ell. & Bl. 836. 23 Law. J. 2 B. 27.)

It is an elementary principle of law, that if the right of property has not passed by the bargain, the purchaser cannot be made responsible for the price, unless the vendor can show that the article or chattel tendered for acceptance, fairly corresponded in quantity * * with the things bargained for and agreed to be bought; for no man can be compelled to take more than he agreed to buy. (2 Pars. on Cont. 163. Pars. Mer. Law, 53. 1 Campb. 53, 361. 15 M. & W. 85. Hart v. Mills, 15 Law J. Exch. 200. Addison on Contracts, 238, p. 237, top paging, 2 Amer. ed.) It will not be pretended that in either Havemeyer v. Cunningham, (supra,) or by virtue of the contract of Bullard with the Hazard Powder Co., the importer or vendor was divested of his property, or that the title to the goods passed to the vendee.

The weight of the articles remained to be ascertained. (Add. on Cont. 224, 225, and cases cited. Pars. Mer. Law, 48, 49.) The evidence fully establishes the fact, in the present case, that the title to the goods remained in Mr. Bullard until the 7th January, 1856. At any time subsequent to the 11th August or 12th September, 1855, he could have assigned and transferred the title to the saltpetre on board of the ship Arabella by the indorsement and delivery of the bills of lading which he then had, and which he continued to hold until after the arrival of the ship at Boston. In confirmation of this view, Mr. Bullard abandons property to the underwriters, and-receives payment therefor from them, which property, otherwise was owned by the plaintiffs or by the defendants.

Again : the transaction betwéen these parties on the 25th September, 1855, cannot be treated as an absolute sale of 733 bags of saltpetre at that time; it does not appear that such a quantity which could be claimed by the plaintiffs under their contract with Bullard, was in existence on board the ship Arabella on that day; only 393 bags arrived at Boston, over which the plaintiffs exercised acts of ownership or control, or became entitled to the possession.

The contract of the plaintiffs with the defendants, called for the delivery of 733 bags of saltpetre from on board the ship Arabella, to be taken when landed alongside the ship at Boston; the plaintiffs could not be required to transfer any greater, and the defendants as plainly cannot be compelled to accept any less number of'bags of saltpetre, than they had agreed to purchase, and the plaintiffs contracted to deliver. (Kelley v. Upton, 5 Duer, 336.) The tender of a number less than 733 bags of saltpeter, did not satisfy the requirements of the contract on the part of the plaintiffs, and the defendants were not bound to accept. Shields et al. v. Pettie et al. (4 Comst. 122); S. C. 2 Sand. S. C. Rep. 262,) is in striking analogy with the agreement between these parties, and is decisive of the question involved.

Upon the evidence in the case, I am of the opinion that the learned judge erred in not directing a verdict for the defendants) and in my opinion the refusal to dismiss the complaint upon the plaintiffs resting their case, was also erroneous; a verdict of a jury for the plaintiffs, upon the evidence then introduced cannot be sustained.

In this view, the other exceptions need not be,'and are not noticed;

The exceptions should be sustained, and a new trial directed, with costs to abide the event.

Robertson, Ch. J.

The sale, in this case, was of goods to arrive; it was, therefore, a mere executory contract, conditional on their arrival, (Shields v. Pettie, 4 N. Y. Rep. 122; S. C. 2 Sandf. 262 ; Benedict v. Field, 16 N. Y. Rep. 595 ; S. C. 4 Duer, 154,) and not a transfer of title. The only question is,, whether the contract was for the delivery of so much of the amount sold as should arrive, and therefore apportionable, or only of the specified amount. In Havemeyer v. Cunningham, (35 Barb. 515,) the contract was of an invoice of goods, of a certain number of tons, “ more or less,” and for that reason only, it was held that the seller was only bound to deliver what arrived, and was not responsible for any loss on the voyage. In the present case, the contract was for a definite number of bags of saltpetre, although not for a specified quantity. There does not seem to be any good reason, why a purchaser of goods at sea, of whose quantity he cannot be presumed to be aware, should be compelled to accept part of the quantity bought by him, any more than if they were in a distant warehouse. The fact that such goods have not arrived, merely postpones the execution of the contract, and without some qualification in its terms, ought not to affect the right of either party. In the case last cited, the principal question was whether the terms “ to arrive on or before” a certain day, used in it, made the sale absolute, or conditional on the arrival, on or before that day, and it was held to be absolute on arrival, whenever it happened, merely postponing the time of delivery, distinguishing it from Russell v. Nicoll, (3 Wend. 112,) only by the insertion of the name of the vessel. The obligation of the seller only to deliver what arrived, in such a case, sustains a correlative obligation on the part of the buyer to accept it. But unless the former obligation had been limited by the use of the words “ more- or less,” and “invoice,” the purchaser, by whom the action was brought, could not have been enabled to recover for non-delivery of the cargo actually arrived, if less than the amount specified, as embracing the whole of the contract. All the reasons, which in the case of any other contract entitle the party seeking to enforce it, to reject a partial, and require a full performance, equally applies to such an one. Less than the full amount contracted for, may baffle all the purposes of a buyer. His right to insist on a complete performance, is established by numerous authorities.

Besides, there was on hoard the vessel, on its arrival, the full number of bags of saltpetre required to be delivered by the contract, although nearly one half had been lessened ibulk, by the dissolving of part of the contents by water. These were transferred to underwriters by the plaintiffs, or those under whom they claim, by abandonment. There was no guaranty of quality in the contract, and the price was to be regulated by weight. I see no reason why the defendants were not entitled to whatever remained of the saltpetre -in the bags, which were abandoned. It was held, in Havemeyer v. Cunningham, (ubi supra,) that the purchasers were entitled to recover for the part of the cargo alleged to have been injured.. They were, at least, entitled to an election. Possibly, if such goods were unmerchantable, as charged in the complaint, as the defendants would not be bound to accept them, the plaintiff was not bound to tender them ; but the evidence did-not sustain this view.

Without regard to the mode of delivery, I, therefore, concur in the opinion that the defendants are entitled to a new trial, with costs to abide the event.

Monell, J. concurred in the result.  