
    D. G. and W. B. Bacon vs. Winthrop W. Gilman.
    Upon a sale of hides by the plaintiffs to the defendant, through a broker, the bought and sold note was as follows : “ New York, Feb. 19,1859. Sold for account of D. G. and W. B. Bacon, to Mr. W. W. Gilman, 4045 Singapore and Penang Cow Hides, per Samuel Appleton. No allowance1 except for sea damaged. Price 12 cents per pound, cash.” Held,, that the contract was for the purchase of all the hides, at the price of 12 cents per pound, subject to a deduction from the price, at the .usual and fair rate, for any of the hides that were sea damaged.
    And that the title to the whole passed to the purchasers; and the right of the vendors, to sue for the price, followed immediately upon the delivery of the goods.
    APPEAL by the defendant from a judgment entered on the report of a referee.
    The action was for goods sold and delivered. The complaint alleges a sale and delivery by the plaintiffs to the defendant, on the 19th of February, 1859, of 1965 loose hides, and 27 bales of hides, at 12 cents per pound, except for 98 of the loose hides, which were sea damaged, which were charged at 8 cents per pound, and giving credit for $2500 paid on account, on the 4th of March, 1859, claims for the balance of the bill, $1789.28. The answer admits the sale and delivery on the 19th of February, and raises no issue except as to the number sold and delivered. It expressly admits the sale and delivery, on that day, of hides to the amount of $3110.88. The hides, which were the subject of sale, were a lot which had been landed from the ship Samuel Appleton, and which, at the time, were on storage in the warehouse of Hicks & Co. The sale was through a broker, and the contract of sale was in writing, as follows: •
    “Hew York, Feb. 19, 1859.
    Sold for account of D. G. & W. B. Bacon, to Mr. W. W. Gilman, 4045 Singapore and Penang Cow Hides, per Samuel Appleton. Ho allowanóe, except for sea damaged. Pi’ice 12 cents per pound, cash.”
    The referee found that the delivery was made, as is usual with goods on storage, by a delivery order on the warehouseman, and that such an order was given on the 23d of February, directing the delivery to the defendant of the whole quantity of hides sold to him. On that day the loose hides were weighed and taken away by the defendant. The lot consisted of 1867 loose hides, and 98 culls, or sea damaged hides, weighing in all 21,782 pounds, and about those there has never been any controversy. On the 9th of March, the bales, 27 in number, were weighed and taken away by the defendant to his own store. These weighed 14,522 pounds, less 108 pounds for tare. This made up the entire lot called for by the contract. The referee further found, that the bale hides, when delivered, had not been opened or particularly examined by the defendant, but that on the 22d of April he opened and examined them, and claimed that 1309 of the bale hides were sea damaged. The plaintiffs denied that any of them were sea damaged, and this was the question of fact tried by the referee. The referee found that in fact only 130 of the bale hides were sea damaged. The defendant having paid 12500, refused to pay the balance of the bill, and this action was commenced to recover it, on the 4th of May. Afterwards, on the 14th of May, the defendant notified the plaintiffs, that unless they took away the 1309 hides, which he had alleged to be sea damaged, he would store them for their account. In fact, however, they were never returned, nor has there ever been, to this day, any determination by inspection, as to which of the hides were sea damaged, or any separation of them from the rest; but the referee found the number, by weighing the conflicting evidence on the subject, introduced upon the trial. The referee further found that the right of the defendant, as to the sea damaged, was to have an allowance by reason of sea damage, to the extent of one half the contract pi’ice, viz., 6 cents per pound, but not to return them. He was simply to pay half price for the sea damaged. There was conflicting evidence as to the usage in such cases, but the finding of the referee, as to the extent of the allowance, was sustained by the testimony of the defendant himself, that half price is the usual price paid for sea damaged hides. And that as to the sea damaged among the loose hides, he actually agreed with the broker to pay half price. The referee, accordingly, reported in favor of the plaintiffs for the balance due, deducting 6 cents per pound for the 130 hides found to have been sea damaged.
    The case was tried once before by the same referee, but on the defendant’s appeal a new trial was granted on the ground of an improper exclusion of evidence, which, on the second trial, was admitted. On the former hearing at general term, Ingraham, P. J., suggested that the suit was prematurely brought. But the facts found by the referee on that trial were very different. The suggestion of the learned judge was based upon the «supposition that there was an agreement between the parties, that the hides were to be opened and examined, and the portion of the hides that were sea damaged was to be ascertained and returned; that the sea damaged were not bought, and that the examination had not been made before the commencement of the action. The referee had, indeed, by his first report, found that the defendant had the right to reject and return to the plaintiffs the sea damaged, and had left it uncertain whether the defendant’s examination was after or before the commencement of the action, but had, in his opinion, implied that it was after. But now, in the new report of the referee, on further consideration and the additional evidence, it was found by him that there was no right to reject or return ; that all were bought which were delivered, and that the only right as to the sea damaged, was to keep them and pay half price for them. And also, that the defendant’s examination was on the 22d of April, twelve days before the commencement of the suit, and that at that time he ascertained and separated the 1309 which he claimed to be sea damaged.
    
      Charles S. Clover, for the appellants.
    
      Joseph H. Choate, for the respondent.
   By the Court, Cardozo, J.

The case stands differently now from what it did when previously presented to the general term. It seems to me it only involves a question as to the construction of the agreement, evidenced by the bought and sold note read in the light of the testimony, from which the referee has found that the whole of the property was sold and delivered to the defendants. I "think it clear that the contract was for the purchase of all the hides, at the price of 12 cents per pound, subject to a deduction from the price, at the usual or fair rate, for any of the hides that were sea damaged. So construed, it is plain that the title to the whole passed to the defendant ; and that the right to sue for the price followed immediately upon the delivery of the goods.

[First Department, General Term, at New York,

November 7, 1871.

The judgment should be affirmed.

Ingraham, P. J., and Cardato, Justice.]  