
    Philip W. Saitta, Respondent, v. New York and Cuba Mail Steamship Company, Appellant.
    First Department,
    July 7, 1911.
    False representations —bills of lading alleged to misdescribe goods —. trade custom — proof not justifying recovery.
    A plaintiff, a fruit importer, having a contract with bankers whereby an agent of the defendant, going to a foreign country, was to purchase oranges for the plaintiff and draw against bills of lading to be deposited with the bankers' a certain amount for each box of oranges consigned to the plaintiff, as shown by said bills, who alleges that by custom of the trade the words “boxes” and “half boxes ” had well-defined meanings and that the defendant’s agent issued bills of lading falsely reciting that the defendant had received certain numbers of “boxes” of oranges, whereas in fact it had received only “half boxes,” and who seeks' to recover money.paid by the bankers on the drafts drawn against the bills of lading, must prove among other things: (1) The custom of designating “boxes” and “half boxes”' known to'the defendant’s agent; (2) a false and fraudulent misdescription of the goods sent in the bills of lading issued by the defendant, and, (3) reliance thereon by the bankers who knew of the custom and what the word “ boxes ” meant in its trade sense.
    Evidence examined, and held, that the plaintiff had failed to prove any of these essential elements of his cause of action.
    Appeal by the defendant, the Yew York and Cuba Mail Steamship Company, from an order of the Appellate Term of the Supreme Court, entered in the office of 'the clerk of the county of Yew York on the 8th day of December, 1910, affirming a judgment of the City Court of the city of- Yew York in favor of plaintiff, entered in. the office of the clerk of said court on the 22d day of April, 1910, upon the verdict of a jury, and also affirming an order of said City Court entered on the 26th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Norman B. Beecher, for the appellant.
    
      Edward W. S. Johnston, for the respondent.
   Dowling, J.:

Plaintiff, who was engaged, in business as an importer of fruit in the city of New York, in August, 1908, entered into an. agreement at that city with the.firm of Muller, Schall & Go.,' bankers, whereby Joseph H. Tinaglia and Taimo Eossi, who were about to leave for Vera Cruz,- in the republic of Mexico, in order to purchase oranges.for the New York market, might draw against bills of lading to-be deposited with'the bankers to the amount of ninety cents for each box of oranges consigned to plaintiff or for his account at the port of New York, and shown by said bills. The complaint herein sets forth that there was a trade custom in shipping circles by which the words “ box ” and “half box” had a well-defined meaning, of universal application, extending to the fixing' of freight charges and the adjustment of tariff duties as well as to the buying and selling of the oranges themselves; that Berea O’Kelly & Go., defendant’s duly authorized agents át the port of Vera Oruz, issued certain sets of bills of lading wherein and whereby the defendant “falsely and fraudulently recited” that it had-received certain quantities of “boxes” of oranges from Tinaglia and Eossi respectively, whereas, in fact it had received “half boxes ” only; that Tinaglia and Eossi drew their bills of exchange upon plaintiff’s agent and bankers, Muller, Schall & ■ Co., for ninety cents per box for the number of boxes set forth in the various bills of lading, attaching the latter to the draft; and that the bankers, relying upon the truth of the statements contained in the bills of lading, paid the drafts and delivered the bills to plaintiff, who entered the goods as “ boxes,” paid the duty thereon,and only learned that they were “half boxes ” when he endeavored to obtain the oranges at the defendant’s dock in New York city, whereupon he refused to accept them, but afterwards in order to prevent further damage because of their perishable nature, caused them to be sold for ■ account of whom it might concern, which was done at much less than the market rate for sound oranges. Plaintiff admits that he has secured the refund of the excess- of duty paid by him. The aggregate number of boxes of oranges thus shipped and set forth in the three causes of action embraced in the complaint isl,J52, whereof 1,502 were sent by Tinaglia and 250 by Eossi. In pleading each cause of action, it is averred upon information and belief that the shipper (Tinaglia or Eossi) is financially irresponsible,' and that by reason of the false and fraudulent acts of the defendant, its agents and servants, plaintiff had been damaged in a sum specified, aggregating in all $1,974.84. Upon the theory on which his complaint was drawn plaintiff would have been compelled to prove among other things (1) a trade custom among shippers, known to defendant’s agents, by which “ boxes ” of oranges had a definite meaning, as distinguished• from “half boxes;” (2) the issuance of false and fraudulent bills of lading in which the goods were purposely misdescribed' as “boxes” when they were in fact only “ half boxes; ” (3) the knowledge of, and reliance upon, the technical meaning of the word “boxes” by the bankers and" their being misled thereby, on account of which they advanced twice what otherwise would have been paid to the consignors; (4) the irresponsibility of Tinaglia and Eossi and plaintiff’s inability to- collect from them the excess thus paid. Upon the trial plaintiff changed the theory of his damages; he abandoned any attempt to prove that Tinaglia and Eossi were financially irresponsible, and he relied upon the proposition that he was entitled to recover absolutely from defendant one-half the amount of the advances made by his bankers, ■ on the ground that only one-half the amount of oranges had been forwarded which they were led to expect by the bills of lading. The total advances made by the bankers (including commissions) were $1,592.87, and for .one-half of this amount plaintiff has had his recovery. If his theory of damages had been correct he would then have been obliged to prove among other things (1) the custom before referred to, of designating “ boxes ” and “half boxes,” known to defendant’s agents; (2) a false and fraudulent misdescription of the goods sent in the bills of lading therefor issued by defendant; (3) reliance thereon by the bankers, who knew of the custom and knew what the word “boxes” meant, in its trade sense. Not a single one of these essential elements was .established by plaintiff. He made no effort to prove that the misdescription (if it existed) was willful or intentional on the part of defendant, that the bankers knew of any trade meaning attached to the word “ boxes ” or - that they .were deceived by the term used in the bills of lading. Nor did he establish any damage, for he was simply the commission agent for Tinaglia and Eossi, and for aught that appeared he might have recovered back (or been actually repaid) any excessive advances made to them. Nor'did he succeed in establishing even that there was such a custom in shipping circles, as. he claimed to exist.' - Each bill of lading described the goods in question as a certain number of “ Cajas naranjas fruta fresca,” the literal interpretation of which is “ Boxes oranges, fresh fruit.” The -only concession ’ as to the meaning of the word “cajas ” is that, it means boxes, regardless of the size thereof. While there is some testimony that boxes of oranges containing two and one-half cubic feet had been described as “cajas” by defendant on its bills of lading, it does not at all appear that smaller receptacles were not so described, while ■ the testimony of defendant’s witness is explicit, sustaining the concession, that the word “cajas” was applied to boxes regardless of size and that the freight charged by defendant was twenty-five cents per. box, without reference to its dimensions. ■

The learned trial court correctly charged the jury that plaintiff “must also show to you by the same preponderance of evidence, that there is, in the importation trade of oranges and fruit between Yera Cruz and New York, a certain trade meaning or understanding given to the word ‘cajas,’ as applied to the packages used in the trade between these ports. The con- • tention of the plaintiff is that there is a distinction, known to this defendant, and to all in the trade of importing oranges between .these ports as to the existence of three styles or measures of packages used in the shipment of. oranges; that ■there is one style known as a case, another as a box, .and another as a half box; and the plaintiff claims that the defendant willfully misstated, in their bills of lading, so many cajas ’ or boxes, and by other evidences indicated that they were carrying so many boxes, when in fact the shipments contained only half boxes.” •

In this requirement of proof laid down by the court without exception, plaintiff absolutely failed,

The determination and order of the Appellate Term and the judgment and order of the City Court must, therefore, be reversed and a hew trial ordered, with costs in this court and in the court below to appellant to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Determination, judgment and order reversed, costs in this court and Appellate Term to abide event.  