
    Lascelles et al. v. Miller.
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    Sale—Action for Price—Damaged Goods.
    Plaintiffs entered into contract to sell defendant bananas to be shipped on defendant’s steamer from the West Indies, with the provision that they should not be cut until the steamer arrived. When the steamer arrived the fruit had been cut several days, but it was accepted by the captain of the steamer, andftaken to New York, where it was sold by defendant at a loss, on account of its damaged condition. Held, that defendant was liable for the price of the fruit, less the amount of damages sustained by reason of its being cut before the arrival of the steamer.
    Appeal from circuit court, New York county.
    Action by Alfred S. Lascelles, Eliot A. De Pass, and Joseph L. Myers against John Miller. There was a judgment on a verdict for plaintiffs, and an order denying a motion for a new trial, and defendant appeals.
    Argued before Van Brunt, P. J., and Daniels and Babrett, JJ.
    
      Goodrich, Deady & Goodrich, (John A. Deady, of counsel,) for appellant. Johnson, Gallup <& Hurry, (A. Gallup, of counsel,) for respondents.
   Van Brunt, P. J.

This action was brought to recover upon a contract made by the defendant with plaintiffs for the purchase of bananas and oranges to be shipped by the steamer Blanche Henderson, owned by the defendant, at Jamaica, West Indies. The plaintiffs and defendant had some conversation in reference to the probabilities of procuring a cargo of bananas at Jamaica, which resulted in the plaintiffs telegraphing to their agent at Jamaica on the 8th of November, 1886, in pursuance of the instructions of the defendant to secure immediately oranges and bananas, “which must not be cut until the steamer arrives.” Mr. Lascelles, one of the plaintiffs, testified that on the 19th of November he had another conversation with the defendant, who had called at the office and inquired if anything had been heard of the arrival of the Blanche Henderson. Mr. Lascelles states that he told him that up to that time they had no cable advice of her arrival; and he also told him at the same time that they had received a letter from their Kingston agents, dated the early part of November, in which they said that they had their telegram ordering the fruit, and that it would be next to impossible to carry out the proviso of “not cutting the fruit before the vessel arrived.” Mr. Lascelles further testifies that the defendant told him to send a telegram to Jamaica to inquire whether the Blanche Henderson had arrived, and that he informed the defendant that his agent had written him that the proviso in regard to cutting the fruit before the vessel arrived could not be carried out. The defendant did not make any reply to Mr. Lascelles. The steamer did not arrive at Kingston until the forenoon of the 22d of November, and was not ready to load until the 23d. The bananas had been cut, and on the wharf of Kingston, several days before the steamer arrived, and the bananas which were shipped on board of the steamer at other points in Jamaica had also been cut and ready for shipment several days before the arrival of the steamer. The bananas were received on board by the captain of the steamer, and were brought to New York, and, upon their arrival, both bananas and oranges were found to be in a very bad condition,—almost worthless; realizing, upon the sale thereof, the sum of $1,600 only. The plaintiffs brought this action for the price agreed to be paid for the fruit, and upon the trial the only question which was submitted to the jury by the learned court below was whether or not the jury were satisfied, from the evidence, that the parties had agreed to so modify the original order that was given that the condition that the bananas should not be cut until after the arrival of the steamer was not to be insisted upon; and, if they had not, what damages the defendant had sustained by the breach of the instruction not to cut the bananas until arrival of vessel.

It is claimed upon the part of the appellant that there was no evidence whatever which justified the submission of any question as to the modification of the contract to the jury; and it would appear from the previous part of the charge of the learned judge that such was his opinion, because he states that it was undisputed that the first order for these bananas was that they should be cut after the steamer arrived, that the plaintiffs said that they would not undertake to carry that out, but that the defendant gave him another order, and he told him jo telegraph such order to Jamaica. Plaintiffs said they would, but did not know that they could make an agreement on that basis. If this was the condition of the evidence, then no authority was given to the plaintiffs to give any other order than that which was contained in the telegram- namely, that the bananas should not be cut until the arrival of the steamer. It does not appear that prior to the 18th or 19th of November, and after these bananas had been cut, any communication was made to the defendant that the plaintiff had received word from his agents that this part of the order could not be complied with. We have examined the record in vain to find any other instruction given by the defendant to the plaintiffs than that the bananas must not be cut prior to the arrival of the steamer. It is true that the defendant was informed that it would be next to impossible to comply with this order; but, notwithstanding this statement, the defendant in no way altered or modified his instructions, neither was any such modification hinted at' in the telegram authorized to be sent. The defendant, therefore, took the risk, in case of the impossibility of procuring the bananas under the condition which he had placed upon the order, that his ship should not receive the desired cargo; and this was a risk he had a right to assume, or not assume. There was no authorization given, as far as we can ascertain, on the part of the defendant, as to the cutting of those bananas contrary to the instructions which had been given. Under these circumstances, therefore, it would appear that, not having authorized any variation from the orders which he had given, if such variation resulted in damage the defendant had a right to recover the same from the plaintiffs. The captain of the vessel, if he knew of the instructions and circumstances under'which the order was given, would have been justified in refusing to accept the cargo; but, by the acceptance of the goods, the defendant, in the first instance, became liable for the purchase price, subject, however, to his right to offset any damages which he may have sustained by reason of the failure of the plaintiffs’ agent to comply with the instructions which had been given. The jury evidently found that the contract had not been modified, and that the defendant was entitled to be credited upon the purchase price with the amount of damages sustained by reason of the breach of the provision that bananas were not tobe cut until after arrival of vessel; hence no harm was done to the defendant by the submission of the question of modification to the jury. Indeed, no objection seems to have been made to the submission of this question to the jury; the only point taken being that there could be no recovery at all, if the jury found that the order had not been modified. The case was thus submitted to the jury in as favorable light for the defendant as the facts proven permitted. The defendant could not accept the goods and sell them, and then, with the proceeds of sale in his pocket, refuse to pay any part of the purchase price. As has been already stated, the agent of the defendant, the captain of the vessel, might have refused to accept the cargo because the bananas had been cut before arrival of steamer; but, having accepted them, the defendant became liable for purchase price, subject to deduction for damage sustained by reason of violation of contract. These damages have been awarded the defendant e,by the jury. Their amount was to be determined by them, as there was some question as to whether the whole damage was caused by the fact of cutting before arrival. The judgment and order appealed from should be affirmed, with costs. All concur.  