
    REIMERS a. RIDNER.
    
      New York Superior Court;
    
      General Term, January, 1864.
    Sale of Chattels.—Quantity.—Goods at Sea.—Construction of Contract.
    Under a contract for the purchase of goods, where the right of property is not passed by the contract, the buyer is not bound to accept the articles when tendered, unless they correspond in quantity with what was bargained' for.
    The purchaser of goods at sea, of the quantity of which he cannot be presumed to be aware, is not hound to accept part of the quantity bought, any more than if the goods were in a distant warehouse.
    Where, under a contract as follows, “ Sold to B. 733 bags saltpetre to arrive on hoard ship A.,” the seller tendered 393 bags, about half the saltpetre on board having been destroyed by the sea, it appearing, however, that the ship A. arrived with 786 bags on board,—Sdd, that the purchaser was not bound to receive the quantity tendered.
    Exceptions heard, at the general term in the first instance.
    This action was brought by Theodore Eeimers and Gotlieb Schmidt against John P. Eidner, Edward Thiel and Hugo Wachsehlager, to recover $4235.36 damages for defendant's’ failure to accept and pay for three hundred and ninety-three bags of saltpetre under the following contract:
    New York, September 25, 1855.
    Sold to Messrs. Eidner, Thiel & Co., for account of Messrs. Eeimers & 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 to Boston. Ho guarantee 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 main facts being undisputed, a verdict was ordered for the plaintiff, defendants’ exceptions to be heard at general term in the first instance. It appeared at the trial that an invoice of 1,467 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 of August, 1855, for account of the said W. S. Bullard, Esq., a broker in Boston “ sold to the Hazard Powder Company one-half of an invoice of saltpetre to arrive per ship Arabella from Calcutta, say about 783 bags more or less (inv., 1,468 bags), at 8 cents per pound, 6 months’ credit from delivery on the wharf. Ho guarantee as to quality or time of arrival.” It further appeared that on the 12th of September, 1855, a contract, of which the following is a copy, was duly made by a broker and confirmed by said Bullard:
    Boston, September 12, ’55.
    Sold on account W. S. Bullard, Esq., one-half of 1,464 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 such number in the invoice), to Messrs. Beimer & Schmidt, of Hew York.
    (Signed) E. H. Jackson, Broker.
    (Confirmed) W. S. Búllakd.
    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 were abandoned by the original importer (Bullard).
    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: it 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 Beimers & Schmidt (plaintiffs). A certificate of transfer, issued by the custom-house authorities, constituted 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 on 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 of December, 1855, and the 2d of January, 1856. The plaintiffs could not deliver the saltpetre they purchased from Mr. Bullard until the 7th of January, 1856.
    The plaintiffs, on the 12th of January, 1856, made - a formal tender, through their attorney at law, to the defendants, and they replied, “We cannot accept it (393 bags of saltpetre), as the contract calls for different things,” or words to that effect.
    
      Reuben W. Van Pelt, for the plaintiffs.
    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 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 cts. per Ib. as the plaintiffs could deliver. (Story on Sales, §§ 240-242; on Cont., § 16.) 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.) The plaintiffs are entitled to judgment on the verdict.
    
      James Esehwege, for the defendants.
    I. The complaint does not state facts sufficient to constitute a cause of action, and should be dismissed on that ground. 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. Neither party can recover, unless readiness and willingness to perform on his part, and tender, are alleged. (Dunham a. Pettee, 8 N. Y. (4 Seld.), 508; Lester a. Jewett, 11 N. Y. (1 Kern.), 453; 12 Barb., 502; Williams a. 
      Healey, 3 Den., 363; West a. Newton, 1 Duer, 277.) The contract is entire, and the defendants are not bound to receive a part of the whole quantity only. (Russell a. Nicoll, 3 Wend., 112; Davenport a. Wheeler, 7 Cow., 231; Champlin a. Rowley, 18 Wend., 187; Waddington a. Oliver, 5 Bos. & Pul., 61; Paige a. Ott, 5 Den., 406; 2 Pars, on Cont., 163, 170; Oakley a. Morton, 11 N. Y. (1 Kern.), 25.) 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 Pars, on Cont., 184; 6 T. R., 710; Moakley a. Riggs, 19 Johns., 69; Carpenter a. Stevens, 12 Wend., 589; West a. Newton, 1 Duer, 277; Beebe a. Johnson, 19 Wend., 500; Story on Sales, § 251; 2 Story on Cont., § 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 a. Scott, 28 Eng. Law & Eq. R., 404; cases cited, supra.) And evidence tending to establish a waiver on the part of the defendants does not cure this defect. (Baldwin a. Munn, 2 Wend., 399; Holmes a. Holmes, 9 N. Y. (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 a. Rider, 24 N. Y., 367; 2 Story on Cont., § 970, a; § 971.) Time becomes material in an agreement where delay diminishes the value of the thing contracted for. (Decamp a. Fear, 5 S. & R., 323.) 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: such 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. (Worsley a. Wood, 6 T. R, 720; 2 Story on Cont., 543.)
    HI. The learned judge erred in directing the jury to find a verdict for the plaintiffs, 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 a. Mattison, 15 Abbotts’ Pr., 402; S. C., 25 How. Pr., 161; Cobb a. Cornish, 16 N. Y., 602; Gilbert a. Beach, Ib., 606.)
   By the Court.—Moncriff, J.

This action is brQught 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 saltpetre, 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 Company, following the decision in Havemeyer a. 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 saltpetreand hence, in my view, differs most essentially from the agreement to deliver “ % 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, and 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 Company and the cases 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 j” 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 the vessel. With reference to the contract made with the plaintiffs, 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 .plaintiffs to accept 393 bags, being 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 % of the invoiced saltpetre then on board the ship Arabella.

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 thing bargained for and agreed to be bought; for no man can be compelled to take more than he agreed, to buy. . . . (Add. on Cont., 238.) It will not be pretended that in either Havemeyer a. Cunningham (supra), or by virtue of the contract of Bullard with the Hazard Powder Company, the importer or vendor was devested 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, and cases cited; Pars. Merc. L., 48.) The evidence fully establishes the fact in the present case, that the title to the goods remained in Mr. Bullard until the 7th of January, 1856; he could have assigned and transferred the title to the saltpetre on board 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 in Boston.

In confirmation of this view, Mr. Bullard abandons property to the underwriters, and receives value therefor from them, which property otherwise was owned by the plaintiffs, or by the defendants.

Again, the transaction between the parties on the 25th of 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, ánd 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.

The tender of a number less than 733 bags of saltpetre did not satisfy the requirement of the contract on the part of the plaintiffs, and the defendants were not bound to accept. Shields a. Pettie (4 N. Y. (4 Comst.), 122; 2 Sandf., 262) is in striking analogy with the agreement between these parties, and is decisive of the question involved.

I am of 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 the 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, J.

The sale in this case was of goods to arrive; it was, therefore, a mere executory contract, conditional on their arrival (Shields a. Pettie, 4 N. Y., (4 Comst.), 122; 2 Sandf., 262; Benedict a. Field, 16 N. Y, 595; 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 a. 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 a. 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 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 apply to such a one as this. Less than tire full amount contracted for may baffle all the purposes of the buyer. His right to insist on a complete performance is established by numerous authorities.

Besides, there was on board, on the arrival of the vessel, the full number of bags of saltpetre required to be delivered by the contract, although nearly one-half had been lessened in bulk by the dissolving of part of the contents by water. These were transferred to the underwriters by the plaintiffs or those under whom they claim by abandonment. There was no guarantee 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 a. 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 unmercharitable, as charged in the complaint, as the defendants would not be bound to accept them, the plaintiffs were 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.

New trial ordered. 
      
       Present, Moncriee, Robertson, and Moneli, JJ.
     