
    ELLIS C. STOKES and CHARLES STOKES, Plaintiffs and Appellants, v. CARL L. RECKNAGEL, and Others, Defendants and Respondents.
    I. SALES TO ARRIVE.
    1. Contract that goods should have been shipped fob vendors’ ACCOUNT.
    
      a. What not a breach of.
    
    1. Borrowing funds, or credits at the place of shipment, to enable the vendor to pay for them, is not; the vendor having-the bills of lading and invoices, and the goods being entered in his name.
    H. CONTRACT.
    1. Construction of.
    
      a. Parties by their words and acts, may, in cases of doubt, put a construction on the contract by which they will be bound.
    3. Entire contract.
    
      a. Acts or consent of parties may make it divisible.
    3. Conditions precedent.
    
      a. May be waived by the parties, or excused on proper grounds.
    HI. TITLE TO PROPERTY.
    1. What sufficient to pass.
    
    
      a. The delivery or assignment of store receipts given by a warehouseman with invoice and weigher’s return is sufficient.
    IV. TENDER. —REFUSAL TO ACCEPT.—WHAT CAN NOT BE. URGED TO JUSTIFY.
    1. When a party places his refusal on certain specific objections, he can not, after action commenced, raise other objections, trifling is their character, and which could easily have been remedied at the time.
    V. APPLICATION OF ABOVE PRINCIPLES.
    Defendants contracted to purchase of plaintiffs the balance of jute-butts shipped for their account per ships Nagpore and Jaypore, from Calcutta, not exceeding two thousand bales, and less damaged, bales, out of a lot of four thousand bales, to be landed alongside ship in New York or Brooklyn. Duty paid. Buyer to have-benefit of any reduction of duty, and to pay any increase of same-Goods to be of good merchantable quality.
    
      1. The butts having been imported from Calcutta, for account of plaintiffs, and they being the owners, and entitled to the control and disposition of the same,
    HELD,
    that the fact that some of the bales had on them the mark W. and that F. & S. had advanced in Calcutta funds or credits to enable plaintiffs to pay for them, did not affect the principal fact that they were imported for plaintiff’s account.
    2. The Jaypore having arrived before the Nagpore, defendants were notified of the fact, and received an order in writing for the delivery of the two thousand bales out of her, and no objection was made to such delivery.
    HELD,
    1. The parties had thus construed the contract as authorizing the delivery of the whole two thousand bales out of the Jaypore.
    2. If the contract was entire, so that the same could be' legally satisfied only out of the cargoes of both vessels, yet the parties by this act had made it divisible.
    8. The defendants directed the butts to be put in bond so as to obtain the advantage of a reduction in duties thereafter to' take effect.
    HELD,
    1. This was a waiver of delivery alongside.
    2. It was a waiver of actual payment of duties as a condition precedent to payment.
    4. The butts having been placed in bond, and the store receipts with an invoice with duties deducted, having been delivered; and passed over to defendants,
    HELD,
    that the property passed to the defendants, and was placed completely at their disposal, and was a sufficient tender and delivery.
    6. The invoice delivered to defendants showed a deduction for an estimated amount of duties, and stated the number of butts incorrectly, but the weigher’s returns which stated the amount correctly, accompanied the invoice. The defendants placed their refusal to accept on other grounds, but made no objection to the sufficiency of the tender on these grounds, until after the action was commenced
    held,
    that they could not be allowed to raise these objections.
    
      Before Freedmah and Yah Yorst, JJ.
    
      Decided December 9, 1874.
    Appeal from judgment entered on a dismissal of complaint, on trial before the court and jury.
    About February 1, 1873, the plaintiffs, who were -merchants residing in Philadelphia, and importers of jute butts, from Calcutta, employed Cabot, Bowles & Co., merchandise brokers, of the city of New York, to sell jute butts for them out of shipments to arrive for their account, on two vessels, the Jaypore and the Nagpore.
    On February 10, 1872, a contract was made by the brokers with the defendants. The contract was in these words:
    “No. 1705.
    “New York, February 10, 1872.
    “ Sold to Messrs. Recknagel & Co., of New York, for account of Messrs. E. & C. Stokes, of Philadelphia, balance of the jute butts shipped for their account, per ships Nagpore and Jaypore, from Calcutta, not exceeding two thousand bales, and less the damaged bales ■out of the lot of four thousand. Buyers’ option to take damaged at an agreed upon allowance. This "sale is intended to cover the lot purchased for shipment by those vessels, as advised by cable. Terms three and seven-sixteenths cents per pound, actual gross weight, as landed alongside ship in New York or Brooklyn. ■Grold. Cash in thirty days from average delivery from -each vessel. Duty paid. No arrival, no sale.
    “ S’d Cabot, Bowles & Co.,
    [Revenue Stamp.] “ Merchandise Brokers,
    “121 and .123 Front-st.
    “No responsibility taken unless by special agreement.
    
      “ Buyer to have benefit of any reduction of duty and to pay any increase of same. Duty clause retained.
    “ S’d, Cabot, Bowles & Co.,
    
    “ 121 Front St., New York. 15 Kilby St., Boston.
    “ To be of good merchantable quality.
    “ (Accepted) Recknagel & Co.”
    The bought and sale notes were duly exchanged between the parties.
    Before making the contract of sale with the defendants, the brokers had already sold out of the cargoes “ to arrive,” the following quantities. On February 5, 1372, one thousand bales out of theNagpore, or “other vessel or vessels.” On February 8, five hundred bales out of the Nagpore. On February 10, five hundred bales out of the Nagpore or Jaypore, either or both.
    The Jaypore arrived in the port of New York on June 19. She had on board, shipped on the plaintiffs’ account, four thousand three hundred and seventy-two bales, an amount more than sufficient to satisfy the sales made to others in any event deliverable out of her cargo, before the contract with defendants was made, as well as the contract with the defendants.
    The Nagpore, with two thousand bales, shipped on plaintiffs’ account, did not arrive until June 26.
    On the day of the arrival of the Jaypore, the brokers called on the defendants, and advised them of the arrival of that vessel, and asked whether they wished the butts put in bond. They replied they did.
    
    The brokers then added that they supposed all the other parties who had butts on the vessel, would have them put in bond, and they would put the whole in bond. The testimony of one of the brokers was to the effect, that the defendants wished the butts put in bond to obtain the advantage of the reduction of duties on such articles which was to take effect under an act of congress, on the August 1, 1872. He testified “a bill had been passed by congress taking off the duty from jute butts, to go into effect, I think, August, 1,
    “ Q. He wished them put in bond and avail himself of that ?
    “A. Yes, sir ; I informed him of the arrival of the vessel.
    “ Q. What then took place ?
    “ A. The new orders were given on the ship for the-goods.”
    On June 21, the brokers sent to the defendants an. order as follows:
    “New York, June 21, 1872.
    “ Please deliver to Messrs. Recknagel & Co., or order,, two thousand bales of jute butts, marked, viz., 1,000 bales, S. C. &Co., 1,000 bales S. Ex. ship Jaypore, after-being verified by Messrs. Yoorhees & Hegeman.
    “ And oblige,
    “ E. & C. Stokes,
    “by Cabot, Bowles & Co.,
    6 ‘ Agents.
    
    “ To clerk of ship Jaypore, Erie Basin.”
    And on the 22nd, a new order was delivered to-the defendants, as follows:
    “New York, June 22, 1872.
    “Please deliver to Messrs. Recknagel & Co.’s order two thousand bales jute butts, marked, viz.: 1,500' 6. C. &. Co., 500 bales, W. Ex. ship Jaypore, after-being verified by Messrs. Yoorhees & Hegeman,
    “ And oblige,
    “E. & C. Stokes,
    “ by Cabot, Bowles & Co., '■‘•Agents.
    
    “To clerk ship Jaypore, Erie Basin.”
    The evidence being, that the last order was sent to-take the place of the first, and was necessitated through a misdescription of marks in the first order. The difference appears in the order.
    
      The order of the 32nd was delivered to the defendants by the brokers, in person, who informed the defendants of the error made in the first order in respect to numbers. The defendants inquired whether the bales were of the same weight. The brokers replying that they could not tell as they had not the invoices, the defendants answered that all they cared about was the question of weight. The defendants were informed verbally, as well as by the orders themselves, that these two thousand bales were out of the Jaypore, to which they made no objection.
    The butts were put in bond by the brokers, in the stores of Woodruff & Robinson, Commercial Wharf, Atlantic Dock, and receipts were issued for the same, as follows:
    “No. 5459.
    “Brooklyn, June 26,1872.
    “ Received in store No. 5, Erie Basin, from Messrs. Recknagel & Co., Ex. Jaypore, fifteen hundred bales jute butts on storage, subject to the order of themselves, on payment of the charges accrued thereon, and in accordance with the marginal note hereto annexed.
    “ Woodruff & Robinson,
    “ Offices at the stores and
    “No. 14 Coenties-slip, New York.”
    “1,500 bales of which, some with ropes broken. Rate, 5 cents per bale, storage per month, and 6 cents per bale, labor.
    ‘ ‘ The annexed receipt may be transferred by indorsement (unless the words “not negotiable” shall be written or stamped on the face thereof), and any person to whom the same may be so transferred, will be deemed and taken to be the owner of the property therein specified, and no property can be delivered except on the surrender and cancellation thereof. Tide §§ 6 and 8, of the act to prevent, &c. Not negotiable.”
    A similar receipt was taken from Woodruff & 
      Robinson, for five hundred bales from the same vessel, as received from Messrs. Recknagel & Co., on June, 26.
    The invoice and weigher’s returns of the butts were-sent to defendants on J uly 8.
    The invoice showed the weight of the bales to be eight hundred and ten thousand five hundred and sixteen pounds, and the price of the same in gold to be at
    3-fg....................................... $27,861 48-
    
      “Less estimated duty”............ 2,148 00»
    $25,713 48
    After the butts had been placed in bond, and the orders, invoices and returns of weight delivered to the-defendants, the defendants first interposed any objection. They first claimed that if there were any-damaged bales on board the Jaypore, they were entitled to have them discounted from the amount. This was conceded, but no damaged bales were found in the-cargo.
    Afterwards the defendants claimed that if there were-any damaged butts on the ISTagpore, they were entitled to an allowance for those also. .
    This claim was conceded, but on the discharge of that vessel no damaged bales were found, and the bill was presented to the defendants the second time. In an interview about July 1, but after the goods had oeen entered and placed in bond, defendants stated to the brokers that “on the whole, they did not-know that they were bound to take all the goods ; that they had been informed by some one else that a portion of the goods were entered by another party,, and did not belong to E. & C. Stokes.”
    The evidence showed that the butts were merchantable, and of a superior quality.
    Also, that they were imported for the account of the-plaintiffs, and were under their sole control. They had the bills of lading and invoices. Findlay & Schlichterhad furnished credits in Calcutta to enable plaintiffs to pay for a portion of the butts. Findlay & Schlichter and plaintiffs often exchanged credits, and aided each other in the importation of merchandise. There is no evidence that any of the butts for the price of which this action is brought were “entered” in the names of any person other than than .the plaintiffs.
    On July 18, the brokers wrote the defendants a letter in these words :
    “Hew York, July 18, 1872.
    “ Messrs. Recknagel & Co.
    “ Dear Sirs.—We have at your request conceded the right you had under your contract to the advantage of discounting the damaged bales, if there were any on “the invoice of 4,000 bales,” from your purchase of two thousand by vessel or vessels. The whole quantity shipped has been discharged in good order. Hot a damaged bale in either ship, and we inclose the bills, weigher’s returns and storage receipts. Will you kindly verify this statement of facts, and relieve us of the custody of these papers \ We have complied, we think, with all the conditions you have contended for.
    “Very respectfully,
    “ Cabot, Bowles & Co.,
    “Agents for E. & C. Stokes.”
    See said letter, 61. To this the defendants made the following reply:
    “ Memorandum.”
    “ From Recknagel & Co., Office 46 Cedar-st.
    “Hew York, July 18, 1872.
    “Dear Sirs.—We return the papers relating to the jute butts, which we decline to accept for reasons stated before. We are willing to take 879 bales you had on board the Jaypore, over and above the 2,000 bales first sold. “ Yours respectfully,
    “R. & Co.
    “Messrs. Cabot, Bowles & Co.”
    
      About July 23 or 24, defendants, in a conversation with the brokers, said that if there was any legal way to get out of the contract, they meant to take advantage of it, as there was a good deal of money to be lost by it. They afterwards stated to the plaintiff "that they thought there was a doubt whether they were bound legally .to take the butts, and they did not mean to take them if they could help it.
    The action is brought to recover the contract price of the two thousand bales of butts. The plaintiffs, by their complaint, allege a due and sufficient tender of the .goods, and a fulfillment on their part of all the conditions of the sale, and a refusal by the defendants to take and pay for the butts or any part thereof.
    The answer of the defendants denies a sufficient tender by the plaintiffs, and other allegations in the complaint, except the contract of sale which they admit.
    On the trial before one of the judges of this court and a jury, the above facts substantially appeared in evidence.
    At the close of the plaintiffs’ testimony, the counsel ior the defendants moved, to dismiss the complaint “ on the ground that the parties plaintiffs have not put themselves in such a position as that they can enforce the contract against the defendants.”
    Plaintiffs’ counsel urged that the contract was on its face distributive, because it contemplated the delivery of butts from two vessels, also, that there was a waiver of the condition of the contract as to tender.
    The court held “ that the contract was entire and indivisible, and granted the motion to dismiss the complaint.
    The plaintiffs’ counsel excepted, and from the judgment entered upon the dismissal of the complaint, this appeal is taken.
    
      Steele & Boyd, and Dennis McMahon, of counsel for appellants,
    among other things, urged;—I. Under the circumstances surrounding the putting the goods in bonded warehouses, and the tender of the warehouse receipts and weigher’s return and bill of items, together with order on the ship for the goods, the delivery was complete (Hayden v. De Mets, 34 Sup'r Ct. 344 ; Glen v. Whitaker, 51 Barb. 451 ; Stanton v. Small, 3 Sandf. 230 ; Story on Sales, 311; Wilkes v. Ferris, 5 Johns. 335; Western T. Co. v. Marshall, 4 Abb. Ct. App. Dec. ; Hawkins v. Baker, 46 N. Y. 666; Dunham v. Mann, 4 Selden, 508; Bates v. Conklin, 10 Wend. 389 ; Dunham v. Pettee, 1 Daly, 112; Hankins v. Baker, 46 N. Y. 666; People v. Haynes, 14 Wend. 546).
    II. Ho objection to the tender was made by defendants to the plaintiffs on the ground that the goods themselves had not been actually tendered, but the objections to receive the goods were put on other grounds. Ho objection that the duty was not paid, was made by the defense; on the contrary, the plaintiffs showed that the. defense requested the goods put in bond, so they might avail themselves of the taking off of the duty which was expected on August 1, then proximo. If the objection had been made then, the plaintiffs would have paid the duty preliminarily, and made the tender.
    HI. The gounds on which the court granted the dismissal were untenable, (a) The contract on its face is ..distributive, because it contemplates deliveries from .two vessels. These deliveries by the contract are contemplated to be distinct.
    
    IV. The defendants have waived strict performance -of a delivery out of both vessels, by their acts and declarations, and the delivery of the two thousand bales -out of the Jaypore is good. “ Ho consideration is necessary to give validity to a waiver” (Shelden v. Horton, 43 N. Y. 93). Parties have a perfect right, orally or by acts, to alter or to waive any of the terms of an original written agreement (Van Buskirk v. Stow, 42 Barb. 10 ; Moses v. Bierling, 31 N. Y. 462). If the refusal to pay the loss is put upon grounds other than the insufficiency of the notice or proofs furnished, the insurers will be held to have waived objections of that character (9 How. Pr. 390; 16 Wend. 385; 3 Comst. 122 ; 6 Cush. 342, 40 ; 25 Ill. 466). The defendants have done such acts, and they are: (1) The acceptance and retention of the order of delivery of two thousand bales of these butts. The remark, also, that all they cared about was the weight of the bales. (2) The order by Mr. Recknagel to Cabot to put the two thousand bales, in bonded warehouses, which was done in defendants’ name, and the receipts given to him (Bradly v. Wheeler, 44 N. Y. 495; Dunham v. Pettee, 1 Daly, 112). (3), The defendant Recknagel, when the invoice was presented to him, put at first his objection on the ground, that the damaged bales on the Jaypore were not deducted. Then, secondly, that the damaged bales on the ifagpore were not deducted. Thep, when none were shown, he put his objection on the ground that Mr. Stokes did not own the bales. It was not until July 18, that he put his objections on the ground that the two thousand bales were not the balance on the Nagpore as well as Jaypore. In the meantime, the plaintiffs had sold and delivered all on the Nagpore. (4) The letter of defendants refusing to accept the jute butts for the above three reasons, and saying that they were willing to take eight hundred and seventy-nine bales on the Jaypore, over and above the two thousand already delivered. "
    V. A request was made by the plaintiffs’ counsel to have the court allow the case to go to the jury on the question whether the defendants did not waive strict performance of the contract; (1) as to the question of ■delivery out of one vessel, instead of out of both vessels ; (2) whether they did not do so upon the question of payment of duty ; also on the question whether the plaintiffs were not entitled to recover for eight hundred and seventy-nine bales mentioned in the defendants’ letter of July 19; also that the case be generally submitted to the jury; should have been allowed, and the exception to the court’s refusal to do so is good (Kimberley v. Patchin, 19 N. Y. 330). As to whether there has been an acceptance of goods sold, is always a question of fact (Corning v. Colt, 5 Wend. 253; Vanderbilt v. Eagle Iron Works, 25 Id. 665; Gray v. Davis, 10 N. Y. 285).
    
      Charles M. Da Costa, and T. P. Chapman, of counsel for respondents,
    among other things, urged I. The contract was entire and indivisible, because, (<z) It was not a sale, but an executory contract of sale; and it is uniformly held that such contracts are entire (Reimers v. Ridner, 2 Robt. 11; Matthews v. Hobby, 48 Barb. 167; Kein v. Tupper, 52 N. Y. 550), on appeal from this court (33 N. Y. Sup'r Ct. 465). Until, therefore, both vessels had arrived and discharged, it was impossible to determine how many of the said lot of four thousand bales might be damaged, and, therefore, how many Becknagel & Co., would be obliged to accept as constituting the balance of the lot, of four thousand, after the two thousand previously sold had been delivered.
    II. The contract is, strictissimi juris; and, in such a contract, the vendor must perform all its conditions upon his part, if he would compel performance by the vendee (Cases supra; Nelson v. O. P. Elevating Co., Ct. of App. 10 Albany Law Journal, 153 ; Cases supra, especially 52 N. Y. 550, and 10 Alb. L. J. 153; Crane v. Knubel, 34 N. Y. Sup’r Ct. 443, 445 ; Sherman v. Mayor of New York, 1 N. Y. 316; Pike v. Butler, 4 Id. 362; Norton v. Woodruff, 2 Id. 153; Oakley v. Morton, 11 Id. 25; Smith v. 
      Meyers, Law R. 5 Q. B. 420, 433 ; affirmed on appeal by the Exchequer Chamber, 7 Q. B. 139, 140, et. seq).
    
    III. Plaintiffs did not comply with all such conditions precedent. (1) Until both vessels had arrived and fully discharged—that is, until July 9—no valid tender could be made, because—(a) “The balance of the 4,000 bales, less the damaged bales,” could not be ascertained ; that is, after the two thousand bales which had been previously sold had been delivered, the number of perfect bales remaining, and which alone Becknagel & Co., were obliged to accept, could not until then be determined. (5) The contract provides for the delivery and acceptance only on the arrival and discharge of both vessels. (2) The delivery of the storage receipts, weigher’s returns, and the invoice or bill was not a sufficient tender, because, (a) The duty had not been paid. (6) The goods had been in store since June 26, and the storage charges had not been paid.
    IV. The defendants did not waive a strict performance of these conditions precedent. (1) The first time, so far as it appears in evidence, that the defendants discovered that the Nagpore had not yet fully discharged, the objection was instantly raised that the contract was entire, and that there could be no delivery until there had been an opportunity to determine the exact number of bales which the defendants must accept, that is, until the complete discharge of both vessels. (2) The plaintiffs contend, however, that on the arrival of the Jaypore, the defendants ordered the goods to be put in bond. The goods were put in bond in accordance with those instructions, and the bill or invoice, as rendered, deducted the amount of the duty. And the objection that the duty is unpaid, can not be interposed, since such was the result of the defendants’ instructions, (a) The defendants having specified certain objections to the earlier attempted tenders, waived and were debarred from raising all other objections, however valid, to subsequent offers to deliver. To the first ground it is a sufficient answer that the fact is not as alleged. The duty, as estimated in the bill, and deducted, is incorrect. The number of tons is greater, by more than three, than therein expressed ; and the amount to be paid by the defendants larger, by over twenty dollars, than the plaintiffs had a right to demand. The second ground is untrue in fact, because the objections specified were not all special. Before July 1, the defendants interposed the general objection that they “did not think they were bound to take all the goods tendered.” It is unsound as a legal proposition (Page v. McDonnell, 66 How. Pr. 299 ; Nelson v. O. P. Elevating Co., 10 Alb. L. J. 153). All the cases which may be relied upon as seeming to hold the reverse of this proposition establish this point merely, that if, when a tender is made, an objection is interposed which is invalid, and no valid objection is stated at the time, or if the vendee declines to fulfill his contract for some other reason without objecting to the tender, the tender is sufficient (Hayden v. De Mets, 53 N. Y. 426). If, then, the mere failure to specify every existing objection on the occasions of the former tenders has not estopped the defendants from relying upon them now, the plaintiffs have not shown a waiver of the payment of the warehouse charges. If they say that the defendants ordered the goods in bond, and therefore, undertook to pay the expenses of bonding them, we answer, they had no right to impose upon the defendants the storage expenses from June 26, the day they were bonded, when they could not have been delivered, pursuant to the contract, until July 9, the day the Nagpore finished discharging. If the plaintiffs say that the defendants ordered the goods in bond, and, therefore, authorized the amount of duty to be deducted from the bill, instead of being paid, we answer, if that be so, authority was given them to deduct the exact and full amount of duty only, and that the plaintiffs did not comply with that authority, since they failed to deduct the amount of duty by more than twenty dollars.
   By the Court.—Vah Vorst, J.

The contract in this case was executory, and, under the evidence, the question arises whether it became completely executed on the part of the vendors, so as to enable them to maintain an action for the price of the goods agreed to be sold and delivered to the defendants.

What was sold by the contract of February 10,1872, was the balance of the jute butts shipped for the account of the plaintiffs, the vendors, per ships Nagpore and Jaypore, from Calcutta, not exceeding two thousand bales, and less the damaged bales out of the lot of four thousand. The sale was intended to cover the lot purchased for shipment by these vessels, as advised by cable. The terms were three and seven-sixteenth cents per pound actual gross weight, as landed alongside ship in New York or Brooklyn, gold; cash in thirty days from average delivery from each vessel; duty paid. The buyer was to have the benefit of'any reduction of duty, and to pay any increase of same. The merchandise was to be of good merchantable quality. Under this contract the vendees could not have been obliged to accept butts shipped for the account of others than the plaintiffs (Hayward v. Scongall, 2 Camp. 56; Yernede v. Weber, 1 Hurl. & N. 311). Nor were the vendees obliged to take, in any event, more than two thousand bales, and were entitled to have deducted from that amount the damaged bales out of the entire lot shipped for plaintiffs’ account on the two vessels. The entire lot shipped was believed to be four thousand bales on the two vesséls. Nor could the plaintiffs well insist, that the defendants should receive any butts under the contract, other than those shipped on the vessels named—and those of a good merchantable quality, upon which the duty was paid. These are severally substantial parts of the contract, and as far as they act upon and obligate the plaintiffs, are conditions precedent, to be performed by them in addition to the making of a proper delivery or tender, before they could successfully maintain an action for the price of the merchandise in question. In this view the contract is entire. The principles out of which the above statements arise are elementary.

All the conditions precedent to be performed by the plaintiffs should be met and observed by them, before they could enforce by action the contract against, the defendants (Smith v. Brady, 17 N. Y. 173 ; Guidet v. Mayor of New York, 36 Sup'r Ct. [4 J. & S.] 557).

But the performance of conditions precedent may be excused on proper grounds, or may be waived, if there be in other respects a faithful observance of the contract by the contracting party (Moses v. Bierling, 31 N. Y. 464; Johnson v Oppenheimer, 55 N. Y. 291). The butts for the price of which this action is brought, as the evidence discloses, were imported from Calcutta for the account of the plaintiffs, who were the owners, and entitled to the control and disposal of the same.

The fact that some of the bales had upon them the mark “ W,” and that Finlay & Schlicter had advanced, in Calcutta, funds or credits to enable plaintiffs to pay' for them, does not affect the principal fact, that they were imported for plaintiffs’ account.

These butts were shipped upon, and were taken for delivery from the Jaypore, one of the vessels named in the contract, and were a portion of those purchased for shipment, and shipped on the two vessels for plaintiffs’ account.

We do not. think it incumbent, under the evidence, to construe the contract, so as to determine whether or not the defendants could have properly insisted that no delivery or 'tender could be made under the contract until both vessels had arrived, and the damaged bales,. if any, should have been separated from the entire lot of both shipments. But it is to be observed that the-cargo of the Nagpore consisted of two thousand bales, only, and that the two thousand bales previously sold to. other parties, might, by the terms of those sales,' all be' taken .from the cargo of that vessel, which would exhaust it completely. We are, however, of opinion that the parties have themselves, by their words and acts, put a construction upon the contract in question in this, regard, and to the effect that the contract with the defendants might be satisfied out of the cargo of the Jay-pore exclusively.

The Jay pore arrived in New York on June 19. TheNagpore did not arrive until the 26th of .the same month.

On the day of the arrival of the Jay pore, the defendants were advised of the fact by the brokers who had effected the sale.

She had on board upwards of four thousand sound bales. In any event a quantity more than sufficient to> satisfy the number called for by the defendants’ contract.

When advised of the arrival of this vessel, defendants stated that they wished their bales put in bond.

On June 22, orders in writing were given to the defendants for the delivery to them of two thousand bales out of the Jay pore. In addition to the order in writing that these two thousand bales were to come from the Jay pore, defendants were verbally informed of the same fact, and no objection was made to a delivery of the entire quantity from that vessel.

If the contract was entire, so that the same could be legally satisfied only out of the cargoes of both vessels, although one contained a sufficient number to answer completely its demands, yet the parties could make it divisible by their consent or acts.

Where a. contract for the delivery of two boatloads of wheat was entire in form, it was made divisible in its execution by the concurrence of the parties (Winne v. McDonald, 39 N. Y. 333; Tipton v. Feitner, 20 Id. 423).

We are of opinion that the evidence is sufficient to-establish the concurrence of the parties after the Jay-pore arrived, that the two thousand bales called for by the contract should be taken from her cargo exclusively.

The evidence also shows that those bales were-merchantable, and of a superior quality, and that the examination made to ascertain the quality, was sufficient to establish these facts.

The above considerations all bear upon the question &s to whether there has been a sufficient delivery or tender of the merchandise under the contract, to which we will more specifically advert.

There was no specific place in the city of New York, designated for the delivery of the bales, unless it be by the words “ three and seven-sixteenths cents per pound,, actual gross weight, as landed alongside in New York or Brooklyn.”

But even though a specific place “ alongside" was designated, the parties could agree that the merchandise might be delivered and received at another place. The order of J une 22 would have enabled the defendants to have taken the merchandise from alongside the ship, but not without the payment of the duties after-the goods had been weighed.

Such order, without an agreement in respect to-duties, other than the terms of the written contract, would not constitute a good delivery.

But the plaintiffs do not rely on this order alone.

The evidence is undisputed that the defendants said to the brokers, when advised of the arrival of the Jay-pore, that they wished their butts put in bond. They wished such disposition made in order to obtain the-advantage of the reduction of duties, as provided for in the contract, which was to take effect under the act of congress, on August 1.

This was a direction from the defendants to the brokers to put the two thousand bales from the Jaypore in bond for them, and was also a waiver of the actual payment of the duties by the plaintiffs, as a condition precedent to their right to demand the payment for the merchandise, after the same should have been placed in bond, in pursuance of such directions. For the sole ■object of putting the bales in bond was to give the defendants the advantage of the reduction of duties, which could be effectually realized only by postponing their payment until after August 1.

In the meantime, by deducting from the price of the merchandise the duties existing at the time of the placing the same in bond, the plaintiffs gave the defendants the benefit of such reduction, as after August 1, if not removed from bond before, the defendants would be obliged to pay duties only according to the reduced scale. The weigher’s returns informed defendants of the weight of the bales.

The store receipts passed the property to the defendants. These documents, with an invoice or bill with duties deducted, were delivered to the defendants, and the property was placed completely at their disposal. This, we think, under the evidence above adverted to, was a sufficient tender and delivery (Hayden v. De Mets, 34 Super. Ct. 344; S. C., 53 N. Y. 426; Story on Sales, § 311; Benjamin on Sales, 558; Dunham v. Pettee, 4 Seld. 508).

The evidence shows that the defendants at no time objected to the delivery of the goods in bond. By their letter of July 18, in which they return the papers sent to them by the brokers, they say that they decline to accept for the “reasons stated before.” But express a willingness to take eight hundred and seventy-nine bales out of the lot from the Jaypore.

Now, the only objection which had been at any time before made by the defendants, and those were made after the merchandise had been placed in bond by their directions, were,—1. That any damaged bales on the Jay-pore should be deducted from the two thousand bales. This was yielded, and the objection was removed. 3. That any damaged bales on the Nagpore should be deducted, and this point was also conceded. But as there were no damaged bales, there were no deductions to be made. Their last objection grew out of information they professed to have received, that a portion of the two thousand bales from the Jaypore had been entered by another party and did not belong to the plaintiffs. It was on the basis of this information, without ■doubt, and on the assumption that of the entire shipment on the Jaypore of four thousand three hundred and seventy-two bales, one thousand four hundred and ninety-three had been imported by Findley & Schlicter, or on their account, and that the remaining number, eight hundred and seventy-nine bales only, bad been imported on plaintiffs’ account that the offer of the defendants to take said last mentioned number was made.

Now, the evidence does not show that any portion of the two thousand bales had been entered at the Custom House by Findley & Schlicter, but it does show that the whole number of bales in question, and for the recovery of the price of which this action is brought, were shipped on account of the plaintiffs, and were owned by them.

What the defendants intended by the statement made by them to the plaintiffs as late as July 33, that they thought there was a doubt whether they were bound legally to take the bales, is not clear, unless they referred to the assumption that all these bales had not been Imported for plaintiffs’ account, which was incorrect.

It was too late to object that the two thousand bales, "had. been taken from the cargo of the Jaypore exclusively. For, in making such appropriation, the plaintiffs acted with the defendants’ knowledge and concurrence, and have delivered to others after such appropriation, the butts from the Nagpore. It was too late to obj ect that the merchandise had been placed in bond, for in doing, so, the plaintiffs had but followed the directions given, by the defendants, and by placing the butts in bond had appropriated them to the execution of the contract on their part, and had placed them under the exclusive control of the defendants, and apparently beyond their own power to recall, or otherwise dispose of them.. As far as the duties were concerned their “estimated” amount was deducted from the price of the merchandise, as appears by the bill or invoice rendered to the defendants. In respect to the charges for storage to-which the merchandise was subject, the plaintiffs are not responsible for the charges, as they grew out of the-putting the merchandise in bond, and commenced only when the same was so disposed of.

If put in bond by the defendants’ orders, they, and. not the plaintiffs, are liable for these charges.

For all that the case discloses, the objection that the-amount of duties proposed to be deducted was twenty dollars less than the actual duty to which they were= subject, is now first taken.

It, certainly, was not taken in the defendants’ letter, of July 18, returning the papers. The reasons which influenced the defendants in declining to accept the butts, as they alleged in their letter, had been “ stated before.” No such reason had been assigned at. any time. ,

These objections related to other matters, to which allusion has already been made.

The amount deducted from the price of the butts for duties in the bill rendered,was two thousand one hundred and. forty-eight dollars. It was statedin the bill that this was the “ estimated duty ” on three hundred and fifty-eight tons. And in the letter of the brokers inclosing this bill, the defendants were asked to “ verify the statements.” The error, if any, as we understood it on the argument, was that the bill rendered stated the number of pounds’ weight incorrectly, there being a mistake of some ten pounds’ weight in the addition or extension. But as the weigher’s returns, accompanying the papers, stated the amount correctly, the mistake was apparent. How the other error, if any, making up this amount of "twenty dollars, arose, is not pointed out, nor is it stated distinctly in what it consists. But it is immaterial.

The objections to the tender having been placed on other grounds, the defendants should not now be .allowed to set up to defeat the plaintiffs’ action, if otherwise meritorious, an undisclosed objection of this nature, involving an amount, trifling, compared with the sum in controversy, and which could have been instantly corrected by the papers furnished to the defendants, which contained accurate information in •detail and which they were asked “to verify.”

In Hayden v. De Mets (supra), there was a slight deficiency in the quantity of copper tendered, but the tender was upheld on the ground that no objection had been made on account of the deficiency, and in that •case there was an offer only to pay storage and charges.

The ease seems to indicate a desire on the plaintiffs’ part fairly to fulfill the contract according to its terms, and to obviate the defendants’ objections, which, as made, were confined to two subjects, damaged butts from the two vessels, and a supposed importation of a portion of the merchandise for the account of others than the plaintiffs. The objections on examination turn out to be groundless.

The evidence also shows that the defendants had •come to the conclusion after the goods were bonded, that the contract if carried out, would entail upon them loss, and that they did not mean to take the butts if they could help it. They so informed the plaintiffs in their last interview with them.

The defendants have a clear right to insist upon every proper objection to the manner in which the plaintiffs have performed the contract on their part, and to the sufficiency of the tender or delivery.

But the objections, to be available, should rest on valid legal grounds. The defense is technical.

We are of opinion that the evidence makes out a. case upon which the plaintiffs were at least entitled, when they rested, to go to the jury. That the question whether or not the defendants had waived compliance-by plaintiffs with the provision of the contract, requiring the payment of the duty, should have been submitted to the jury as a question of fact, and that the-direction of the judge, dismissing the complaint, was-erroneous.

In this view it is not necessary to examine and pass-upon the various exceptions taken to the exclusion off evidence offered by plaintiffs.

We are of opinion, however, that the exceptions to the exclusion of the question, as to whether or not “at the time the defendants directed the brokers to put the goods in bond, anything was said about duty,” was. well taken. We think, also, that the papers and documents received by the judge as evidence, but limited by him as to their effect, are evidence upon the subject off tender and its sufficiency, and their contents, so far as. they go, available for that purpose (Dustan v. McAndrew, 10 Bosw. 130).

The judgment should be reversed, and a new trial; ordered, with costs to the appellants to abide the event..

Fkeedmak, J., concurred.  