
    John F. Schwann et al., Respondents, v. George W. Clark, Appellant.
    (City Court of New York—General Term,
    February, 1894.)
    The defense of the Statute of Frauds is not available Unless specifically pleaded.
    A provision in a contract of sale requiring prompt shipment by steamer in a certain month places the vendors only under the1 duty to ship as early in the month as the reasonableness of the trade and shipping facilities will permit, and whether they did so in a particular case is for the jury to determine.
    
      In such a case proof that the goods were placed, on the twenty-ninth of the month, on a vessel which sailed two days later is sufficient to justify a finding in favor of the vendors on that question.
    Appeal from judgment in favor of plaintiffs, entered upon a verdict.
    
      Parsons, Shepard (& Ogden, for appellant.
    
      Hmriehs dk Rudolph, for respondents.
   Fitzsimons, J.

The answer does not specifically set up as a defense the Statute of Frauds: therefore the benefits of that statute cannot avail defendant in this action. Crane v. Powell, 25 N. Y. Supp. 911.

The contract of sale required plaintiffs to ship promptly by steamer in October. The evidence shows that the lead sold was on October twenty-ninth placed on board a vessel destined to sail for New York, and which did sail November first, two days subsequent. In my judgment this was a sufficient'compliance with the terms of said contract. The plaintiffs were only under the duty to ship as early in October as the reasonableness of the trade and shipping facilities permitted. Whether or not they did so in this case was a question of fact for the jury to determine, which they did, deciding it in plaintiff’s favor, and their finding is conclusive. The testimony amply justifies it, and as the vessel sailed two days after the shipment it is quite evident that the plaintiffs selected a vessel that sailed- within a reasonable time thereafter, thus doing all that the-law required of them. Ledon v. Havemeyer, 121 N. Y. 185.

The notice of the resale of the lead was more than reasonable, as the testimony shows.

We have examined the exceptions taken, and find nothing in them that would justify a reversal of the judgment.

The judgment should be affirmed, with costs.

Ehrlich, Oh. J., and Yah Wyck, J., concur.

Judgment affirmed, with costs.  