
    Joseph Steiner and David Steiner, Plaintiffs, v. James C. Fargo, as President of The Merchants’ Dispatch Transportation Company (a Joint Stock Association), Defendant.
    
      Common carriers — no damages recoverable for loss by .delay in the transportation of goods, rejected by the consignee because of their inferior quality.
    
    In an action brought to recover damages for the failure of the defendant to transport certain furs, within a reasonable time, to the consignees, it appeared that the sale of the furs was conditional upon the fact that the furs should equal the sample shown to one of the consignees; that the consignees found them to be very poor in quality and notified the vendors that they would be returned, and that the vendors then asked the vendees for a letter to the effect that the goods had been delayed and came too late for salé, whereupon the vendees wrote such a letter. •
    
      The plaintiffs were nonsuited.
    
      Held, that the nonsuit was proper;
    That the theory of the complaint that the plaintiffs lost the sale of the furs because of the delay of the defendant was not supported by the proof;
    That the court- was correct in not allowing the plaintiffs to amend their complaint and claim damages for the delay in transportation, for the reason that it would not only be the introduction of a different cause of action, but because there was no proof whatever that any damage resulted from the delay.
    Motion by the plain tiffs, Joseph Steiner and another, for a new trial on a case containing exceptions, ordered to be heard at the General Term of the Superior Court of the city of New York in the first instance, upon the verdict of a jury in favor of the defendant rendered by direction of the court after a trial at a Trial Term of said court on the 26th day of November, 1895.
    The plaintiffs, who are co-partners in the wholesale fur business in New York, bring this action to recover damages for the failure of the defendant’s company (a joint stock association engaged in the transportation business) to transport within a reasonable time a case of astrakhan furs, delivered by the plaintiffs to such company for transportation to Sterling, MacOredie & Co., at Toronto, Canada.
    In November, 1891, one of the firm of Sterling, MacCredie&.Co. purchased of the plaintiffs a case of astrakhan furs either upon approval, or, as One of the plaintiffs,states, “conditional to sample.” David Steiner, one of the plaintiffs, testified: “ I had three cases alike; one we kept in bond which we shipped to Toronto, while one case Mr. Sterling seen here. We showed him how they run, and he said, ‘ If they run that way, send them on as quick as you can.’ * * * That is what I mean by conditional to sample.” The Mr. Sterling referred to was called as a witness for the defendant, and testified that his purchase of the skins was simply on approbation, and that there was no time specified for delivery. The goods were shipped by Merchants’ Despatch on November eleventh. In ordinary course they should have arrived at Toronto within four or five days. By mistake the goods were shipped via .Montreal, instead of by the usual route, via Suspension Bridge, so that they did not reach their destination until November twenty-sixth. On that day Sterling, MacCredie & Co. wrote the plaintiffs as follows :
    “ Dear Sirs — The ■ lost case of Astrachans arrived to-day from Montreal, and to say that we .were disappointed on examining the same is to put it mildly. We thought you would ship us some decently fair skins, but such a poor lot of skins we never handled. We inclose manifest, which please have tilled in and return, and we will have cases shipped back at once. -Regretting that the transaction is so very unsatisfactory, we are,” etc.
    On November thirtieth the plaintiffs replied :
    “ Gents — Tour letter to hand, aud we are sorry to hear that the goods did'not-come up to your expectations, and that there should have been such a delay in delivering the goods to. you, as: we sold several similar cases here at the .time and could also have sold the case we sent to you, but since then these goods have declined in value, and we could not realize the same price now. We claim that it is the fault of the Merchants’ Despatch that the goods were sent to Montreal instead of Toronto, and had they been forwarded immediately we certainly could have ordered them back - and sold them. We wish you would. write us to the effect that the goods have been delayed and came too late to your place, as we intend to make complaint against the M. D. Hoping you will write us a letter to that effect, we remain,” etc. ;
    Accordingly, on December second, Sterling,. MacCredie & Co; accommodated the plaintiffs with a letter as follows :
    “Dear Sirs — Tour case of Astrachans invoiced to us 9 Novr-. and shipped per Merchants’ Despatch, arrived via Montreal -26th ult. too late to be of any use to us whatever. This delay has caused us serious loss, as the season is so far advanced. We have no time to manufacture up the goods, even if we could get them elsewhere.. We await your instructions,” etc.
    Upon the trial, at the close of the case, the plaintiffs asked to go to the jury upon the questions, “jb'st, was there any delay? and, second, was there.any damage caused by it?” .And further asked to be allowed to conform the pleadings to the proof in order to raise the above questions. This motion was denied and the plaintiffs excepted. The court directed a verdict in favor of the defendant, to which the plaintiffs excepted, and the court ordered the exceptions to be heard here in the first instance.
    
      fflncmuel. J. Myers, for the plaintiffs.
    
      Oliver B. Bud, for the defendant.
   O’Brien, J.:

The theory of the complaint is that the plaintiffs lost the sale of the astrakhan skins to the consignees by reason of the delay in their delivery by the transportation company. Such cause of action, however, they failed to prove. Their testimony tended to show that the goods were sold by sample; but whether such sale was an, absolute one or one subject to the approval of the consignees was brought in question. The weight of the evidence was favorable to the view that they were sent on approbation or approval; and were there no other question in the. case there might be force in the plaintiffs’ argument that the judge below should not have directed a verdict upon this ground, but should have submitted the question to the jury. This question, however, was not controlling, because it appears beyond cavil that the goods were rejected by the consignees because not according to the sample or contract, being in their view inferior in quality. Although, at the request of the,, plaintiffs, the consignees afterwards wrote a letter saying that the goods arrived too late to be of any use, and that such delay caused loss, still it is placed beyond doubt that the real ground of rejection was, not the delay, but the inferior quality of the goods. It thus being shown that the delay was not what caused a loss of the sale of the goods to the consignees, the plaintiffs failed to prove their alleged cause of action.

It is insisted, however, that, conceding that the, goods were shipped subject to approval, as the' transportation company failed to transport and deliver them diligently, the plaintiffs, having asked to be allowed to amend the pleadings so as to conform to the proof, should have been permitted to go to the jury upon the question of their damages. Such a ground, however, is entirely inconsistent with the cause of action alleged, and the plaintiffs’ motion was properly denied. But, even if granted, it would not have helped the plaintiffs, for the reason that there was a failure to prove any loss or damage by reason of the delay. We think, therefore, where, as here, the plaintiffs directly selected the ground upon which they based their right to recover, and endeavored to fortify this by inducing the consignees to write a letter, which cannot be said to reflect credit on any of, the parties, that after it was found that such a theory would not prevail, the court was justified in disallowing an amendment which would have introduced a different cause of action, and which, as we have said, upon the evidence, even if allowed, would not have saved the plaintiffs’ case.

We think that the direction in the defendant’s favor was right, and that the exceptions should be overruled and judgment directed for the defendant upon the verdict, with costs.

Van- Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.

Exceptions overruled and judgment ordered on the verdict, with costs-.  