
    William N. White and Alice L. White, Appellants, v. The North German Lloyd Steamship Company and The Delaware, Lackawanna & Western Railroad Company, Respondents.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Carriers — Carriage of goods — Contracts for transportation in general — What amounts to contract for transportation — Permit for delivery to steamship.
    Permits for the delivery of goods, destined for export, to a steamer used by the steamship company to facilitate the classification, distribution and loading of the cargo, constitute mere offers to receive goods and do not obligate the shipper to deliver goods; and such permits are revocable at any time before the goods are offered for shipment.
    A shipper, upon' receiving notice from the defendant railroad company of the arrival of three car-loads of apples destined for export, procured permits for loading them on a steamer of the defendant steamship company, delivery to be made March 4th. ITie shipper, after having added “a. m.” to the words “ March 4th,” sent the permits to the defendant railroad company before 2 p. m. on March 1st with a letter which stated, in substance, that the goods could be taken “ alongside to-morrow afternoon or early Monday morning.” The defendant railroad company delivered the apples alongside the steamer designated in the permits at about 3 p. M. March 4th. The steamship company accepted only one car-load and refused to accept the other two. The vessel was to sail the next morning and, at the time the two car-loads of apples were offered, it had accepted so much other freight there was no room for them. The two car-loads of apples were on the cargo list and those in charge of loading the vessel waited for them until 1 p. m. March 4th. In an action to recover loss suffered in consequence of failure to ship plaintiffs’ apples, held, that no contract between the shipper and the steamship company binding the latter to enter into the relation of shipper and carrier by receiving the apples when tendered at 3 p. m. on March 4th Was shown, and a verdict setting aside a judgment in plaintiffs’ favor should be affirmed.
    -Appeal by the plaintiffs from an order of the Municipal Court of the city of ¡New York, third district, borough of Manhattan, dismissing the complaint as to the defendant railroad company and from an order setting aside a verdict of the jury in favor of the plaintiffs as to the defendant steamship company, and from the judgment entered thereon.
    Charles Caldwell, for appellants.
    Choate & Larocque (Joseph Larocque, Jr., and Cambridge Livingston, of counsel), for respondents.
   Ford, J.

Plaintiffs-appellants desired to ship three carloads of apples which had arrived at Hoboken via the line of the defendant railroad company and were destined for export on a vessel of the other defendant. ¡Notices of the arrival of the apples were sent to the plaintiff White, who, in accordance with instructions stamped on the notices, procured through a ship broker permits for loading them on the vessel. These permits, together with a check for the freight, the bills of lading and the notices of arrival, he sent with a letter to the defendant railroad company before two o’clock in the afternoon of March 1,190J. It appears that the identical permits were lost, but one like them, as issued by the steamship company, was admitted in evidence and is as follows:

“ Hew York, 2/28, 1907.
“Per Steamer, Kaiser Wilhelm der Grosse.
“ Engaged from W. H. White & Co.
“ Delivery March 4th.
“ Goods, 6 Cars Er. Apples.
“ Destination — Hamburg.
“ Hobth German Lloyd S.S. Comhany.
Oelrichs & Cti., Gen’l Agents, 11 Broadway, H. Y.
Receiving Clerk. Hew Yobic 2/28, 1907.
“ Horth German Lloyd Piers, Hoboken.
“ Receive for shipment per German Steamship, Kaiser Wilhelm der Grosse, on JMarch 4th, the following goods for account of M. W. H. White & Co 1 car Fr. Apples.
for Hamburg,
“ Every package must be plainly Port of Destination.
marked with port of via. B. haven
destination. Oelrichs & Co.
“ Hotioe.— Ship’s receipt must be surrendered and bills of lading procured at the Company’s office, 5 Broadway, H. Y., one or two days before sailing of the steamer. Custom House Clearance for all goods required with bill of lading.
“Attention of shipper is called to the following clause in the Bill of Lading:
“Also, that merchandise on wharf or lighter awaiting shipment or delivery be at the risk of the shipper or the holder of the Bill of Lading for loss or damage not happening through the fault or negligence of the owner, master, agent or manager of the steamer or lighter, any local customs or privileges to the contrary notwithstanding.”

Plaintiff White testified without contradiction that on the permits sent by him to the defendant railroad company after the date “ March 4th ” he added the abbreviations “ A. M.” The letter accompanying those permits and addressed to the railroad company stated: “ Permits for the steamer Kaiser Wilhelm der Grosse which can be taken alongside to-morrow afternoon or early Monday morning.”

The railroad company delivered the three car-loads of apples at about three o’clock in the afternoon on March fourth (which was Monday), alongside the steamer designated. The defendant steamship company accepted one car-load, but refused to accept the other two. The vessel was to sail the next morning and, at the time the two car-loads of apples were offered, it had accepted so much other freight for shipment that there was not room for them. The two car-loads of apples were on the cargo list and those in charge of loading the ship waited for them until one o’clock on March fourth. Because they had not arrived by that time, other freight was accepted to the exclusion of two of the car-loads of apples. The plaintiffs suffered loss in consequence of their failure to ship their apples on the vessel and sued therefor. The complaint was dismissed as against the defendant railroad company, and a verdict found against the other defendant was set aside.

The cause of action against the steamship company is for breach of contract. The relation of shipper and carrier had not yet been established between the plaintiffs and that defendant as to the two car-loads of apples in question. Upon the undisputed facts in the case, it is perfectly clear that plaintiffs’ contention can be sustained on no other theory. If they had based their suit upon the mere failure of the steamer to receive their goods, relying upon the law governing common carriers and defining their obligations toward the public, the case of Fowler v. Liverpool & Great Western S. S. Co., 87 N. Y. 190, would be sufficiently decisive to defeat their claim. To succeed at all against the steamship company, they must show a binding contract between themselves and that company obligating the latter to enter into the relationship of shipper and carrier by receiving the apples when they were tendered at three o’clock on March fourth. Was there such a contract?

Plaintiffs insist that there was. I am of opinion that there was not. The permits, on which plaintiffs rely, were mere instrumentalities of convenience, employed by the steamship company to facilitate the classification, distribution and loading of the cargo. They obligated the plaintiffs in no way. They could be revoked at any time before the plaintiffs offered their goods for shipment. Until that time there could be no certainty on the part of the steamship company as to whether the apples would arrive or not and it had no assurance that, if it should reserve space for them to the exclusion of other freight and thus be obliged to leave port without a full cargo, it would be reimbursed for its loss by the plaintiffs. At most, the permits constituted an offer by the defendant steamship company to receive the apples on board its steamer, but did not bind the plaintiffs to deliver them. It therefore lacked the element of mutuality and could not bind the defendant. To this effect are Chicago & Great Eastern R. R. Co. v. Dane, 43 N. Y. 240, and a long line of decisions in which that case is cited with approval. The Appellate Division of the Second Department in Pomeroy v. Newell, 117 App. Div. 800, holds that such an offer, being without consideration, may be withdrawn at any time. In that case it was held that an option, unsupported by a consideration, to sell real estate would be withdrawn by a sale of the property to another purchaser during the period of the option. It cites as authority among other cases that of Dickinson v. Dodds, L. R. (2 Ch. Div.) 463, a leading English case. Its facts are as follows, as given in Chitty on Contracts (pp. 11, 12, 14th ed.) : The defendant, on Wednesday, the 10th of June, handed to the plaintiff a signed memorandum by which he agreed to sell to the plaintiff his house and garden at Croft for 800' 1., adding a signed P. S.: This offer to be left over until Friday, 9- o’clock a. nu 12-th June.’ On Thursday the defendant sold the property to another person, and on Friday about 7 a. m. both the plaintiff’s agent and the plaintiff handed notices of acceptance to the defendant.”

The plaintiff thereupon brought suit for specific performance and obtained judgment which was reversed by the Court of Appeal, James, L. J., observing: “There was no consideration for the promise, to whatever extent it may be considered binding, to keep the property unsold until nine o’clock on Friday morning; but apparently Dickinson was of opinion, and probably Dodds was of the same o-pinion, that he (Dodds) was bound by that promise until nine o’clock on Friday morning. But it is settled law that this promise, being a mere nudum puctum, was not binding, and at any moment before a complete acceptance by Dickinson of the offer, Dodds was as free as Dickinson himself.”

In the case before us the defendant steamship company waited until one o’clock on the last day for loading freight and then accepted other -freight in place of that of the plaintiffs, which had failed to arrive up to that time. It was under no more obligation to reserve the space until the apples arrived than was Dodds to hold his property for Dickinson. See also Ganss v. Guffy, etc., 125 App. Div. 760. That it did accept one of the three car-loads of apples at three o’clock was a favor to the plaintiffs, which may not serve as ground for punishing it for not extending additional courtesies.

As to the defendant railroad company, in whose behalf no brief was filed, I am of opinion that the dismissal of the complaint as to it was error. After the notices of arrival reached the plaintiff White, he gave clear and explicit instructions to deliver the apples to the steamer Monday forenoon, March fourth. These instructions should have been followed, and, if followed, the apples would clearly have reached the steamer in time to be taken aboard. It had no right to substitute its own judgment that delivery at any time during March fourth would do in place of those explicit directions. Mr. White’s letter, accompanying the permits sent on March first before two o’clock, clearly designated “ to-morrow (Saturday) afternoon or early Monday morning ” as the time when the apples should be alongside the steamer in order to be loaded. Moreover, he wrote the abbreviations “A. M.” after the words “March 4” on the permits as an extra precaution against a too late delivery. The railroad company had no right to take the language of the steamship company which appeared on the permits for their guidance, and disregard the written directions of the plaintiffs, which appeared thereon and in the letter which accompanied them. It was to their shippers, the plaintiffs, to whom it should look for instructions concerning their property, and not to a third party with whom, so far as the apples were concerned, it had no contractual relations. If it undertook to deliver them at all, it should have delivered them within the time designated by plaintiffs. If the instructions to it came too late for delivery within the time specified without unreasonable effort on its part, it might have held the apples and stood upon its legal rights. Enough was shown to put the railroad company to its proof that its failure to deliver on time occurred without fault on its part.

The order dismissing the complaint as to the defendant railroad company should be reversed, with costs to the appellants to abide the event, and the order setting aside the verdict for the defendant steamship company and the judgment entered thereon should be affirmed, with costs to the respond-' ent steamship company.

Giegerich and Hendrick, JJ., concur.

Order dismissing complaint as to defendant railroad company reversed, with costs to appellants to abide event, and order setting aside verdict for defendant steamship company and judgment entered thereon affirmed, with costs to respondent steamship company.  