
    ARTHUR B. WINTERBOTHAM, et al. v. ROBERT T. PAINE.
    
      Contract of sale—deviation by vendor from order as given—loss of goods in transit.
    
    Defendant, a dealer in carriage cloths in this city, sent to the plaintiffs, who were manufacturers of cloths in England, a written order for fourteen pieces of goods of thirty to forty .yards to a piece. Plaintiffs sent thirteen pieces, of which twelve contained over fifty yards each, and one contained thirty-nine and one-half yards,- in all one hundred and eighteen and three-quarter yards more than the greatest number which defendant had ordered in fourteen pieces. Plaintiffs sent the invoice and bill of lading to their agent in New York, with instructions to present them to defendant, and insure performance of his agreement to pay cash on receipt of invoice. After the goods were taken from the vessel, and while upon the dock, and before the invoice and bill of lading wore presented to defendant, the goods were destroyed by fire. In an action to recover the purchase price of the goods the complaint was dismissed.
    
      IIeld, that the dismissal was correct; that defendant had a right to stand upon his order as given, and in sending pieces which did not comply with the order, without defendant’s assent to the change, plaintiffs sent them at their own risk.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.
    
      Decided May 3, 1886.
    Exceptions ordered to be heard at general term in the first instance.
    The facts and exceptions appear in the opinion.
    
      Mitchell & Mitchell and Herbert W. Grindal, for plaintiffs,
    on the question considered in the opinion, urged: I. The goods shipped by plaintiffs were in accordance with the requirements of' the contract. 1st. The goods were ordered to be sent “ as samples.” 2d. The only direction as to length was the expression, “ Say, thirty to forty yards to a piece,” and these words were words of expectation and estimate only;
    II. The correspondence set out in the complaint shows that the defendant had not before purchased this sort of goods of plaintiff, and ordered these goods as samples. He was not familiar with the usual weights, widths or prices, and in his first letter asks for information on these points. He says nothing about lengths, however, and it is everywhere evident that he did not consider that element as important or of the essence of the contract. The plaintiffs’ order was for “pieces” of the goods. It appears by the complaint that pieces of West of England cloth, of the quality ordered by defendant, always average from forty to fifty-six yards a piece, and are always sold by the piece. If the plaintiffs were to send “ pieces ” of goods “as samples” they were surely to send them of the lengths which they were always manufactured. It appears that they did send the shortest that they had. This was the only thing that they could do. Had they sent goods of any shorter lengths they would not have been 1 c sample pieces ’ ’ but only part of pieces.
    III. The words “ Say thirty to forty yards to the piece ” were words of expectation and estimate only (Gwillim v. Daniel, 2 C., M. & R. 61; McConnell v. Murphy, 21 W. R. 509 ; Pembroke Iron Works v. Parsons, 5 Gray, 589 ; Robinson v. Noble’s Admrs., 8 Peters, 181; Brawley v. United States, 96 U. S. 168).
    
      George C. Be Lacy, attorney, and Joseph Fettretch, of counsel, for defendant.
   By the Court.

Freedman, J.

The action is brought to recover the price of goods alleged to have been shipped by the plaintiffs pursuant to defendant’s order. The plaintiffs are copartners engaged in the manufacture and sale of cloths in England. The defendant is a dealer in carnage cloths in New York. The plaintiffs shipped the gc ds by steamship from Liverpool and by the bill of lac. ng consigned the goods to the defendant at New York. But instead of sending the bill of lading to the defendant with the invoice, they sent both the bill of lading and the invoice to their agent in New York with instructions to present the same to the defendant and to insure the performance by the defendant of his agreement to pay cash on receipt of the invoice. After the arrival of the goods at the port of New York, they were taken from the hold of the vessel and placed upon the dock. While there, they were destroyed by fire before the bill of lading and the invoice were presented to the defendant, and consequently before the defendant could get possession of them.

At the trial, the compiamt o^ une plaintiffs was dismissed, and their exceptions were ordered to be heard at general term in the first instance.

Upon this disposition of the case the first and fundamental question which presents itself, is whether the plaintiffs complied with the order of the defendant as given.

It clearly appears that in the course of a lengthy correspondence the defendant ordered the plaintiffs to send fourteen pieces of goods of thirty to forty yards to a piece. The plaintiffs sent thirteen pieces, of which twelve contained over fifty yards each, and the thirteenth of which contained thirty-nine and one-half yards. The total number of yards amounted to six hundred and seventy-eight and three-quarters, or one hundred and eighteen and three-quarter yards more than the greatest number of yards which the defendant had ordered in fourteen pieces. For this deviation from the order the plaintiffs present reasons which would be quite satisfactory if the defendant had in some way assented. But they must be disregarded because they were never made known to the defendant in any way, and he in no wise sanctioned the deviation. His order was in writing, it was clear and explicit, it spoke for itself, and he had a right to stand upon it, whether the goods were or were not ordered as samples. In sending pieces which did not comply with the order, without having procured defendant’s assent to the change, the plaintiffs sent them at their own risk. This is fatal to plaintiffs’ action in every aspect of the case, and renders a consideration of the other questions unnecessary.

The exceptions taken by the plaintiffs should be overruled, and judgment should be ordered for the defendant, with costs.

Sedgwick, Oh. J., and Ingraham, J., concurred.  