
    Marie Joseph Ennomond Morel et al., Appellants, v. John N. Stearns, John N. Stearns, Jr., and Others Composing the Firm of John N. Stearns & Co., Respondents.
    (Supreme Court, Appellate Term,
    March, 1902.)
    Sale — Delivery — Memorial day — Due course of mail in. New York city.
    A memorandum, executed on behalf of vendors, of goods, in France with vendees in the city of New York, stipulating that the goods shall be “ Deliverable, April and May 1900 ” but not fixing the place of delivery, is to be construed as meaning only that the goods shall be in the port of New York, ready for delivery, during May at the latest, and therefore where the vendors’ local agents mail the vendees a letter at 6:50 p. m. on May 29, 1900, stating that the goods are on a steamship “ which is due to-day or to-morrow ” and ask for shipping instructions as to the place of delivery, and the vendees, Memorial Day intervening, do not attend at their place of business or receive the letter or reply to it until May 31, and in the reply demand delivery at their place of business on May 31, a delivery about noon on June 1, is in time.
    Memorial Day is a legal holiday but is not a dies non and any business may be transacted during it except such acts as are expressly 1 excepted by statute.
    The court will take judicial notice that a letter mailed in the city of New York at 6:50 p. ir. on May 29 would be delivered, in the usual course of the mails, on the morning of May 30.
    Appeal from an affirmance by the General Term of the City Court of the city of New York of a judgment, entered on a verdict directed by that court at a Trial Term.
    Norwood & Dilley (Carlisle Norwood, of counsel), for appellants.
    
      Hitchings, Palliser & Moen (Hector M. Hitchings, of counsel), for respondents.
   Geeebtbaum, J.

This action is brought upon an alleged breach of a written contract for the sale and delivery of raw silks. A verdict was directed for the defendants by the trial judge and, from the affirmance of the judgment entered, the plaintiffs appeal.

The facts are substantially conceded. The plaintiffs are silk merchants at Lyons, Erance, having New York agents through whom the contract of sale was made in the city of New York with the defendants, who are silk manufacturers, having an office in New York city, with factories in Virginia. The contract of sale is in the nature of a memorandum, which fixes the price, terms of credit, character and quantities of the goods ordered and with respect to the delivery, contains the following phrase: “ Deliverable, April and May 1900.” In the performance of the contract a number of deliveries of silk had been made and the practice, in all of these cases, was for the New York agents of the plaintiffs to notify the defendants by letter of the arrival or expected arrival of the lot of goods and to ask for shipping instructions. In all the instances, excepting the one out of which this case arises, the answer of the defendants was, to ship to ono of their Virginia houses, via the Old Dominion Line, and the goods were invariably delivered by the plaintiffs’ agents as directed by the defendants to the Old Dominion docks in New York, the cartage charges being paid by the plaintiffs. The final shipment of silk under the contract consisted of six bales of the value of upwards of '$6,000, and on the evening of May 29, 1900, the plaintiffs’ New York agents mailed a letter to the defendants stating that the six bales were on the “ S. S. Trave, which is due to-day or tomorrow,” and that they “ should be pleased to receive shipping instructions for the same.” May thirtieth was Memorial Day. The defendants testified that they received the letter of May twenty-ninth on the thirty-first, by mail, and on the same day (thirty-first) replied to the letter of the plaintiffs’ agents of the twenty-ninth by saying “ that we want the six bales of Italian silk, referred to, delivered to us at 68 Greene St. to-day, May 31st.”

This letter was received by the plaintiffs’ agents “ by or before noon” of the thirty-first, and at about three p. m. of the thirty-first of May, the plaintiffs’ agents delivered to a firm of forwarding agents, the necessary documents and instructions as to the delivery of the goods in question to the New York store of the defendants. On the morning of June first, the common carriers took the goods off the dock at Hohoken, N. J., the landing-place of the S. S. Trave, and delivered them at the New York store of the defendants at about twelve o’clock noon of that day. The price of raw silk had declined considerably in the market between February and May, 1900, and the defendants refused to accept delivery on the ground that the goods were not delivered on time. It is conceded by both parties to the controversy, that a contract of the nature described, would require strict performance as to time of delivery on the part of the vendors. Defendants claimed that no delivery was made in accordance with the provisions of the contract and the course of dealings between the parties with respect to prior shipments under the same contract and the trial judge concurring in this view directed a verdict in defendants’ favor.

The court will take judicial notice of the fact that a letter, mailed in the city of New York at six fifty p. m. on May twenty-ninth, would be delivered in the usual course of the mails on the morning of May thirtieth. Livingston v. Spero, 18 Misc. Rep. 243. Defendants not only did not attend at their place of business on May thirtieth, but they made no provisions for obtaining their mail on that day.

Memorial Day is not a dies non. It is a legal holiday, but not placed on the same basis as Sunday by statute. “ In the present state of the statutes,” says the Court of Appeals, fin the recent decision in the case of Page v. Shainwald, 169 N. Y. 246, “ we are of the opinion that upon holidays other than Sunday, all transactions may be carried on as on any other day,” with the exception that negotiable instruments maturing on a holiday become payable on the day following and that no business is to be transacted in public offices of the State and counties. To the same effect, see Walton v. Stafford, 162 N. Y. 559.

Since the argument of this appeal the Public Holiday Law has been amended (chap. 39, Laws 1902, passed Feb. 20, 1902).

It is therefore apparent that defendants delayed twenty-four hours in acknowledging receipt of the letter of May twenty-ninth • and in giving instructions to plaintiffs’ agents as to where the goods were to be delivered.

The contract said nothing as to the place of delivery, and on the previous occasions the parties practically agreed upon the place of delivery, after the arrival of the goods in port. The contract should be construed with respect to the situation of the parties, and the character of the transaction. The plaintiffs were in France, the defendants were in New York. The goods were to be shipped from Europe to New York. What was the intention of the parties when they employed the words “ deliverable — April & May, 1900 ” ? It is reasonable to hold that it was intended between the parties that the goods were to be in the New York port during the period limited in the contract, ready to be delivered in the city of New York by the plaintiffs, upon instructions from the defendants as to where delivery is to be made. The contract is silent as to place of delivery, and the course of dealings between the parties was such that the defendants would, after notification of the arrival of the goods, give directions as to the place of delivery, and plaintiffs had therefore delivered the goods at their own expense to the Old Dominion docks in the city of New York. In the case of the final shipment under the contract due notice of the arrival of the goods was given in accordance with the practice of the parties, and, 'within twenty-four hours after receipt of directions as to place of delivery, the goods were actually delivered as requested. It may, therefore; be assumed that, had the defendants notified the plaintiffs’ agent twenty-four hours sooner as to-the place of delivery desired, the goods would even have been delivered on May thirty-first. Suppose defendants had delayed instructions as to delivery until late in the afternoon of May thirty-first, could it be said in reason, that the plaintiffs were nevertheless obliged to make an actual delivery before June first in accordance with the belated directions ? We think not.

The plaintiffs were required to exercise diligence in delivering-the goods after defendants’ instructions; there is no testimony that the plaintiffs failed to act with reasonable diligence after notification, and we are, therefore, of opinion that the plaintiffs duly performed their contract, and that the judgment must, therefore, be-reversed.

Freedman, P. J., and Giegerich, J., concur.

Judgment reversed, and new trial ordered, with costs to appellants to abide event.  