
    Christian Tobias et al., Resp'ts, v. Lazarus Lissberger, App'lt.
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    1. Contract—"Promptly shipped.”
    Defendant purchased through brokers 100 tons of old iron vignol rails on terms in the sold note of " prompt shipment by sail from Europe.” The rails were shipped February 3d at Stettin, forty miles from the sea the ice on the river leading to the sea being two or three feet thick, and it remained solid until April, when the vessel made the usual voyage to New York. Rails of the kind described in the contract could have been obtained at any time in other European ports IMd, that the goods were not “promptly shipped” according to the terms of the contract, and that the trial court erred in directing a verdict for the plaintiffs
    2. Same.
    Plaintiffs claimed that as they ordered the rails at once, “if any delay thereafter occurred to the prejudice of the defendant he must look to the ship for his indemnity.” Held, that this position fails, as no privity existed between defendant and the vessel or its master, and that defendant’s contract involved not only a purpose to transport, but an expectation that transportation could commence, if not at once, certainly within a reasonable time.
    Appeal from, judgment of supreme court, general term, first department.
    
      William H. Page, Jr., for app’lt; Joseph A. Shoudy, for resp’ts.
   Danforth, J.

This action is for not accepting certain goods according to a contract made through brokers, in these words:

“New York: February 2, 1881.
“Sold to Mr. L. Lissberger, New York, for account Mess. 0. Tobias & Co., New York, about one hundred (100) tons old iron vignol rails for prompt shipment by sail from Europe, and for delivery on dock at the port of New York (dangers of the sea excepted), at twenty-eight (28) dollars per ton of 2,240 lbs. weight, as per United States weigh-master’s return. Terms of settlement as follows: Eighty (80) per cent cash, payable when rails are landed on dock, and balance payable on receipt of U. S. weigher’s certificate.
“Mann & Jones, Brokers.
“Accepted: L. Lissberger.”

The complaint, after setting out the agreement, alleges “that the plaintiffs promptly shipped by sail from Europe a lot of about 100 tons of such rails, and duly performed all the conditions of the contract on their part, and on the 14th of June, 1881, were ready and willing to deliver, and duly tendered ” the rails to the defendant, who refused to accept or pay for them; that upon notice to defendants they sold the rails on their account, and after applying the proceeds there remained due $345.15, for which, with interest from June 14, 1881, they ask judgment. The defendant by answer expressly admits the contract, and that on the fourteenth of June the plaintiffs were willing to deliver, and then tendered to him, the rails mentioned in the complaint, and a refusal on his part to accept, and the plaintiffs after notice sold the same. He denies, however, the other allegations in the complaint, and particularly denies that the goods were promptly shipped from Europe; and says that, on the contrary, there was delay of two months or thereabouts in such shipment, in consequence of which the goods were of less value in the market than they would have been if promptly shipped; that in this omission the plaintiffs failed to perform the contract on their part, and he therefore refused to accept the rails.

Upon the trial of these issues the plaintiffs read the deposition of the captain of the ship Brunn, to the effect that his vessel, then lying 'at Stettin, in Germany, was chartered on the 1st of January, 1881, for different kinds of goods for New York. Stettin was about forty miles from the sea, situated upon a river. That upon the 3d of February, 1881, he received, on board from the shippers, Ignatz Rosenthals, Wie & Co., 535 pieces of old rails, deliverable in New York on payment of freight. The bill of lading then given by him, and dated February 3, 1881, was produced by the plaintiffs, is to the same effect, and purports to be indorsed in blank, “Ignatz Rosenthals, Wie & Co.” It also appeared from the captain’s testimony that, when these rails were shipped, the river was frozen fast, the ice being two or three feet thick. It was then expected the ice would break up in March. But the river, which had become closed to navigation about the twentieth of January, remained so until second or third of April, on which last-named day the vessel sailed, and after a voyage of the ordinary length arrived in New York.' Usually the ice had broken up at Stettin late in February or early in March, but the winter of 1881 was of extraordinary severity. It was shown in evidence that rails of the kind described in the contract could have been obtained at any time in other European ports, where detention by ice was unknown,—ports even in Germany, as well as in France and England, and among others London and Liverpool. They seem to have been common in the markets, and to be procured easily.

It is stated by the respondent that the only question litigated at the trial was whether the goods were promptly shipped, according to the terms of the contract, and the record sustains that view. The trial judge, against the exception of the defendant, directed a verdict for the plaintiffs. Upon denying a new trial he was of opinion that “prompt shipment,” under the words of the contract, was within the shipment proven; saying also that “if the defendant wished to provide against a distant port in Europe, or any other delaying cause, it was in his power to make it a, part of the contract; ” and, failing to do this, says: “I think the point he makes cannot be sustained.” But he added: “I do not put the decision of the case on the grounds above stated, but upon the ground that after the contract, after notice of shipment, the defendant waited until after the arrival here before making the objection now made.” The general term discusses only the ground first stated by the trial judge, and by a divided court sustained his decision.

The minds of the parties met when the sold note was communicated to and accepted by the defendant. It is the only evidence of the contract, and upon its proper construction the rights of the plaintiffs depend. Their action is upon the theory that the contract imposed upon them the obligations of bringing the goods to New York, and there having them ready for delivery. They were therefore to furnish the rails either by selection from their own stock, or by purchase or other means; but, however obtained, the rails were to be got from Europe by sailing vessel at the expense and at the risk of the vendors. They were to ship the rails in such vessels as they chose, on such terms as they and the master could agree upon. They were to land them on the docks in New York, and at that moment only did any duty attach to the defendant, who was then to pay a certain proportion of the price. The vendors were to procure the weigh-master’s return, and on its receipt the balance became due. The plaintiffs, then, have sold a quantity of iron, and the question arises as to how the condition shall be performed which will enable them to make delivery, and entitle them to demand payment from the vendee. No time is specified; and, if there was nothing else in the contract, it would undoubtedly be the duty of the vendors to make delivery of the thing sold within a reasonable time; and, to determine whether the plaintiff had been able to do so, the facts and the circumstances attending the transaction would have to be considered. But although the contract specifies neither month nor day, nor duration of time within which or on which they must perform, it does specify the manner of doing the act which makes performance possible.

The contract provides for “ prompt shipment,” and it is this condition on which all other stipulations hang. So the plaintiffs understood it; and, as we have seen, they alleged, as a condition precedent to the right of action, that they “promptly shipped” the iron. This implies expedition, admits of less delay than would be permitted under a covenant to act merely within a reasonable time, and in effect the plaintiffs interpret it as meaning “directly” or “at once.” Such, indeed, was their conduct. The contract was made in New York on the 2d of February, 1881, and the plaintiffs rely upon a bill of lading showing that on the very next day, at Stettin, iron rails answering in description to those named in the contract were put on board a vessel chartered for New York. Therefore the respondents’ contention is that the whole condition is satisfied; and, “if any delay thereafter occurred to the prejudice of the defendant, he must look to the ship for his indemnity.” The last position fails when we see that no privity existed between the defendant and the vessel or its master, and that his only contract relation was with the plaintiffs. The sole object of prompt shipment was to secure a speedy arrival for delivery in New York. Until then the goods were at plaintiffs’ risk, and only then could the defendant’s liability attach. Before that event happened there was to be neither transfer of title nor transfer of possession. It is quite unimportant to inquire how it might be as between the master of the vessel-and the plaintiff or the shipper, one of whom may be assumed to be the owner, and the other, by virtue at least of the bill of lading, entitled to possession.

As to the plaintiffs in the case before us, it is more reasonable to construe the condition of prompt shipment as a precedent to delivery, and- so relating to the actual commencement of the voyage that the known unnavigable condition of the river could furnish no excuse for the delay. The defendant was entitled to such timely delivery as would follow an effective shipment; in other words, to an exact performance by the plaintiffs of their contract to ship and deliver—not two things separable in their nature, but two steps to a single end. That involves not only a purpose to transport, but an expectation that transportation would commence, if not at once, certainly within a reasonable time. Shipment cannot be said to have been made from Europe when the port selected had no passage-way or outlet. Nor can it be fairly argued, even, that the iron was shipped “ for delivery in New York,” if it was apparent to the shipper that the vessel could not leave the docks where it took in freight. Something more than shipment was bargained for, viz., prompt shipment; and the delivery was to be within such time as. dangers of the sea only excepted, might reasonably follow. Nothing less could have been in the minds of the parties than expedition, or immediate and effective or beneficial shipment as a step towards delivery. Payment was postponed to delivery, both to be made in New York. The sale was for shipment from Europe, altogether at the vendor’s expense and risk, and no exception was provided for save “dangers of the sea,” among which a certain and safe confinement in port is not included.

In Duncan v. Topham (8 C. B., 225), the order was for certain goods to be put on board directly. The complaint alleged an order for goods to be delivered within a reasonable time, and the plaintiff failed in his action because the proof did not support the declaration, it being held that ‘ ‘ a reasonable time ” was a more protracted delay than “ directly.” The contract here goes further. “Prompt” is synonymous with “quick,” “sudden,” “precipitate,” Indeed, one who is ready is said to be prepared at the moment; one who is prompt is said to be prepared beforehand. Such represents the condition of the plaintiffs. Their immediate loading of the vessel shows that they were prepared beforehand; but, if their construction of the contract is correct, the qualifying word might as well be one of postponement and delay. The fault was with the plaintiffs. It was optional with them to ship from any port in Europe. If, at the time of shipment, the plaintiffs or their agents knew, or might have known, that detention and delay at the place of shipment, and before ground could be broken for the voyage, were unavoidable and to be expected, they must have also known that the delivery could not be made as contracted for, and the subsequent tender was too late. It was not a “prompt shipment,” and the defendant was not bound to receive the cargo..

It is now contended, however, by the plaintiff, that the appellant is estopped from denying that the rails were shipped in accordance with the terms of the contract. This might, under some circumstances, furnish a question for the jury. It cannot be said, as matter of law, that those now relied on have that effect. It appears that the usual length of a voyage from Stettin to New York is forty-nine days. On the first of March the defendant was notified by the plaintiffs that the 100 tons of rails sold to him “are shipped * * * from Stettin,” but the date of sailing was not given; and, in answer to defendant’s inquiry concerning it, the plaintiffs replied they were not informed. On the nineteenth of March, they told him the bill of lading was ■dated February third, but that they had “ no date of the vessel’s sailing.” On the fourth of May they wrote, “according to New York Maritime Register, the Ger. Bk. Ferdinand Brumm, with 100 tons rails sold to you, sailed from Stettin, April sixth, for New York.” The vessel arrived at New York, and on the fourteenth of June, when tendered by the plaintiffs, the defendant in writing refused to receive them, saying the rails were not shipped according to contract We find nothing in these letters which would authorize a court to say that that the defendant had waived performance by the plaintiff. There is no evidence that he knew the circumstances attending or causing the delay; none that he was informed that the vessel, when loaded, was ice-bound, nor of its detention from that cause. Moreover, the sole act relied upon in the complaint as a breach of _ the contract on defendant’s part—a refusal to accept the rails tendered—took place, as is there alleged, and is admitted in the answer, on the fourteenth of June. Then the plaintiffs say they were ready and willing to deliver, and duly tendered the goods, and the defendant refused to receive them. If I am right in my view of the contract he was under no obligation to do so.

I have not overlooked the argument of the plaintiffs by which our attention is directed to the difference between “shipment” and “sailing,” nor failed to examine the definitions and decisions upon which the argument is founded. The context of the cases cited, however, prevent the application of the decisions to the one before us; and, while the terms are no doubt well defined, there is no definition nor adjudged case which implies that an agreement to deliver goods after prompt shipment is satisfied by merely placing them on board a vessel, which, although it should weigh anchor, or cast off moorings, and make other preparations to depart, could not for a considerable period of time—in this case exceeding the customary length of the intended voyage—leave the spot where the cargo was received. Such a shipment would be colorable and deceptive. If it answered the letter of the contract, it defeated its purpose. It would not in fact be the inception of the voyage, and the burden of showing a bona fide shipment would not be sustained. In all the cases referred to by the respondent, the obligation to ship at or within a certain period was held to be unperformed unless the ship might also sail at or within the time stated. Nothing less would be beneficial to. the purchaser. The evident object of expressing the time of shipment, as declared in those cases, was to provide that the article purchased should come forward at such time as would, in the opinion of the purchaser, make the venture profitable, or, as to time of arrival or payment, suit his convenience. Bowes v. Shand, 2 App. Cas., 455; Alexander v. Vanderzee, L. R., 7 C. P., 530.

Another class of cases, also cited by the respondent, shows that when goods are sold, and are to be delivered on board of vessels, either provided by the purchaser or by his appointment, putting on board is a good shipment, whether the vessel is in condition or is expected to sail or not. Fisher v. Minot, 10 Gray, 260; Newhall v. Vargas, 13 Me., 105. The principle on which these cases were decided is not involved here, and the others do not lessen the strength of the appellant’s case.

The time and manner and place of shipment might, indeed, have been accepted by tne defendant as in compliance with the contract; and whether it was or not, and whether with full knowledge of the facts there was on his part a waiver of the strict performance of the condition on the plaintiff’s part, were questions for the jury. The trial court, therefore, erred in directing a verdict for the plaintiffs. It follows that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

All concur, except Rtjger, Ch. J., dissenting.  