Conkling v. Brooklyn Lumber Co.

41 N.Y.S. 801 | N.Y. App. Div. | 1896

Cullen, J.:

The general rule of law is that as the consignee is not a party to the original contract of affreightment he is not bound to accept the cargo at any particular time and incurs no responsibility by a refusal or delay in accepting it. He becomes a party to the contract by accepting the cargo, but then to no further extent than as the conditions of the contract are expressed in the bill of lading. Where the bill of lading makes no provision for demurrage, the consignee incurs no liability therefor. (Gage v. Morse, 94 Mass. 410.) Still there is an exception to the general rule and a consignee who is also the general owner of the cargo is liable for unreasonable detention of the vessel at the port of discharge. (Dayton v. Parke, 142 N. Y. 391; Scholl v. Albany, etc., Iron & Steel Co., 101 id. 602.)

In the case before us, as we interpret the testimony (though it is not entirely clear on the point), the defendant had made an executory contract for the purchase of a quantity of lumber. The vendors shipped the lumber to defendant by plaintiff’s lighter. The bill of lading contained no provision for demurrage. The defendant failed to accept the lumber for a period of some ten days. The plaintiff testifies that the only reason given for the delay was the inconvenience to the defendant in receiving the lumber until its wharves were clear. The defendant’s officers testified that the lumber was not of the quality contracted for ; that for this reason they declined to accept it and notified both the plaintiff and the vendors of the fact; that afterwards the vendors agreed to an abatement of price, and thereupon the defendant accepted the lumber.

If the contract of sale was executory, the defendant was not the owner of the cargo. If the lumber did not comply with the terms of the contract, the defendant was justified in refusing to accept it. The subsequent agreement to accept was substantially a new contract and did not operate retroactively and render the defendant liable for previous delay in the discharge of the carge, though for any delay after the defendant agreed to take the lumber and accepted the bill of lading, it would be responsible. (Crawford v. Mellor, 1 Fed. Rep. 638.)

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.