Disch v. National Surety Co.

| N.Y. App. Div. | Dec 1, 1922

Finch, J.:

This is an action against a surety company on a bond conditioned that, if the vendor of certain army shirts to the plaintiff failed to deliver on board vessels bound from France to New York before November 30, 1920, consigned to the plaintiff, 150,000 reclaimed army shirts, which had been washed and ironed and which were free from patches, holes and tears, the surety company would indemnify the plaintiff up to $25,000.

The plaintiff showed that only 60,936 shirts were actually delivered, and of these 46,000 were torn, dirty and ragged shirts, and he was awarded as damages the difference between the contract price and the market value in New York of the undelivered shirts, and the difference in New York between the value of the goods delivered as they were and as they should have been.

It is needless to go into the details of the evidence, for, at the outset, it appears that there was reversible error in the principle óf damages presented to the jury. The contract between the plaintiff and his vendor specifically provided for the delivery of goods, property of the vendor, which were in France, upon board vessels bound from France to New York to be paid for by the plaintiff f. o. b. Paris, France, upon delivery of all the necessary shipping documents .to his bank in Paris. It is further provided that the seller should take out insurance in the name of the buyer, and that the premiums were to be added to the purchase price of the shirts and to be paid Out of the funds available under the letters of credit at the same time at said bank in France: The title to the goods, therefore, passed to the plaintiff upon delivery thereof on board the vessel, and the case squarely comes within the rule that damages are to be ascertained as at the place of delivery. (Standard Casing Co. v. California Casing Co., 233 N. Y. 413.) In this connection, also, it is to be noted that the bond itself provided for delivery on board vessels at- France.

For the foregoing reason there must, therefore, be a new trial.

The court below also held that the plaintiff could show that the goods were not up to the sample. In this there was error, for the only conditions for which the defendant obligated itself under the bond were that the goods should be washed and ironed and free from patches, holes and tears, and did not obligate itself that the goods should be like the sample. This can be further seen from the fact that the agreement of purchase in providing for the bond expressly provided what the condition of the bond should be, and the wording of the condition of the bond followed exactly the wording of the agreement. It is true that in another part of the agreement it was provided that the goods should be like the sample, but this was not undertaken, nor required to be undertaken, by the defendant in its bond.

It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Clarke, P. J., Smith, Merrell and Greenbaum, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide the event.