100 Misc. 476 | N.Y. App. Term. | 1917
The plaintiffs and the defendant on August 17, 1915, entered into a contract whereby the defendant sold or agreed to sell and the plaintiffs bought or agreed to buy 1,600 packages of “ Fava Beans, price $1.75 per cwt. F. O. B. Cars Sunset Gulf Shipping Point.” On the twenty-seventh day of
“The J. K. Armsby Co. $1697.68
“ San Francisco, Cal., August 27th, 1915.
“At sight pay to the order of Wells Fargo Nevada National Bank of San Francisco Sixteen hundred ninety-seven and 68/100 Dollars, value received, charge to account of
“ Glanzer Brothers
“ by Glanzer Brothers.
“ To Glanzer Brothers
“ 92 East 4th Street
New York City.”
The plaintiffs made no attempt to prove that the beans delivered to the carrier were not in accordance with the contract of sale or even that they were destroyed by reason of conditions which existed at the time of the shipment. The plaintiffs can, therefore, recover only if under the contract of sale title was to pass only after delivery and inspection in New York and the right to payment was therefore contingent upon such arrival.
While the contract of sale provides “ net cash on arrival and examination at destination,” it is quite evident that if the parties intended that the title to the goods should pass immediately upon delivery to the carrier and that thereafter the risk of loss should fall on the buyer, then this clause must be construed merely as fixing the time for payment and cannot be
The appellant also urges various alleged errors by the trial court which prevented the defendant from proving its affirmative defenses. Inasmuch as upon a new trial the entire theory of the case will be changed it is hardly possible that the same questions will again be presented and it would, therefore, serve no useful purpose for us to consider them now.
Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Bijur and Ordway, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.