185 A.D. 650 | N.Y. App. Div. | 1918
The contracts were executory contracts for the sale of goods. The essential elements of such contracts are an obligation on the part of the vendor to deliver goods of a certain description to thé vendee at some future time, and on the part of the vendee to accept and pay for the same. It appears on the face of the contracts, and nothing in the evidence gives us further or other information, that the goods were not in defendant’s possession at the time of the sale, but at some place from which it was necessary to ship them by cars. For its own protection the defendant inserted-in one contract the words " Subject to safe and sound arrival,” and in the other “ Subject to safe and sound arrival, no arrival, no sale.” It was stipulated on the trial that the goods had not arrived. No evidence was given by either party to show why the goods did not arrive, whether they had ever been shipped, or of any other fact or circumstance to aid the court in its decision. The question submitted to and decided by the trial judge was whether, upon the concession by plaintiff that the goods never arrived, the defendant was entitled to a dismissal of the complaint. The court decided this in the negative and, as no further evidence was offered except on the measure of damages, gave judgment for the plaintiff.
If the contention of defendant is right, it is practically bound by the contract only at its own option, for it has it in its power to ship or not as it pleases, or in other ways to prevent arrival. Business men do not usually make contracts of that kind. Buyers of merchandise for future delivery have to provide for the anticipated needs of their business. It would be an improvident buyer who would purposely make a contract that would enable the seller to complete or not as it should turn out to be profitable or otherwise. This consideration, although not decisive, is entitled, to weight. The contract should not be interpreted to give the seller
We are referred to cases in which the words “ to arrive ” or “ on arrival ” are held to import into the contract a condition precedent so that the obligation of the vendor is dependent on arrival. (Russell v. Nicoll, 3 Wend. 112; Idle v. Thornton, 3 Camp. 274; Johnson v. Macdonald, 9 M. & W. 600; Lovatt v. Hamilton, 5 id. 639.) We note first that in these cases we often find suggestions by the court that if defendant prevented
The second contract, made two days after the first, contains the words “ subject to safe and sound arrival, no arrival, no sale.” We think that the addition of the four words “ no arrival, no sale,” was not intended to give to the contract a meaning other than such as we have suggested. The defendant was bound in good faith to the fulfillment of the contract. The intent of the parties was that it should be relieved if through fault of the carrier the goods did not arrive safe and sound. The evidence on this subject was in defendant’s own possession. It has failed to show that the non-arrival of the goods was due to causes other than its own act, neglect or fault, and, therefore, the judgment was right.
The order should be affirmed, with costs.
Present — Jenks, P. J., Thomas, Rich, Blackmar and Kelly, JJ.
Order of the Appellate Term affirining a judgment of the Municipal Court unanimously affirmed, with costs.