25 N.Y. St. Rep. 856 | City of New York Municipal Court | 1889
The plaintiffs purchased from John S. Townsend & Co. of London, England, through their agents in New York, 1,000 frails of dates. They were to be. thereafter shipped from London. Subsequently John S. Townsend & Co. shipped the dates on board of the steamer Canada, of the defendant’s line. On the arrival of the dates in New York, 99 frails were broken, and the dates representing this number of frails when they were put upon the dock were in such an irregular condition that the plaintiffs would not accept them. They thereupon brought this action for the rion-delivery of the 99 frails. The evidence shows without contradiction that dates representing the 99 frails were tendered to and refused by the plaintiffs, and the question is whether an action in this form for non-delivery can, under these circumstances, be maintained. The defendant was not bound to make personal delivery of the dates to the plaintiffs. Notifying them of the arrival of the vessel, separating their consignment from the rest, putting the goods within their control, and offering them, was a sufficient tender to discharge the owners of the vessel from liability. The action, as before stated, is for the non-delivery of the dates tendered, by reason of which failure to deliver it is alleged that the 99 frails of dates were “wholly lost” to the plaintiffs.. We think the plaintiffs ought to have accepted the delivery tendered, and, if aggrieved, should have sued the defendants for breach of duty, i. e., negligence in the carriage, in which action the loss might have been compensated for without a total abandonment of'the property to the defendant. The defendant did not appropriate the dates to its own use, and was guilty of no wrongful act concerning them, unless it be an act of negligence, and in an action for breach of duty may be shown in defense the existence of any of the tilings which by the terms of the bill of lading exempt it from liability. In .this case, the trial judge ruled out all evidence tending to excuse the condition of the goods and instructed the jury “that if the defendant carried over and tendered to these plaintiffs the thousand frails, including the 99 that are •missing, As is claimed, no matter whether the packages were in good or bad condition, it.would relieve the defendant from liability.” As the fact of carrying over and tendering the whole 1,000 frails (99 in an irregular condition) was established and not disputed, the defendant, on the evidence, and under .this charge, ought to have had a verdict. In addition to the proof of tender .of the 99 frails, application was made on behalf of the plaintiffs to the col.lector of,the customs for an allowance for the damage to these same irregular
