37 Misc. 486 | N.Y. App. Term. | 1902
This action is brought upon an alleged breach of a written contract for the sale and delivery of raw silks. A verdict was directed for the defendants by the trial judge and, from the affirmance of the judgment entered, the plaintiffs appeal.
The facts are substantially conceded. The plaintiffs are silk merchants at Lyons, Erance, having New York agents through whom the contract of sale was made in the city of New York with the defendants, who are silk manufacturers, having an office in New York city, with factories in Virginia. The contract of sale is in the nature of a memorandum, which fixes the price, terms of credit, character and quantities of the goods ordered and with respect to the delivery, contains the following phrase: “ Deliverable, April and May 1900.” In the performance of the contract a number of deliveries of silk had been made and the practice, in all of these cases, was for the New York agents of the plaintiffs to notify the defendants by letter of the arrival or expected arrival of the lot of goods and to ask for shipping instructions. In all the instances, excepting the one out of which this case arises, the answer of the defendants was, to ship to ono of their Virginia houses, via the Old Dominion Line, and the goods were invariably delivered by the plaintiffs’ agents as directed by the defendants to the Old Dominion docks in New York, the cartage charges being paid by the plaintiffs. The final shipment of silk under the contract consisted of six bales of the value of upwards of '$6,000, and on the evening of May 29, 1900, the plaintiffs’ New York agents mailed a letter to the defendants stating that the six bales were on the “ S. S. Trave, which is due to-day or tomorrow,” and that they “ should be pleased to receive shipping instructions for the same.” May thirtieth was Memorial Day. The defendants testified that they received the letter of May twenty-ninth on the thirty-first, by mail, and on the same day (thirty-first) replied to the letter of the plaintiffs’ agents of the twenty-ninth by saying “ that we want the six bales of Italian silk, referred to, delivered to us at 68 Greene St. to-day, May 31st.”
This letter was received by the plaintiffs’ agents “ by or before noon” of the thirty-first, and at about three p. m. of the thirty-first of May, the plaintiffs’ agents delivered to a firm of for
The court will take judicial notice of the fact that a letter, mailed in the city of New York at six fifty p. m. on May twenty-ninth, would be delivered in the usual course of the mails on the morning of May thirtieth. Livingston v. Spero, 18 Misc. Rep. 243. Defendants not only did not attend at their place of business on May thirtieth, but they made no provisions for obtaining their mail on that day.
Memorial Day is not a dies non. It is a legal holiday, but not placed on the same basis as Sunday by statute. “ In the present state of the statutes,” says the Court of Appeals, fin the recent decision in the case of Page v. Shainwald, 169 N. Y. 246, “ we are of the opinion that upon holidays other than Sunday, all transactions may be carried on as on any other day,” with the exception that negotiable instruments maturing on a holiday become payable on the day following and that no business is to be transacted in public offices of the State and counties. To the same effect, see Walton v. Stafford, 162 N. Y. 559.
Since the argument of this appeal the Public Holiday Law has been amended (chap. 39, Laws 1902, passed Feb. 20, 1902).
It is therefore apparent that defendants delayed twenty-four hours in acknowledging receipt of the letter of May twenty-ninth • and in giving instructions to plaintiffs’ agents as to where the goods were to be delivered.
The plaintiffs were required to exercise diligence in delivering-the goods after defendants’ instructions; there is no testimony that the plaintiffs failed to act with reasonable diligence after notification, and we are, therefore, of opinion that the plaintiffs duly performed their contract, and that the judgment must, therefore, be-reversed.
Freedman, P. J., and Giegerich, J., concur.
Judgment reversed, and new trial ordered, with costs to appellants to abide event.