43 Misc. 639 | N.Y. App. Term. | 1904
This action arises out of the alleged failure of the plaintiffs to deliver six bales of silk to the defendants within the time specified in the contract between the parties. The plaintiffs are residents of France. . The defendants are manufacturers, having a place of business in the city of New York and factories at Petersburg, Va., Williamsport, Pa., and Elmira, N. Y. The plaintiffs were represented in New York by the firm of Jar dine, Matheson & Co., as their agents. The contract, which was in writing, was made in the city of New York and provided for. the sale of a quantity of Italian silk, “ deliverable April & May 1900.” The contract was entirely silent as to the place and method of delivery. The silk came to this country packed in bales and all of it, except so much §s was comprised in the six bales in controversy, duly arrived and was delivered and accepted. The shipments, prior to this one, had been made in small lots,. and the practice had grown up between the parties that, when the plaintiffs’ agents received the shipping documents, they notified the defendants of their receipt and asked for shipping instructions “ so that we can deliver on arrival,” and in each previous instance the defendants had responded by directing that the bales be shipped to one of the defendants’ factories by the Old Dominion steamship line. The plaintiffs’ agents would thereupon at their own expense and by truckmen of their own selection deliver the bales to the steamship company in the city of New York. As all of these deliveries were well within the time fixed
Ereedman, P. J., and Truax, J., concur.
Judgment reversed and new trial granted, with costs to appellants to abide event.