| The Superior Court of New York City | Dec 23, 1848
On fully considering
First. The contract between the parties, was equivalent to a contract to sell and deliver iron to arrive; that is, it was an agreement to deliver Gartsherie pig iron No. 1, if any iron of that description arrived in the ship Siddons on the voyage she was then making. It is well settled that such a contract is conditional, and that if the ship be lost, or if the subject matter of the sale do not arrive in the ship, the contract is at an end. In this case the ship arrived, but there was no consignment of this pig iron No. 1 on board. Therefore as the law is settled, neither of these parties were bound to fulfil the broker’s sale, or entitled to demand its fulfilment.
iSecojid. We are also clearly of the opinion, that the plaintiffs can recover on another ground. Assuming the contract to have been obligatory, the defendants on finding the iron they were receiving was not No. 1, were at liberty to continue to receive it as a fulfilment of their purchase, or they could have repudiated the delivery and brought their action for damages. But they could not do both. They had no right to receive a part of the goods, retain such part, and refuse to receive the residue. They were bound to affirm or to rescind the contract, in toto. It was their duty either to have received the balance of the shipment, or on finding.it was not what they had contracted for, to have returned what had been delivered to them and claim damages for a violation of the agreement.
It would seem that they desired to obtain the iron, and to claim damages also. This they could not do. They were bound to take their position, and either to receive the goods, or to abandon the part performance made, and resort to their claim for damages.
In either view of the case the contract was virtually at an end, and the plaintiffs are entitled to recover the market price of the iron delivered to the defendants, without any deduction.
Judgment accordingly.