VAN BRUNT, P. J.-This action was brought to recover damages for the breach of an alleged contract for the sale of 1,500 barrels of rosin to be delivered free on board the plaintiff's vessel in the port of Savannah.

The contract was entered into by telegrams and correspondence; and the question presented is whether the contract of sale was executed or executory.

The first telegram bearing upon the question was sent by the plaintiff to the defendants at Savannah, and is as follows:

"S. P. Shotter & Co., Savannah. New York, Feb. 19th. Make lowest possible offer good two days 1,500 M. f. o. b. my vessel 'Savannah.' Answer immediately. F. W. Blossom." The defendants answered by telegram as follows:

February 19, 1886. Savannah, Georgia. To F. W. Blossom, 140 Water street, New York, N. Y. Three ten f. o. b., here for reply to-morrow afternoon. S. P. Shotter & Co."

On the same day the defendants wrote to the plaintiff stating as follows:

"Yours of the 17th instant received, also telegram of even date. To the latter we replied, offering 1,500 'M.' rosin, at $3.10, f. o. b., your vessel here, if reply by to-morrow evening. We make the tempting offer with a view to closing out all we have."

On the 20th of February the plaintiff wrote to the defendants that their offer was not accepted. On the 23d the plaintiff telegraphed the defendants: "Your offer 1,500 'M.' accepted; telegraph confirmation immediately."

On the same day the defendants telegraphed to the plaintiff : "We confirm sale to you of 1,500 'M.' at $3.10, f. o. b. Savannah."

Upon the same day the plaintiff wrote to the defendants at Savannah the following letter:

NEW YORK, February 23, 1886. Messrs. S. P. Shotter & Co., Savannah, Ga.:

DEAR SIRS-Your favor of the 19th instant to hand and noted. This morning the 1,500 "M." matter came up again, and, after much trouble, I succeeded in getting the bid for a few hours, and wired you, accepting the lot, etc., my telegram probably reaching you at same time as my letter of Saturday, 20th of February. Later in the day I received your reply confirming the sale, and the matter now is closed by the sale to me of 1,500 bbls. "M." rosin at $3.10, f. o. b., my vessel in Savannah, less 23 per cent. sight draft against documents as shipped. The vessel will report at Savannah within the next thirty to forty days. She may turn up in ten days. I will give you five days' notice. I have no doubt but that she will go direct to the wharf, so you will have very small expense putting on board. An inspector's certificate, such as you give on foreign cargoes, will be necessary. very near getting the order; he was but a cent or so above me. I note your market has declined to $3.00 on "M," $2.20 on Will also need about 200 samples when shipment is

แ "K."

made.

Yours truly,

Paterson came

F. W. BLOSSOM.

On the 25th of February the defendants wrote to the plaintiff a letter, of which the following is a portion:

F. W. Blossom, Esq., New York:

SAVANNAH, Feb. 25, 1886.

DEAR SIR-Your favor of 23rd is at hand and we note what you say as to the time and manner of shipment of the 500 bbls. "M" sold by us on the 23rd inst. at 3.10 per 260 f. o. b. here. As no time was mentioned for shipment it was of course understood to be immediate and not future, so if we have to carry it for the buyer's vessel, we will have to charge the actual expenses, i. e., storage, interest and insurance. Our object in making such a low price at the time was to make a quick turn, and we are much disappointed.

And said letter also contained objections upon the part of defendants to some of the terms made by the plaintiff in his letter of the 23rd.

Thereupon the plaintiff wrote a letter on the 27th of February, in which he claimed that the wording of his telegram indicated that the shipment was not prompt, and that his margin of 21 per cent would not admit of his paying any charges. The letter also contains a direction that they should forward to him the weights, invoices, certificates and shipping receipts to New York, attached to the draft; all the papers without exception to be in his name. The letter also contained a provision that if plaintiff did not hear from defendant by wire on Monday, it would be understood that all the terms stated by him were agreed to.

On the 2d of March the defendant wrote to the plaintiff as follows:

"We did not wire yesterday, as we concluded to accept your stipulations, although we do not think the ground well taken. 'F. o. b. your vessel in Savannah' does mean prompt shipment, providing no future date is mentioned."

On the 4th of March the plaintiff wrote to the defendant as follows:

"Your favor of the 2nd inst. is to hand, and I note that the $1,500 bbls. 'M' order is accepted, and will be held awaiting the arrival of the vessel. This rosin must be every bbl. as originally sampled 'M' and deliver such lots as the local inspectors will be willing to give their certificates for as having originally graded 'M.' If a small fee to them is necessary to obtain this paper, I will pay it."

And on the sixth of March the defendants wrote to the plaintiff. "We will furnish an inspection certificate for the 1,500 barrels 'M' rosin." On the fifth of April the plaintiff telegraphed to the defendants, "Where shall vessel call to receive 1,500 M.' Wire reply immediately." On the next day the defendants telegraphed, "Contract expired by limitation." No vessel arrived at Savannah before the tenth of April, and the forty days from the twentythird of February, the date of the plaintiff's letter, expired on the fourth of April.

Upon this state of facts, rosin having risen, a verdict was di

rected in favor of the plaintiff, and from the judgment thereupon entered, and from order denying motion for a new trial, this appeal is taken.

There are two grounds upon which it is insisted by the appellant that there was no executed contract of sale. The first is that there was no specification or identification of any particular 1,500 barrels of "M" rosin, and the second that it was not the intention of the parties that the title should pass.

It does not seem to us at all necessary to consider separately the first ground, because this appeal may be disposed of upon the second, which includes the first. And it seems to us that this is conclusively established, because there can be no question but that if the defendants tendered to the plaintiff 1,500 "M" rosin which they had bought the day after the contract had been made, it would have been a good tender. If this is true, then it could not have been the intention of the parties that there should be a present passing of the title at the time the contract was entered into.

It is said that this conclusion is at variance with the language used by the defendants in their letter of February 19, in which they say "we make the tempting offer with the view of closing out all we have." But this was no statement that they had 1500 barrels of rosin on hand, such as would fulfill the terms of the contract. They did not offer 1500 barrels to the plaintiff, but the plaintiff telegraphed to know what was the lowest possible offer of sale they would make for a given quantity of rosin, viz., 1500 barrels. It was the plaintiff that fixed the number of barrels that he desired to buy, and not the defendants the number of barrels they desired to sell.

If they had had but 1,000 barrels on hand the letter would have been entirely true, because they might very well, in order to fill the order, have intended to go into the market to procure the remainder. And their letter of the 25th is entirely consistent with the idea that they were not selling what they had on hand, but were going into the market to purchase, because they say in protest against being required to hold the rosin for thirty or forty days awaiting the arrival of the vessel: "Our object in making such a low price at the time was to make a quick turn, and we are disappointed." This language clearly implies the fact that they expected to go into the market to purchase some portion of this rosin, if not the whole, and the evidence shows that they had not on hand any 1500 barrels of rosin.

But the intention of the parties is further shown by their correspondence in respect to the expenses attending the holding of this merchandise. In the letter of the 25th, the defendants say "if we have to carry it for the buyer's vessel we will have to charge the actual expenses, i. e., storage, interest and insurance." In reply to this, the plaintiff says among other things: "My margin of 24 per cent will not admit of my paying any charges." Now if this property was to be the plaintiff's at the time of the entering into this contract of sale, why should the defendants pay insurance, interest and storage?

If this rosin had been destroyed, prior to the expiration of the

forty days and the expiration of the contract, and the defendants had attempted to hold the plaintiff for the purchase price of the rosin, it is clear that they could not have recovered under such a contract as this.

It is a familiar principle that if anything remains to be done by a seller of merchandise to put the same in a deliverable shape so that the purchaser has an option of refusal to accept in case such things are not done, no title passes. And the only exception to this rule is that where goods are sold by weight or measure, the exact quantity may be ascertained in order to fix the price to be paid.

In the case at bar certificates were provided for, and the plaintiff might refuse to accept the rosin if unaccompanied with these certificates, and he himself stated that if the rosin was not so accompanied when tendered for delivery he would not have accepted the same.

Now if it was his property and he had bought it, and the title was his, why would he not take it? He would not take it because the title was never in him, and because by the terms of the contract he had never accepted the property as a compliance with the contract and need not do so unless accompanied by these certificates.

It is argued that even if the contract should be considered as executory the defendant was not relieved from the obligation to deliver upon the ground that before the defendants could forfeit the rights of the plaintiff thereunder, the obligation rested upon them to give notice to plaintiff requiring performance, for some reasonable time, and that no such notice was ever given. And it is urged that the statement in the plaintiff's letter of February 23d that the vessel would report at Savannah within the next thirty or forty days, and might in ten days, was not a condition precedent, but was made not prior but subsequent to the contract, and was a general statement for the information of the defendants. That this is not the case is clearly established by the evidence; the defendants claiming that the telegram meant prompt delivery and that they were striving to obtain a contract for prompt delivery, and finally they receded from their proposition and accepted the condition that the vessel would report at Savannah within the next thirty or forty days, they to be at the expense of storage, etc., until the vessel had reported. It was clearly the intention of the parties in view of these explanations that this vessel should be there within the period named, and that was one of the conditions of the contract. And the defendants owed no obligation to the plaintiff except to wait for the expiration of the time, and after the time expired in which the plaintiff agreed to have his vessel there, they were absolved from completion of the

contract.

The claim that by the letter of the 4th of March in which the plaintiff stated "I note that the 1,500 bbls. 'M' will be held awaiting the arrival of the vessel," in no way militates against this theory. He did not refer to the indefinite arrival of the vessel, but to its arrival within the forty days, which was the utmost N. Y. STATE REP., VOL. XXXVI.

83

limit for which the plaintiff had asked the defendants to hold the rosin for the purpose of delivery.

It is urged that even if it should be held that time was of the essence of the contract, the forty days should be computed from the time the stipulations were all agreed to, and as the defendants wrote on the 2d of March, "we have concluded to accept your stipulations," that the time was to run from the 2d of March. This is not the contract. The plaintiff did not state that the vessel would report at Savannah within thirty or forty days from the 2d of March, but stated that it would report within thirty or forty days from the 23d of February, because in his letter of that date he says, "the vessel will report at Savannah within the next thirty or forty days." How it is possible to import the 2d of March into such a condition it is difficult to imagine. It is probably true that the contract was not finally terminated until the 2d of March, but part and parcel of the stipulations was the agreement upon the part of the plaintiff to have his vessel there within forty days from the 23d of February.

We think, therefore, that upon the undisputed evidence the contract was an executory contract, and that the time for its completion on the part of the plaintiff having arrived, and he not having performed his part of the contract, the defendants were absolved from performing theirs, and no right of recovery existed in the plaintiff by reason of the non-delivery of this rosin.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

BRADY and DANIELS, JJ., concur.

THE NEW YORK, LAKE ERIE & WESTERN R. R. Co., Resp't, v. THE ATLANTIC REFINING Co., App'lt.

(Supreme Court, General Term, First Department, Filed February 11, 1891.) NEGLIGENCE-RAILROADS-CONTRIBUTORY.

In an action for negligence it appeared that plaintiff had the day before brought to a station and left on a switch track a car load of lumber for defendants, which the latter partially unloaded and left the remainder, as alleged, in a dangerous condition; that in the night a high wind arose which blew the lumber on the tracks and caused the accident. The court excluded all consideration of the question of plaintiff's negligence. It was show nthat building was going on at the station, and large quantities of materia! were brought there; that there was but one switch track which sometimes held a number of cars; that on backing cars upon the switch those already upon it were often severely shaken; that there was no track walker nor any person to observe the condition of cars on the switch track. Held, that under the circumstances these were elements of contributory negligence upon plaintiff's part, and it was error to withdraw that question from the jury.

APPEAL from a judgment in favor of the plaintiff rendered upon the verdict of a jury at circuit.

John Brooks Leavitt, for app'lt; Charles Steele, for resp't.

BARRETT, J.-This action was brought to recover damages for injuries done to the plaintiff's locomotive and cars at a place called Dyke's switch. The locomotive and cars in question were so damaged by running upon certain lumber belonging to the de