Opinion
Argued May 31, 1875
Decided June 8, 1875
A.J. Vanderpoel for the appellant.
Roger H. Lyon for the respondent.
Upon the evidence the referee might have found that the contract was for the delivery of the castings on board the steamer City of Bridgeport consigned to the defendant, and the payment of freight thereon to Peck Slip, New York. Under such a contract the delivery would have been complete, and the property would have passed, by the delivery of the goods at the place of shipment, to the carrier selected by the defendant, and the payment of the charges to the point of destination. ( Krulder v. Ellison, 47 N.Y., 36, and cases cited by PECKHAM, J.) The referee has found the contract more favorable to the defendant. By the contract as found, the goods were at the risk of the plaintiffs while in transit, and were to be delivered on board of the steamer named, and by which they were to be shipped at Peck Slip, New York city, free of charge. The carrier under this arrangement held the goods at the risk of the plaintiff until the vessel and goods reached the place of delivery. He then became the agent of and held the goods for the defendant, the consignee. The plaintiff did upon the completion of the voyage, and the arrival of the vessel, deliver the goods on board the steamer at Peck Slip for the defendant. They were at the place and in the possession of the persons designated by the contract of sale for the defendant. The contract was special and must have effect according to its terms. The defendant had not required any notice from the plaintiff of the arrival of the goods in New York. The defendant requested the plaintiff to notify it of the shipment, and such notice was given. If any other notice was required by, or necessary for the defendant it should have been given by its agent, the carrier having the goods. Had the contract been for the delivery at a particular warehouse, a deposit of the goods at the place appointed would have been a full performance by the seller, and the case is not different merely because the place of delivery, the place at which the plaintiff was requested to leave them for the defendant, chanced to be on the vessel by which they were transported to the place of delivery. No manual change of position of the goods was necessary to complete the delivery. The delivery in truth was complete at Bridgeport subject only to the contingency of the safe arrival of the property on the steamer at Peck Slip, New York. That contingency was fulfilled and the delivery was absolute and perfect. The evidence of the subsequent negotiations with, and declarations of the superintendent of the plaintiff, did not affect the result. No notice was taken by the referee in his report of the new promise and new agreement sought to be proved, and the recovery was upon the original agreement conclusively proved, and which was not controverted, and not upon the new promise or new agreement.
The judgment must be affirmed.
All concur; except ANDREWS, J., not voting; FOLGER, J., concurring in result.
Judgment affirmed.