#### James C. Tinsley *et al.,*Resp’ts, *v.*Paul Weidinger, App’lt.1

*(New York Common Pleas, General Term,*

*Filed February 3, 1890.)*

Sale—Bb.ea.ch of contract to deliver.

Defendant sold to plaintiffs a certain quantity of kainit to be delivered “ex vessel in New York harbor” within a certain time, payment to be made on delivery. On arrival at New York it was found that a large quantity had been pumped overboard and the rest damaged, and plaintiffs-refused to accept. *Held,*that as the contract provided for a delivery “ex vessel in New York harbor,” it was an integral part thereof that the goods should be delivered, not in Germany, but in New York, and as defendant failed to make such delivery of the stipulated quantity and quality, he was liable in damages.

Appeal from judgment of the general- term of the city court of New York, affirming judgment in favor of plaintiffs, entered on verdict.

Action to recover damages for breach of a contract of sale of 502 tons of kainit, and the cost of a schooner hired pursuant to the terms of such contract.

*141
      *Edward W. S. Johnston,*for app’lt; *Michael H. Cardozo,*for resp’ts.

Affirming 26 N. Y. State Rep., 938.

Larremore, Ch. J.

This case is reported on the appeal to the general term of the city court, 7 N. Y., Supplement, 260; 26 N. Y. State Rep., 938, and a full statement of facts is given. It will therefore be unnecessary to repeat such statement here. I have endeavored to give to the argument of the learned counsel for appellant the careful consideration it merits, by reason of its elaborate collation of authorities, and its lucid exposition of them. His brief would be convincing and conclusive if the contract m question did not contain the words “ delivered ex vessel m New York harbor.” As it is, he is arguing another question than the real one here involved. In *Heller*v. *Allentown Mfg. Co.,*39 Hun, 547, the nearest corresponding provision was that the merchandise was “to be shipped in bulk from German ports to the port of New York.” In that case, as in a large number of similar cases cited by appellant, the court properly held that it was the intent of the parties that the sale should be consummated, and the title pass, upon delivery of the goods on board the ship in the German port; and that consequently the vendee took all subsequent risks. In the case at bar, on the other hand, the contract provides that the kainit shall be “ delivered ex vessel in New York harbor.” I see no other possible way of construing this contract than to hold that it was made an integral part thereof that the merchandise should be delivered, not in Germany, but at New York. As defendant confessedly failed to make such delivery of goods of the stipulated quantity and quality at the port of New York, he became liable in damages as sued for in the first cause of action.

In *Heller*v. *Allentown Mfg Co., supra,*the contract also contains a reference to “ delivery of goods ex vessel at New York." But there this phrase evidently means transfer of actual possession, as distinguished from legal delivery, relating to the time of payment; just as m the contract in the case at bar, it is stipulated, in addition to the provision that the delivery to the vendee shall occur in New York, that the terms are “cash on delivery at New York.” This clause deferring payment in both cases does not affect the question of intent as to delivery in the legal sense of the term, which may be constructive as well as actual. In the *Heller*case the word “ delivery ” is used in two different significations, a legal sense and a colloquial sense. In one place it stands for assumption of legal control; in the other for the beginning of physical possession. An inspection of the whole instrument in the *Heller*case shows the intent to deliver, in the legal sense of the word, at the port in Germany. A similar inspection of the entire contract in the case at bar discloses an intention that delivery, in the legal sense, and in the popular sense of transfer of physicial possession, should be simultaneous and should both take place at the port of New York. This obvious meaning of the language is further borne out by the clause that “buyers shall furnish vessel at New York to carry the goods to Richmond.” Evidently the intentioh was that the vendor was to deliver the goods in New *142York, and that there, although they had not arrived at their ultimate destination, the vendee was to accept them and assume all further charge and risk.

The evidence as to the damage sustained under the second cause of action is not very full. It is not shown, for instance, that plaintiff could not have used the schooner he chartered to ship the goods he bought to take the place of those contracted for with defendant; and that therefore the amount expended on account of such schooner was so much dead loss. But the actual expenditures were proved, and as no point was made at the trial, or raised on this appeal, as to the lack of proof on this particular count, I will hold the evidence sufficient to support the direction of the court.

The judgment should be affirmed, with costs.

Bookstayer and Bischoff, JJ., concur. •