#### Arthur *et al. v.*Wright *et al.*

*(Supreme Court, General Term, Fifth Department.*

June 20, 1890.)

1. Sale—Delivery.

A shipment of wheat on June 13th is not a compliance with a contract entered into on May 25tb, which calls for the delivery of the wheat at a certain place “ as soon as possible” by lake transportation, though vessels for transportation are difficult to obtain, where the usual time of lake transportation is six days, and but a few hours are required to load the wheat for shipment, and where the sellers knew at the time of making the contract that vessel-room was difficult to obtain, and shipped wheat to third persons between the date of the contract and the date of shipment, some of it being on other contracts made after that in question.

2. Appeal—Review—Harmless Error.

Error in excluding testimony on direct examination of a witness is cured where he states the facts called for on his cross-examination.

Exceptions from circuit court, Erie county.

Action by Charles H. Arthur and others against Alfred P. Wright and others. The complaint was dismissed, and plaintiffs move for a new trial on exceptions, which motion is heard at the general term in the first instance.

Argued before Dwight, P. J., and Macombeb and Coelett, JJ.

*H. C. Day,*for plaintiffs. *Frank, Brundage,*for defendants.

Macombeb, J.

Counsel for the respective parties at the close of the evidence asked the court to withdraw the case from the consideration of the jury and to direct a verdict. The only question, therefore, is whether, upon any reasonable view which may be taken of the facts of the case, the judgment can be sustained. If there be contradictory evidence, or if contrary inferences can be drawn reasonably from the uncontradicted facts, we must assume that the version thereof which leads to an affirmance of the judgment is correct. *Fargo*v. *Milburn,*100 N. Y. 96, 2 N. E. Rep. 278; *Kirtz*v. *Peck,*113 N. Y. 226, 21 N. E. Rep. 130. This action is to recover upon a contract made May 25, 1887, between the plaintiffs, who are dealers in wheat in Duluth, Minn., and the defendants, who are forwarders, and at times purchasers, of wheat at Buffalo, Y. Y. The agreement, which was evidenced by telegrams from the respective parties, and subsequently embodied in a letter *369from the defendants to the plaintiffs, was that the plaintiffs should sell to the defendants 50,000 bushels of No. 1 hard wheat, at 91 cents per bushel, delivered in Buffalo as soon as possible, as stated in the complaint, by lake transportation. The wheat was to be shipped from Duluth to Buffalo by lake. The usual time for transportation of freight between these two ports is six days. It required but a few hours to load into vessels this amount of wheat. Had the same been shipped from Duluth on the 26th of May, 1887, the day after the contract, it would have been delivered in due course of transportation to the defendants on the 1st day of June of that year. But the plaintiffs did not ship any part of the cargo until the 13th of June, and the wheat did not arrive in Buffalo until the 18th day of that month. The defendants refused to receive the cargo, and the same was subsequently sold in the interest of the plaintiffs, and this action is brought to recover the sum of $4,500, the difference between the contract price and the amount realized at such sale.

. The contract, as stated in the complaint, was that this wheat should be delivered in Buffalo harbor as soon as possible. There was no time mentioned for i.ts delivery in the correspondence constituting the contract, and hence the plaintiffs had a reasonable time in which to fulfill their part of the agreement. *Wright*v. *Bank,*110 N. Y. 237, 18 N. E. Rep. 79; *Colt*v. *Owens,*90 N. Y. 368. By the evidence of one of the plaintiffs, it is established without contradiction that vessels for the transportation of freight from Duluth eastward were at this time in great demand, and were consequently difficult to obtain. It was also shown by the same witness that the plaintiffs actually procured vessels for the transportation of like freight between these two ports, in pursuance of contracts made prior to the 25th day of May, but which were executed after the agreement with the defendants. Between the 25th day of May and the 13th day of June, inclusive, the plaintiffs actually shipped from Duluth 250,000 bushels of wheat, of which shipments 200,000 bushels were to fill contracts made prior to May 25th, with parties other than the defendants. Such shipments were made May 26th, May 27th, June 2d, June 3d, and June 11th. When the contract was made with these defendants, the plaintiffs knew that vessel-room upon the upper lakes was difficult to obtain. Such delay of the plaintiffs in delivering the wheat at Buffalo was, under these facts, inexcusable. The delivery was not made within a reasonable time. It was the duty of the plaintiffs under this contract to obtain the wheat and ship the same from Duluth with all reasonable dispatch, and to deliver the same in Buffalo in the usual course of lake navigation. So long as they omitted either to obtain transportation or to load the vessel, they failed of their duty to the defendants under the contract. The known difficulty of procuring transportation could furnish no excuse for delay. The defendants were entitled to an exact performance by the plaintiffs of their contract to ship promptly, and to deliver within a reasonable time. Failing in this, they have no ground of complaint against the defendants for refusal to accept the wheat on the 18th day of June. *Tobias*v. *Lissberger,*105 N. Y. 404, 12 N. E. Rep. 13.

The exceptions taken to the exclusion of the testimony of the witness Arthur upon his direct examination, touching the contracts which the plaintiffs had on hand on the 25th day of May, 1887, for the delivery of wheat, is not available On this appeal, for the reason that the witness on cross-examinatian gave all the facts called for on his direct examination. The motion of the plaintiffs for a new trial should be denied, and judgment should be ordered for the defendants upon the order of the circuit dismissing the complaint of the plaintiffs.

Dwight, P. J., concurs. Corlett, J., not voting.