Tinsley v. Weidinger

This was not a sale of goods “to arrive,” within the proper meaning of that term. The goods were not purchased to be shipped from Germany under the direction or at the risk of the purchasers; nor were the goods purchased while in transit on the ocean. By the contract, the defendant sold 500 tons of kainit, to be delivered from a vessel in Yew York harbor, and the plaintiffs agreed to pay for it on such delivery. In this respect the case differs from Heller v. Manufacturing Co., 39 Hun, 547. The contract here was an absolute present sale, and, for failure to deliver, the defendant is liable. The fact that part of the kainit was pumped overboard, and the balance was injured, while at sea, simply proves that the defendant, without any fault on the part of the plaintiffs, was unable to perform his part of the contract in regard to delivery in Yew York harbor. The plaintiffs had no interest in the shipment of the goods, nor the method of shipment. These matters did not concern them. The.contract expressly provided, in unmistakable language capable of no other meaning, that the kainit should be delivered by the defendant from a vessel in Yew York harbor, and that the terms of payment were cash on such delivery at Yew York. All the risks in regard to performance devolved upon the defendant, and could not be cast upon the plaintiffs, who assumed the mere risk of being able to pay for the property when tendered to them in Yew York, and then only upon tender of the proper quality and quantity of kainit. In order to make a tender to the *262plaintiffs in New York, it was necessary for the defendant to have the property present, so that this duty rested on him. He failed to have the property here, and was consequently in default, for the consequences of which he is answerable; for the causes which led to the failure are not within any exception allowed by the contract as ground for excuse. By this construction of the contract, the legal propositions involved are simplified, and freed from the technicalities which appear in many of the reported cases. In short, the case resolves itself into the ordinary one of bread) of contract to deliver; and this is what we think it is. There was no request to go to the jury, and no dispute as to the amount of the damages sustained. It follows that the judgment appealed from must be affirmed, with costs.