App. Div. 184] Second Department, May, 1921. The appellant keeps a store at the corner of Hamilton and Atlantic avenues, Richmond Hill, borough of Queens. The plaintiff went into the store on the evening of July 11, 1917. She saw the manager of the store, Meyer Yaverbaum, who is a brother of the defendant. At her request the manager showed her some small handbags and then stooped behind the counter to get others. Then, according to the plaintiff's story, he became excited and said there was a bag missing, forbade her to leave the store, threatened to search her and sent for the police. The evidence justified a finding that the plaintiff was put in duress and kept in the store; that she was humiliated and her feelings hurt by the implication that she had stolen the bag. * The serious question in the case is as to the responsibility of the defendant for what his manager did. The court charged the jury that if the defendant's brother (the manager) was in charge of the store, representing him, then the defendant would be responsible in the law for the action of his brother. It is not claimed that there was any evidence in the case justifying the charge that the plaintiff was guilty of larceny. The action of the defendant's manager was based solely upon suspicion. In Mali v. Lord (39 N. Y. 381) the Court of Appeals, per GROVER, J., said (at p. 384): The inquiry is, whether a merchant, by employing a clerk to sell goods for him in his absence, or a superintendent to take the general charge and management of his business at a particular store, thereby confers authority upon such clerk or superintendent to arrest, detain and search any one suspected of having stolen, and secreted about his person, any of the goods kept in such store. If he does, he is responsible for such acts of the clerk or superintendent. If not, then such acts are not within the scope of the authority delegated to the superintendent, and the employer is not responsible therefor, for the reason that, while in their performance, the servant is not engaged in the business of the master, any more than in committing an assault upon, or slandering, a customer. In examining this question it must be assumed that, by the employment, the master confers upon the servant the right to do all necessary and proper acts for the protection and preser Second Department, May, 1921. [Vol. 197 vation of his property, to protect it against thieves and marauders; and that the servant owes the duty so to protect it to his employer. But this does not include the power in question. It cannot be presumed that a master, by intrusting his servant with his property and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself if present. The master would not, if present, be justified in arresting, detaining and searching a person upon suspicion, however strong, of having stolen his goods, and secreted them upon his person. The authority of the defendants to the superintendent could not, therefore, be implied from his employment. The act was not done in the business of the defendants, and they were not, as masters, responsible therefor." This case seems to me to be controlling upon this appeal. The facts of the Mali case are almost identical with the facts in the case at bar. My attention has been called to no case in which that case has been overruled or its authority lessened in any way. It has been cited a number of times, but usually for the purpose of showing how the facts in that case differ from the facts of the case then under consideration, the principle of law enunciated in it not being criticized. The respondent seeks to justify the verdict by claiming that this case is distinguishable because the defendant was informed of the situation and took no action in relation thereto. The evidence, however, does not bear out this contention. The evidence shows merely that some one telephoned or was directed to telephone the defendant that there was a woman in the store who would not leave. This gave the defendant no information or notice of the actual situation. The respondent also claims that the instant case is controlled by Craven v. Bloomingdale (54 App. Div. 266) and Lynch v. Metropolitan Elevated Railway Co. (90 N. Y. 77). If I am correct in my conclusion that the facts in the Mali Case (supra) are closely analogous to this case, then the Craven Case (supra) is not an authority here because in the opinion in the Craven case it is pointed out that the facts in that case differ from the facts in the Mali case. In the Lynch Case (supra) it was held that the jury was justified in finding that the servant of the defendant acted with the App. Div. 187]. First Department, May, 1921. express authority of the defendant. I, therefore, cannot escape the conclusion that it is the duty of this court to reverse the judgment and to dismiss the complaint, with costs. BLACKMAR, P. J., MILLS and RICH, JJ., concur; KELLY, J., dissents. Judgment and order reversed and complaint dismissed, with costs. THE STANDARD CASING COMPANY, INC., Respondent, v. CALIFORNIA CASING COMPANY, INCORPORATED, Appellant. Sales First Department, May 20, 1921. contract for sale f. o. b. point of shipment to be paid for by sight draft after inspection is contract for goods to be delivered at point of destination - measure of damages for failure to deliver is difference in market price at point of destination and contract price plus freight — delivery of possession not made when goods delivered to carrier objection to computation of damages by court cannot be taken on appeal where not raised below. A contract for the sale of goods to be shipped by the seller in San Francisco, f. o. b. to the buyer in New York city to be paid for by sight draft with bill of lading attached, with the privilege in the buyer of examining the goods on their arrival is a contract for goods to be delivered in New York city. The measure of damages for the failure of the seller to deliver the goods according to the contract is the difference between the market price in New York city at the time when delivery should have been made and the contract price plus the freight charge from San Francisco to New York. Delivery of possession of the goods to the seller under the contract was not made when the goods were placed on the cars f. o. b. San Francisco. The fact that the court in computing the amount of damages for the purpose of directing a verdict failed to deduct the charge for freight, cannot be raised upon appeal where no objection was made or exception taken at the trial. APPEAL by the defendant, California Casing Company, Incorporated, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county First Department, May, 1921. [Vol. 197 of New York on the 13th day of December, 1920, upon the verdict of a jury rendered by direction of the court. McLaughlin, Russell & Sprague, attorneys [Frederick C. McLaughlin of counsel], for the appellant. Kelley & Connelly, attorneys [M. E. Kelley of counsel], the respondent. DOWLING, J.: for This action is brought to recover the sum of $4,800 with interest, damages alleged in the complaint to have been sustained by plaintiff by reason of the breach of a contract between plaintiff and defendant, made on or about December 18, 1917, whereby defendant sold to plaintiff, to be delivered at its place of business in the borough of Manhattan, city of New York, twenty casks of salted pig guts, each cask to contain about 3,000 bundles of said guts, to be shipped by the defendant in San Francisco, Cal., f. o. b. to plaintiff in New York city, not later than March 15, 1918, at the agreed price of eighteen cents per bundle, to be paid by sight draft with the bill of lading for said goods attached, with the privilege to plaintiff of examining said goods on their arrival in New York, the plaintiff to pay therefor upon the delivery of the goods to it in New York. It is further alleged in the complaint that the agreement of the parties was duly confirmed by the defendant in writing and that the plaintiff has at all times been ready, able and willing to receive, accept and pay for the said goods upon their arrival in New York city, and has requested that defendant ship the same, and has performed all the conditions of the said agreement on its part to be performed; but that defendant has neglected and refused to ship said goods or any part thereof, and has repudiated and refuses to perform the contract, although performance has been duly demanded by plaintiff. Upon the trial plaintiff produced a letter of the defendant dated December 18, 1917, directed to the plaintiff at its office in the city of New York, wherein defendant stated that it had sold to the plaintiff the casks of merchandise in question to be shipped January, February and not later than March 15, 1918, at the price of eighteen cents United States gold coin per bundle, f. o. b. San Francisco. App. Div. 187] First Department, May, 1921. The provision as to payment was "Sight Draft, Bill of Lading attached with the privilege of examining the goods on arrival.' This contract tendered by defendant was accepted in writing by plaintiff. Upon the trial plaintiff endeavored to prove the conversations between the representatives of the parties preceding the delivery of the written agreement, claiming that there had been an oral contract of which the written agreement was merely a memorandum. The question put to the witness Rado sought to elicit the arrangement made in the antecedent conversation as to the delivery of the goods, but objection was made to the receipt of this evidence by defendant's counsel upon the ground that the question called for parol evidence tending to vary the terms of the written instrument, and when the court said that from the written exhibits he inferred that the destination of the goods was New York city, defendant's counsel said, "We are not disputing that." The breach of this contract by the defendant is not disputed. The question which is presented for consideration upon this appeal is whether it was error to permit proof of the market value of these goods in the New York market at the time when they should have arrived under the contract, which was the testimony offered by plaintiff, and whether it was also error to refuse to receive the testimony offered by defendant as to the market value of these goods in the San Francisco market. We have under consideration a contract which, under the concession made by the defendant upon the trial, called for the delivery of the goods in question in the city of New York, where payment therefor was to be made upon the presentation to plaintiff of a sight draft with bill of lading attached, but only after plaintiff had exercised its privilege of examining the goods on arrival. This was, therefore, a contract for goods to be delivered in New York city and that being the place where plaintiff was entitled to receive them, the value of the contract to it is to be fixed by the market price in New York of the goods when they were deliverable under the contract; and upon the breach of said contract by defendant by its total failure to deliver any of the goods in question, the damage sustained by the plaintiff was the difference between the purchase price of the goods, as |