First Department, July, 1921.

App. Div. 781]

except the warehouse receipts for a few bales at a time upon the dates when plaintiff testified he received the goods. It appeared on the trial that someone in the defendant's office had, subsequently to the receipt of the goods, placed plaintiff's name in lead pencil across the face of certain of these bills of lading, evidently for identification purposes.

David Schratter, an officer of the defendant, testified that the plaintiff had requested the defendant to store the goods in the defendant's name and to handle them as the defendant chose. The plaintiff denies this and says that he was constantly demanding the delivery of the goods and that he told defendant's representatives that he would hold them responsible for delay in delivery. From the facts thus disclosed it appears that the parties intended that the merchandise was to be delivered to the plaintiff in the city of New York. The court, however, has held, as a matter of law, that the place of delivery was in Japan, and refused to permit the plaintiff to prove the market value of the merchandise in New York at the time of the alleged breach.

The contract in question, as above set forth, contained the expression," C. I. F. New York." It was admitted upon the trial that such letters meant, "cost plus insurance and freight to New York." The term appears in the clause of the contract relating to price, and has, therefore, very little bearing upon the question of the place of delivery. (Miller & Sons Co. v. Sergeant Co., 191 App. Div. 814; Maddaloni Olive Oil Co., Inc., v. Aquino, Id. 51; Mee v. Mc Nider, 109 N. Y. 500; Seaver v. Lindsay Light Co., 111 Misc. Rep. 553.) It is apparent that the term used had a distinct and clear meaning to the parties who used it, and that as used in the contract in question it related purely to the price to be paid. The burden rested upon the purchaser to pay the cost price of the goods in Japan plus insurance and freight to New York. The duty rested, of course, upon the seller to deliver the goods somewhere to the buyer. Had the parties considered that the contract was a strict c. i. f. contract the seller would have insured the goods in the name of the buyer and would have caused the bills of lading to have been made out in his name and forwarded to him, and would have taken the necessary

First Department, July, 1921.

[Vol. 197

steps to free the seller from responsibility respecting further delay and delivery.

The respondent seems to rely upon the decision in Smith Co., Ltd., v. Moscahlades (193 App. Div. 126) in support of its contention that the place of delivery of the merchandise in question under the contract was Japan. The plaintiff in the last-mentioned case was a Newfoundland corporation, having its office at St. Johns. It had no branch office and transacted no business here. The defendants were engaged in business within the city of New York as importers and exporters of fish. The contract in question used the term, " c. i. f." This court held in respect to the aforesaid contract, as follows:

"This consummated the contract, which became what is known as a 'c. i. f.' contract, which is a well-known form of shipping contract and means that the purchaser pays a fixed price for which the seller furnishes the goods and pays the freight and insurance to the point of delivery, and that all risks, while the goods are in transit, are for the account of the buyer. Under such contracts the seller fulfills all of his obligations by putting the cargo on board and forwarding to the purchaser a bill of lading and a policy of insurance of the kind then current and customarily issued in the trade, and if the goods had not been paid for in advance it was customary to present a draft for the purchase price, accompanied by the bill of lading and policy of insurance and a credit slip for the insurance and freight if not actually paid for by the shipper, which documents were to be delivered to the purchaser on his paying the draft, and the insurance is for the protection of the purchaser, who assumes all risks after the goods have been placed on board; and this constitutes a delivery by the seller under such a contract and title thereupon passes to the buyer even though it be stated in the contract that delivery was to be made at the point of destination."

In the case at bar both the parties resided in the city of New York, and both parties had an office there. The contract did not mention any place in Japan from which the goods were to be shipped, and the seller did not consign the goods to the buyer, but consigned them to itself in the city of New York, insured the goods in the seller's own name, and placed the goods in a warehouse in Brooklyn and took warehouse

App. Div. 781]

First Department, July, 1921.

receipts in the name of the seller. The term " C. I. F. New York" appears only in that portion of the contract relating to the price. It follows that, under the decision of this court in the case of Miller & Sons Co. v. Sergeant Co. (supra) the place of delivery would be at the office or place of business of the seller in the city of New York. Moreover, the seller has so interpreted the contract. Although the plaintiff paid for the goods in advance, the seller never attempted to make any deliveries at any place, except in the city of New York by the delivery of warehouse receipts. It is clearly shown that it was the intention of the parties that the city of New York should be the place where the goods were to be delivered. While the case of Miller & Sons Co. v. Sergeant Co. (supra) involved the construction of a contract which used the term "f. o. b.," the same reasoning applies to the use of the term c. i. f." It was, of course, incumbent upon the purchaser to call upon the defendant to deliver the goods to him at the defendant's place of business or wherever the goods were in Brooklyn. This the plaintiff says he did, and that is a question of fact which should have been submitted to the jury. The place of delivery being in the city of New York, the court should have submitted to the jury the disputed facts, and should have permitted the plaintiff to show the market value of the merchandise in the city of New York at the time of the alleged breach.

It is claimed by the appellant, and seems to have been practically admitted upon the trial, that it requires on the average about two months for goods to reach New York city from Japan, unless the goods are shipped from a Western seaport by express. The defendant admitted that the plaintiff had paid approximately $350 for shipment by silk train " (overland express), which fact quite clearly shows that the plaintiff was anxious to receive the goods and to obtain them as early as possible. Such fact also should be considered in determining whether or not the goods were delivered within a reasonable time. The use of the words, Shipment from Japan June, July, August in about equal shipments," as used in the contract, were clearly inserted to enable the parties, who knew the custom and the length of time it usually takes for a shipment to reach New York, to define

First Department, July, 1921.

[Vol. 197 the period within which the goods would in all probability be delivered to the plaintiff. The plaintiff testified, as above noted, that he told Schratter that he must have the goods as soon as possible, and stated: "I want the merchandise during August, September and October to deliver in New York as per my contract, and I will hold you responsible if I don't get it in that time." It is quite apparent that when this conversation took place the plaintiff, at least, expected to receive the goods shipped from Japan in June during the month of August; those shipped in July during the month of September, and those shipped in August during the month of October. If the plaintiff was ready to accept the deliveries and the goods were not delivered within a reasonable time, the plaintiff was entitled to succeed upon proof of his damages.

The plaintiff's exceptions are sustained and plaintiff's motion for a new trial granted, with costs to the plaintiff to abide the event.

CLARKE, P. J., LAUGHLIN, SMITH and PAGE, JJ., concur.

Exceptions sustained and motion for new trial granted, with costs to plaintiff to abide event. Settle order on notice.

EAGLE MANUFACTURING COMPANY, Respondent, v. ARKELL & DOUGLAS, INC., Appellant.

First Department, July 1, 1921.

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Corporations foreign corporation when foreign corporation not doing business in this State within General Corporation Law, § 15 sales offering goods for resale amounts to acceptance receipt and retention of bill of lading for goods shipped f. o. b. point of shipment constitutes acceptance shipments not required to be made in particular order.

The plaintiff, a foreign corporation, was not doing business in this State, within the meaning of section 15 of the General Corporation Law, so as to prevent it from maintaining an action to recover for goods sold and

App. Div. 788]

First Department, July, 1921.

delivered because it had not complied with the provisions of that section, where it appeared that the order for the goods in question was taken by a firm of commission merchants in the city of New York who represented a number of foreign corporations including the plaintiff; that the plaintiff had nothing whatever to do with the running of the New York office or its expenses and contributed nothing towards its maintenance; that the only goods of the plaintiff in the possession of the commission merchant were samples which had a nominal value only; that the order taken by the commission merchant was subject to the approval of the plaintiff and that the plaintiff never had any stock of merchandise in this State nor any bank account, nor any office, nor did it keep any books within the State.

As to the defense interposed by the defendant that the plaintiff failed to ship the goods in the manner agreed upon in that the three orders in question were not shipped in the order required by the defendant, it appeared that the time for shipment was extended by the defendant and that thereafter the defendant authorized the plaintiff to ship the goods as soon as possible, and that, as to the first shipment, the defendant offered the goods subsequently for resale. Held, that the defendant, by offering the goods for resale, exercised dominion over them and acceptance must be deemed to follow as a matter of law.

As to the remaining shipments the invoices and bills of lading for them were forwarded at the same time that the goods were shipped and the documents were received and retained by the defendant, and furthermore delivery was established by the additional circumstance that the goods were sold f. o. b. the point of shipment which became the place of delivery, and by the further fact that the goods were shipped on the express authorization of the defendant after it was notified that they were ready for shipment.

The defendant's authorization of delivery does not warrant the conclusion that the shipments were to be made in the order of time in which the contracts of sale were made.

DOWLING and PAGE, JJ., dissent in part, with memorandum.

APPEAL by the defendant, Arkell & Douglas, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of March, 1921, upon the verdict of a jury rendered by direction of the court.

Emil Weitzner of counsel [David Steckler with him on the brief; Steckler & Weitzner, attorneys], for the appellant.

Ludwig M. Wilson, attorney for the respondent.