Opinion
Argued December 5, 1922
Decided December 12, 1922
James Byrne and Joseph Joffe for appellant. Thomas Fleming Walsh, Francis X. Carmody, George A. McLaughlin and Chester B. Carleton for respondent.
Plaintiff, appellant, hereinafter referred to as the seller, is a California corporation doing business in San Francisco. Defendant, respondent, hereinafter referred to as the buyer, is a New York corporation doing business in the city of New York. The action is for the purchase price of two carloads of dried prunes according to the terms of written contracts executed in May and June, 1920. The contracts are of a standard form known as "California Dried Fruit Contract (Rail Shipment) adopted by National Wholesale Grocers' Association of the United States and Dried Fruit Association of California." Blanks for destination, routing and consignee are left unfilled. Time of shipment is "October-November Sellers Option." Quantity, size, grade and variety, bulk basis and price per pound are specified. Terms are stated to be "F.O.B. Pacific Coast rail shipping point." Terms of payment are fully specified.
Provisions are made in general terms for routing. "Seller shall, where possible, recognize routing named by Buyer, but Seller has option of selecting the initial line * * *. Change in routing from rail to water shipment (if requested) is subject to Seller's confirmation." It is provided that "notwithstanding shipped to Seller's orders, goods are at risk of Buyer from and after delivery to carrier." Many details not applicable to the present controversy are also provided for.
The seller, in November, 1920, placed the goods upon the cars in California for shipment to New York and received bills of lading therefor drawn to seller or order. The bills of lading indorsed in blank were forwarded to a bank in New York with drafts for the price attached thereto and were presented to the buyer who refused to accept them for the reason that the goods were forwarded without its authority. When the carrier notified buyer of the arrival of the goods at destination, it refused to accept them for the same reason.
One of the main points in difference was over the authority of buyer's agent, F.A. Morse, to execute the contract on its behalf. This was resolved in plaintiff's favor by the verdict of the jury.
At the trial plaintiff obtained a verdict for $19,072.20. The Appellate Division reversed the judgment, dismissed the complaint and reversed "the finding of the jury that there was a delivery of the goods in question to the defendant." The reversal was put on two grounds: First, the seller was not authorized by the terms of the contracts to ship the goods to New York without instructions from the buyer as to route and destination, and second, the property in the goods did not pass to the buyer upon delivery F.O.B. at point of shipment. We held in Standard Casing Co., Inc., v. California Casing Co., Inc. ( 233 N.Y. 413) that upon a sale F.O.B., title passes to the seller from the moment of delivery to the carrier; that the rule is subordinate to intention but that the fact that the bill of lading is made out to the seller or order does not indicate an inconsistent intention. The case cited is conclusive on the question of delivery. When the title has passed, the seller may sue and recover the purchase price even though the buyer has refused to accept the goods. ( Turner-Looker Co. v. Aprile, 195 App. Div. 706; affd., 234 N.Y. 517.)
On the other point, the contracts are complete and their terms are plain. They are not mere options to be defeated by buyer's failure or neglect to send shipping instructions. So long as buyer took the position that no binding contract had been made, it could not give such instructions even though it had been requested to do so. It is, therefore, not prejudiced by seller's failure to ask for further directions. The contracts recite that Buffum Co., of New York city, has bought the prunes for rail shipment, October-November seller's option, F.O.B. Pacific coast rail shipping point. While the buyer might within a reasonable time after making the contract have sent instructions as to destination and routing and consignee, the contracts contained no provisions, express or implied, that seller should await instructions before shipping. The seller had the right to ship in October at risk of buyer after delivery to carrier, to buyer's place of business, no other place having been indicated. The unfilled blanks were incidental merely. It was not necessary to fill them to complete the contract. ( Loomis v. N.Y.C. H.R.R.R. Co., 203 N.Y. 359. ) They merely left the seller free in the absence of further instructions to ship the goods to buyer's place of business by such direct routing as the seller should select, consigned to buyer's or to seller's order. If the buyer chose to leave these matters to the choice of the seller, or to repudiate the contract entirely, it may not now complain.
The facts as to delivery are not in dispute. The reversal of the finding of the jury, impliedly and necessarily included in its general verdict, that there was a delivery, was a reversal on the law. The Appellate Division could not disapprove the finding except on the evidence. It is not contended that there was no delivery "F.O.B. Pacific Coast Rail Shipping Point." As no conflict of evidence or question of fact exists on which to base the reversal, disapproval of the finding of the jury on this point was erroneous and as matter of law the finding and verdict should be reinstated. ( Waddle v. Cabana, 220 N.Y. 18; Goodman v. Marx, 234 N.Y. 172, 174.)
The judgment of the Appellate Division should be reversed and the judgment of the trial court affirmed, with costs in this court and in the Appellate Division.
HISCOCK, Ch. J., HOGAN, CARDOZO, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgment accordingly.