Opinion
May, 1922.
Judgment and order affirmed, with costs. All concur, except Davis, J., who dissents upon the grounds: 1. The contract of sale provided for delivery of the trees on board cars at Dansville, tied in bundles of ten, shipment to be made in the fall. There is no competent evidence of a modification of the contract or waiver of the delivery on board cars, made by the defendant or any person clothed with authority to act in its behalf. 2. The arrangement for storing in Hartman's warehouse was made to facilitate the sorting, grading and bundling by the plaintiff and for his convenience and to obviate the danger of the freezing of the trees before they could be prepared for shipment, not as a substitute for delivery on the cars. The evidence is clear that both parties at the time and subsequently so understood it.