Paolino v. Lordi

119 N.Y.S. 174

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 12, 1909
• Status: Published

Opinions

SEABURY, J.

-The plaintiff sued upon the following contract signed by the defendant:

“I will deliver to Paolo Paolino the sum of two hundred and ninety-four dollars and fifty cents as soon as the six barrels of red wine, quality identical with the sample, will have been received in Pensacola, Florida, by Mr. G. Re.

“Number of gallons, 310. [Signed] G. Lordi.”

The evidence was conflicting as to whether the wine, when received in Pensacola, Fla., was of the same quality as the sample. The court below submitted the case to the jury upon the theory that the plaintiff was entitled to recover if he delivered wine of the same quality as the sample to a common carrier with instructions to deliver it to Mr. G. Re at Pensacola, Fla. Objection to this theory being made by the defendant, the court below left to the jury the construction of the contract.

The construction of the contract was for the court, not for the jury. From the terms of the contract it is evident that the defendant was obligated to pay only when wine of the same quality as the sample “will have been received in Pensacola, Florida, by Mr. G. Re.” The delivery of such wine to a common carrier, with instructions to deliver it according to the contract, was not a compliance with the terms of the contract.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.

GILDERSLEEVE, P. J., concurs.