Steiner v. Merchants' Despatch Transportation Co.

73 N.Y. St. Rep. 858

Opinion

O’BRIEN, J.

The theory of the complaint is that the plaintiffs-lost the sale of the Astrakhan skins to the consignees by reason of: the delay in their delivery by the transportation company. Snehi Cause of action, however, they failed, to prove. Their testimony' tended to show that the goods were sold by sample; but whether such sijle was an absolute one or one subject to the approval of the consignees was brought in question. The weight of the evidence was favorable to the view that they were sent on approbation or approval; and, were there no other question in the case, there might be force in the plaintiffs’ argument that the judge below should not have directed a verdict .upon this ground, but should have submitted the question to the jury. This question, however, was not controlling, because it appears beyond cavil that the goods were rejected by the consignees because not according-to the sample or contract, being, in their view, inferior in quality. Although, at the request of the plaintiffs, the consignee afterwards? wrote a letter saying that the goods'arrived too late to be of any use, and that such delay caused loss, still it is placed beyond doubt that the real ground of rejection was not the delay, but the-inferior quality of the goods." It thus being shown that the delay was not what caused a loss of the' sale of the goods to the consignees, the plaintiffs failed to prove their alleged cause of action.

It is insisted, however, that conceding that the goods were shipped subject to approval, as the .transportation company failed to-transport and deliver them diligently, the plaintiffs, having asked to be allowed to amend the pleadings so as to conform to the proof, should have been permitted to go to the jury upon the question? of their damages. Such a ground, however, is entirely inconsistent with the cause of action alleged, and the plaintiffs’ motion was properly denied. But, even if granted, it would not have helped the plaintiffs, for the reason that there was a failure to-prove any loss or damage by reason of the delay. We think, therefore, where, as here, the plaintiffs, directly selected the ground upon which they based their right to recover, and endeavored to-fortify this by inducing the consignees to write a letter which cannot be said to reflect credit on any of the parties, that, after it was; found that such a theory would not prevail, the court was justified in disallowing an amendment which would have introduced a dif-1 ferent cause of action, and which, as we have said, upon the evidence, even if allowed, would not have saved the plaintiffs’ case.

We think that the direction in the defendant’s favor was right, and that the exceptions should be overruled, and judgment directed for the defendant upon the verdict, with costs. " '

All concur."