Bown Bros. v. Merchants Bank , 213 N.Y.S. 146 ( 1925 )

Sears, J. (dissenting):

The stipulation that the shipping documents were only to be delivered by defendant to the Swedish consignees upon their signing the so-called “ British form ” was in my opinion an essential and integral part of the contract between the parties. However, upon the consignees’ refusal to sign such form, the defendant was under an obligation to communicate that fact with the reasons therefor to the plaintiff promptly and there is evidence from which negligence in the performance of this obligation in respect to the drafts in actions Nos. 2 to 6 could be found, namely, in the delay from June second to June twenty-first. However, I find no evidence from which it can be found that damages were occasioned by this negligent delay. As to drafts in action No. 1, the plaintiff is shown to have known of the full situation when it was notified by defendant of the dishonor of that draft, and there is, therefore, as to this action a failure to show a breach by defendant of its contract.

Judgment affirmed, with costs.