As the plaintiff'knew at the making of the contract that, the whiskey was in the bopded warehouse in Kentucky, and that as he ordered it from time to time by the barrel at the defendant’s office in New York City and paid the tax thereon it would have to be shipped by railroad to him as freight from the warehouse after the payment of the tax and the formalities to get it released there by *164the United States government were gone through with, and that the time of arrival would depend largely on the condition of business on the railroads, the contract cannot be taken to have been that delivery had td be made within 10 days after each order, in order to bind the plaintiff to receive, without an express agreement to that. effect. All that there is is testimony that the agent of the defendant who made the sale said to the plaintiff at the time of the purchase that the deliveries would be made in ten days. This was a mepe approximate statement by the agent, and was not made a condition of the contractas a reading of the evidence shows. It was. error to exclude evidence that immediately on receiving the order for the two barrels of whiskey the defendant ordered the goods shipped. The defendant was entitled to show that there was no delay by it in the shipment, and that the goods arrived in due time.. This is all on the assumption that delivery was to be made at Jamaica,'instead of on board the cars at the place of shipment, as is the course of business. The,evidence on the subject is too meagre to support a finding that delivery was to be at Jamaica. The case seems to have been tried on both'sides without any understanding of or regard for the rules of law applicable to the measure of damages, or as to whether the defendant would be obliged to deliver if the plaintiff defaulted on the notes, or. as to whether the plaintiff would be liable on the notes if the deliveries were not made. But the theory on which the case went to the jury, viz., that the goods and the bill of lading had arrived on December 28, and that the defendant on that day refused to deliver the bill of lading unless a note not yet due Were paid, is against the weight of evidence. The date of shipment and arrival was susceptible of positive proof, and the neglect to supply it was strange, to say the least, ■
. The judgment and order should be reversed.
Woodward and Jerks, JJ., concurred; Hooker and Rich, JJ., concurred in result.
Judgment and-order reversed and new trial granted, costs to abide the event.