Mr. Justice Smith sufficiently states the facts in this case.
The contract was clearly for the sale of refined sugar for export, delivery to be made free on board steamer in New York; terms net cash payable on presentation of shipping documents. In consideration of the seller passing the Custom House entry and carrying the drawback, the buyer agreed to furnish Custom House bill of lading and landing certificate free of charge. These express provisions of the contract could only be satisfied by the delivery of the sugar on board ship for export. Nor could the buyers waive these provisions and direct delivery to be made to a warehouse, for they were not solely for the benefit of the buyers, as was the case with the provisions in the contract in the case of Lekas & Drivas v. Schwill & Co. (187 App. Div. 486), which held that they could be so waived. The raw sugar had been imported in bond. On exportation the import duty would be paid back to the sellers on production of the Custom House bill of lading and the certificate of landing in the foreign port. The sellers could not be compelled to forego their contract right and accept the assurance of the buyers that they would thereafter export. The buyers contend that the sellers would have redress against them under the clause of the contract which provides: “ If the seller is unable to collect the drawback, through any neglect on the buyer’s part to fulfill the foregoing agreement, buyer agrees to reimburse the seller promptly in full for the amount of said drawback.” That clause in my opinion, has reference to neglect on the buyer’s part to furnish the Custom House bill of lading and the landing certificate. The seller would not be protected by that clause but would lose the entire drawback if, through no fault of the buyer, the sugar were destroyed in the warehouse. This extra hazard could not be imposed upon the sellers without their consent. The change in the manner of delivery is so substantial as in effect to make a new and different contract.
The exceptions should be overruled, with costs, and judgment ordered for the defendants.
Clarke, P. J., Laughlin and Merrell, JJ., concur; Smith, J., dissents.