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182 NEW YORK SUPPLEMENT
(Sup. Ct. is of a contract to transport, instead of a contract to sell. Where a party agrees to carry goods to a designated place, the damages arising from his failure to perform are measured by the value of the goods at the place of destination. Sturgess v. Bissell, 46 N. Y. 462; Sherman v. Hudson R. R. Co., 64 N. Y. 254, 259; Lowenstein v. Lombard, Ayres & Co., 164 N. Y. 324, 334, 58 N. E. 44; Wallingford v. Kaiser, 191 N. Y. 392, 395, 84 N. E. 295, 15 L. R. A. (N. S.) 1126, 123 Am: St. Rep. 600; Rice v. Baxendale, 7 Hurlstone & Norman, 96; Stroms Bruks Aktie Bolag v. Hutchison  Appeal Cases, 515.
 The question here is: What was the place of delivery under this contract? That is a question to be determined according to the intention of the parties. Smith v. Edwards, 29 Hun, 493; United States v. R. P. Andrews & Co., 207 U. S. 229, 28 Sup. Ct. 100, 52 L. Ed. 185.
[4, 5] Ordinarily, in the absence of special facts, a contract to sell goods is completed when the seller delivers them to a carrier to be transported to the buyer. That constitutes a delivery to the buyer, and this is true although the goods are not then paid for. Krulder v. Ellison, 47 N. Y. 36, 7 Am. Rep. 402; Gilbert v. N. Y. C. & H. R. R. R. Co., 4 Hun, 378, 381; 35 Cyc. p. 193 et seq.; White v. Schweitzer, 147 App. Div. 544, 132 N. Y. Supp. 644; 17 L. R. A. note at p. 179.
But the above rule does not apply, if the seller agrees to deliver the goods at the buyer's place, or makes some other agreement showing at different intention of the parties. Westmoreland Coal Co. v. Syracuse Lighting Co., 159 App. Div. 323, 145 N. Y. Supp. 420; Manufacturers' Commercial Co. v. Rochester Railway Co., 117 N. Y. Supp. 989, 992-993; Braddock Glass Co. v. Irwin & Co., 153 Pa. St. 440, 25 Atl. 490; 22 L. R. A. note at page 421. So, under the common provision f. o. b. place of shipment, the seller's obligation is completed when he ships the goods, and title to them passes then, and he is not obliged to pay the freight. But, if the agreement is f. o. b. place of destination, the seller must pay the freight, and may be deemed to have retained the title to the goods until their arrival at the point of destination. Gass v. Astoria Veneer Mills, 121 App. Div. 182, 105 N. Y. Supp. 794; Pacific Iron Works v. Long Island R. R. Co., 62 N. Y. 272; Gourd v. Healy, 137 App. Div. 323, 122 N. Y. Supp. 7; Williston on Sales, p. 409; Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, 481-482, 14 South. 672; Neimeyer Lumber Co. v. Burlington & M. R. R. Co., 54 Neb. 321, 74 N. W. 670, 40 L. R. A. 534. But, if there is anything to show that the intention of the parties was different, that will control.
Hence the fact that the freight was paid by the seller is not conclusive that the delivery was to be at the place of destination. Dannemiller v. Kirkpatrick, 201 Pa. 218, 224, 225, 50 Atl. 928; McLaughlin v. Marston, 78 Wis. 670, 677, 678, 47 N. W. 1058. And where goods were to be shipped at Antwerp for New York, delivery was held complete upon shipment, and the damages were measured by the value of the goods at Antwerp, and not at New York. Cahen v. Platt,
69 N. Y. 348, 25 Am. Rep. 203. And under a contract by which plaintiff "sold and agreed to ship to defendants in New York" goods at an agreed price, "less the freight" between point of shipment and New York, title was held to pass upon the delivery of the goods to the carrier. White v. Schweitzer, 147 App. Div. 544, 132 N. Y. Supp. 644. A contract to sell "f. o. b. continental port, inspection at seller's works," was held to put the cost of the inspection upon the seller. Silberman v. Clark, 96 N. Y. 522. Where a contract for the purchase of goods for cash f. o. b. place of shipment, buyer to assume all costs of removing the same from the yard where located, the latter provision was held to control, as it showed the intention; and so it was held that the expense of putting the goods on the cars had to be borne by the buyer, although the provision f. o. b. would ordinarily have required the seller to do so. Burgess Sulphite Fibre Co. v. Broomfield, 180 Mass. 283, 287, 62 N. E. 367.
The provision c. i. f. seems to have been rarely used in commercial contracts in this country. Many text-books contain no mention of the term, and but few cases have been found here which touch upon its meaning. The provision, however, is common in England, and has been used there frequently in shipping contracts.
[6, 7] Its meaning is stated in 11 Corpus Juris, p. 765. It is an expression indicating that the price fixed covers the cost of the goods and insurance, and freight on them to the place of destination. Sometimes the initials are transposed-c. f. i.-but the meaning is the same. Under a contract containing such a provision, the seller must ship the goods, arrange the contract of affreightment to place of destination, and pay its cost or allow it from the purchase price, and procure insurance for the buyer's benefit for the safe arrival of the goods and pay therefor. Ruling Case Law, vol. 23, title "Sales," § 158. When the seller has done this, and forwarded the papers to the buyer, he has fulfilled his contract, and delivery is complete. There is no obligation by the seller to deliver the goods at the place of destination. Ireland v. Livingston, L. R. 5 N. L. 395, 406; Biddell v. Clemens Horst Co.,  1 K. B. 214; Groom, Ltd., v. Barber,  1 K. B. 316; Crozier v. Auerbach,  2 K. B. 161; Landauer v. Craven,  2 K. B. 94; Karberg v. Blythe,  1 K. B. 495; Mee v. McNider, 109 N. Y. 500, 17 N. E. 424; Williston on Sales, p. 408. The principle above referred to was stated and approved by the Supreme Court of the United States in Thames & Mersey Insurance Co. v. United States, 237 U. S. 19, at page 26, 35 Sup. Ct. 496, 59 L. Ed. 821, Ann. Cas. 1915D, 1087. This is the meaning and effect of the letters c. i. f., in the absence of any agreement to the contrary, or any provisions showing a different intention. And in the case at bar there is nothing that requires a different meaning being given to this commercial expression.
That such is the meaning that must attach to this expression is emphasized by the requirement that the seller must procure insurance. for the buyer's benefit. This is a manifest indication that delivery was to be complete at the place of shipment, and that the title to the goods
was in the buyer from that time. If this were not so, why would the buyer require the seller to procure insurance for him? If the goods were still the seller's until they reached their destination, the risk of their safe arrival would be the seller's, and the buyer would have no concern about that. He would lose nothing if the goods did not arrive; the loss would fall upon the seller. This and similar provisions in contracts have been held to be controlling factors in determining the intention of the parties. Martz v. Putnam, 117 Ind. 392, 402, 20 N. E. 270; Tregelles v. Sewell, 7 Hurlstone & Norman, 574; The Elgee Cotton Cases, 22 Wall. 180, 22 L. Ed. 863; Stewart v. Henningsen Produce Co., 88 Kan. 521, 129 Pac. 181, 50 L. R. A. (N. S.) 111, Ann. Cas. 1914B, 701.
If it was the intention of the parties that delivery should not be complete until the goods arrived at London, an "f. o. b. London" provision could have been inserted in the contract. The difference between an "f. o. b. London" contract and a "c. i. f. London" contract has been pointed out; and that the parties understood there was a difference between those terms is apparent from the correspondence they had had. Different propositions were made at different times. The first was an offer “c. i. f. London"; later an offer "delivered London"; still later an offer "f. o. b. Chicago"; and finally the contract in suit, "c. i. f. Rotterdam," subsequently changed to "c. i. f. London dock." All this confirms the usual meaning of the c. i. f. provision, and shows the parties did not intend that the delivery should be at London under the contract they made.
There is nothing here to show the parties had in contemplation that the value of thorium in London should be the measure of damages as there was in Durst v. Burton, 47 N. Y. 167, 7 Am. Rep. 428. What those circumstances were in that case does not appear in the opinion, and whether or not that was the intention of the parties seems not to have been litigated. The only question decided was whether the value of the goods at some place which was neither that of delivery nor that within the contemplation of the parties could be accepted.  The provisions of the Personal Property Law (Consol. Laws, c. 41) have not been overlooked. Rule 5 of section 100 reads:
"If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon."
This rule is to be applied "unless a different intention appears." But this statute cannot be applicable to the contract under discussion. This contract was neither made, nor was it to be performed, in New York; but if this was a New York contract, it is not clear that this quoted rule would control. It does not include one of the provisions that is contained in a c. i. f. contract, the procuring of insurance for the buyer's benefit; and that provision, as has been pointed out, clearly indicates "a different intention" as to when the title shall pass than would follow under the rule.
 The plaintiff proved the value of thorium in London, but
offered no proof as to its value in Chicago. Defendant's proof of the Chicago value plus freight and insurance charges is therefore undisputed, and must be accepted. That is the basis upon which plaintiff's damages must be calculated. The same rule of damages applies where there is no shipment made as where a shipment is made that does not conform to the contract. Crozier v. Auerbach,  2 K. B. 161, 165.
Judgment for the plaintiff accordingly, with costs. Settle findings on notice.
(110 Misc. Rep. 575)
DUFF et al. v. RODENKIRCHEN et al.
(Supreme Court, Special Term, New York County. February, 1920.) 1. Powers 36 (1)—Appointment by son's will, if valid, held execution of power of appointment under his father's will, though not referring to it. Where J., a surviving son, and his sister, each received under their father's will a beneficial life estate in one half of the residuary estate, and a remainder for life in the other half on survivorship after death of original life tenant without issue, and the remainder after their death was devised to such person as survivor might by will appoint, and where sister, dying without issue, devised her residuary estate to J., and he, dying without issue, devised residue of his estate in trust for his wife, with power of appointment by will, the power given by J.'s will, if valid, was, under Real Property Law, § 175, an execution of his power under his father's will, though not referring to it.
2. Powers 36 (1)—Will of son having power of appointment under father's will, and also having an independent interest in property, exercising his power of appointment, would be construed as devising his independent interest.
Where a son was devised a beneficial interest in one-half of father's residuary estate, and by his sister's will was given her one-half of residuary estate, and by their father's will the remainder was to go to those whom the son, as surviving life tenant, should by will appoint, and he devised residue of his estate in trust for his widow for life and to those whom she might appoint on her death, the rule of Real Property Law, § 178, that son's will was an execution, so far as valid. of his, power, did not apply, where he also had an independent interest in property, so that his whole will would be construed as a devise of such independent interest, and, if he could not devise it for life, the entire attempted devise would be invalid.
3. Wills 694-Son, taking entire reversion of father's estate on failure of execution of power, might devise it entirely apart from power of appointment in father's will.
Where J., a surviving son, and his sister, were each devised by father's will a beneficial life interest in one half of residuary estate, and a remainder for life in the other half on death of the other without issue, and the remainder after death of both without issue was devised to whom survivor might by will appoint, there was no provision in event of both dying without issue and without exercising power to dispose of remainder, and hence a reversion to father's estate, and J., then being an heir at law and the devisee of his sister's interest, took the entire reversion of his father's estate, in view of Real Property Law, §§ 36, 40, 59, and might devise it apart from power of appointment under his father's will.
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
4. Perpetuities ~6 (5)—Will of son held to create a new future estate in his property, valid because, standing alone, it did not suspend alienation for more than one life.
Where surviving son and daughter were each given a beneficial life interest in one half of father's residuary estate, and a remainder for life in other half, contingent on survivorship, and the remainder, after death of both without issue, was devised to such as surviving life tenant might by will appoint, the will of the son, as survivor, giving residue of his estate in trust for wife and on her death to those she might appoint, created a new future valid estate in his property, which, standing alone, did not suspend power of alienation for more than one life, in contravention of Real Property Law, § 178, though following immediately upon previous trust for two lives.
A "reversion" is the residue of the estate left in the heirs of a testator, commencing in possession on the determination of one or more particular estates devised.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Reversion.]
Action for an accounting by Clementine Farr Duff and the American Security & Trust Company, as executors and trustees under the will of John J. Duff, deceased, against Mary J. C. Rodenkirchen and others, involving the construction of the will of John J. Duff and the will of his father, Michael Duff. Wills construed, and judgment accordingly.
M. F. Johnson, of New York City (Howard C. Taylor, of New York City, of counsel), for plaintiffs.
Morris A. Hulett, of New York City, for defendant Rodenkirchen. Agar, Ely & Fulton, of New York City (John G. Agar, of New York City, of counsel), for defendants Duff and others.
Joseph Atz, of New York City, for defendants Fox and others. Winthrop & Stimson, of New York City, for defendants Children's Seashore House and another.
John T. Sturdevant, of New York City, for defendant Episcopal Eye, Ear & Throat Hospital.
Arthur T. Clark, of New York City, guardian ad litem, for infant defendants Fox.
LEHMAN, J. The plaintiffs herein have brought an action for the settlement of the accounts of their testator as surviving trustee under the last will and testament of his father, Michael Duff, and in their complaint they ask for a construction of the will of John J. Duff, and for a determination of the rights of the parties herein to certain real estate and the proceeds of real estate, under the terms of the wills of John J. Duff, his sister, Mary Carey, and Michael Duff.
Michael Duff died a resident of New York county on October 28, 1904. At the time of his death he was seized of certain real property which passed under the devise of his residuary estate in his will. This will provides:
"Eighth. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, of what nature or kind soever unto my executors For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes