Opinion
February Term, 1896.
Alexander T. Goodwin, for the appellant.
Frederic J. Swift, for the respondent.
The action was brought to recover on an acceptance of $950 which defendant gave for Hecla powder, bought from plaintiff and to be delivered to defendant at Santiago de Cuba. The defendant denied that the power had been delivered and set up a counterclaim, based upon the plaintiff's attempt and failure to make delivery as agreed, whereby it suffered damage as alleged in the sum of $3,472.49 by way of a fine imposed upon it by the Spanish government, who seized the powder upon its arrival and put it in the government magazine as contraband. The issues joined by the pleadings were tried and the jury rendered a verdict in favor of the defendant upon the counterclaim. From the judgment thereupon entered the plaintiff appealed, and a decision was rendered affirming the judgment. The plaintiff now asks for a new trial, claiming that it has discovered evidence of an actual delivery to and a receipt by the defendant's agents of said powder, and in support of the motion submits the affidavits of Jose Beditez and Antonio Biby, and a copy of a letter from the principal commander of artillery at Santiago de Cuba to the present United States consul at that place.
We think the affidavits of Beditez and Biby are insufficient, because neither states that the affiant knows, of his own knowledge, that the lighter which took the powder from the vessel at the port of Santiago de Cuba belonged to the defendant or its agents, and whether or not they would be willing to appear and swear to any such facts is not stated. They allege, upon information and belief, that the powder was discharged in a Sigua Company's lighter and taken to the government magazine, "as is usual and customary with all importations here of such nature." They do not show that the powder was delivered to or received by Brooks Co., the defendant's agents, and the statement that the powder was taken to the government magazine unmolested by the Spanish government is contradicted by the testimony of one of the witnesses upon the trial, who averred that there was a military officer of the government and a custom house officer on the lighter "to see that the powder got to the magazine." It may be that the lighters which took the powder from the vessel to the magazine belonged to the defendant's agents; but unless they were entitled to receive and take it unmolested by the government, it was not a delivery pursuant to the contract between the parties.
The letter of the principal commander of artillery, even if we overlook the fact that it was not an official document or transcript, and was not sworn to or certified, merely gives on information such facts as he had learned about the powder. It is made clear that, by order, his superior appointed a military officer to make an inspection of the powder, and that to that end it was taken to the Punta Blanca powder magazine, where it remained for nine months after the time it should have been delivered to defendant's agents, and the request of the latter for delivery of the powder was refused because they had imported the same into the island "without competent authorization." This letter tends to show that the powder was actually taken by the authorities at the time it arrived in the harbor; and as this was the very question involved upon the trial, instead of militating against, it rather strengthens, the conclusion reached by the jury upon the disputed evidence that there was no delivery to the defendant, but that the attempt to deliver it resulted in its being placed in the government magazine, and in the imposition of a fine upon the defendant's agents. As said in the opinion upon the former appeal: While there was some doubt about everything in regard to just how the government took possession, whether upon the lighters of the defendant or upon government lighters, two salient facts clearly appeared: "One, that the plaintiff entered into a contract to deliver the powder in Santiago de Cuba; and the other, that it was seized when it arrived there by the Spanish authorities, and the defendant's agents were fined the amount which is the basis of the counterclaim. There was no serious dispute or question as to the amount of the fine paid by the defendant and found by the jury, and the parties not having litigated that below it is too late to urge it upon the appeal." (91 Hun, 429.)
We do not think that the newly-discovered evidence, if it was competent, would in any way change the result upon these two principal questions, upon which the liability of the plaintiff for failure to deliver, must rest. As pointed out, they rather strengthen the view that the powder was not delivered to the defendant for some nine months after its arrival; and there is not the slightest intimation that, as the result of the attempt to introduce it, the defendant's agents were not fined the amount which they alleged and proved upon the trial they were obliged to pay to the government.
The statement in the letter of the military commander, that the defendant's agents some nine months afterwards obtained the powder, is fully explained by the affidavit in answer, wherein it appears that the agents of the defendant were compelled by the Cuban authorities to take the powder under a threat of a penalty of from $200 to $250 a month for storage if they failed to do so, and that to avoid paying this amount they received the powder which was then found to be dampened and utterly unfit for use, said uselessness having been caused by the corrosion of the cans and the admission of dampness thereby to the powder while in the possession of the authorities. It can hardly be claimed that a delivery, under such circumstances and at such a time, of powder in that condition, was any such delivery as was contemplated by the agreement between the parties.
Apart, therefore, from the question as to laches in making the application, and the errors upon important details into which some of the plaintiff's affiants have fallen, and for the reason appearing that such new evidence would not be likely to change the result reached upon the trial, we think the motion was properly denied below and that the order should be affirmed, with ten dollars costs and disbursements.
VAN BRUNT, P.J., RUMSEY and WILLIAMS, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.