Hecla Powder Co. v. Sigua Iron Co.

• Decision Date: 10 January 1899
• Parties: HECLA POWDER CO. v. SIGUA IRON CO.
• Court: New York Court of Appeals Court of Appeals

157 N.Y. 437

52 N.E. 650

HECLA POWDER CO.

v.SIGUA IRON CO.

Court of Appeals of New York.

Jan. 10, 1899.

Appeal from supreme court, general term, First department.

Action by the Hecla Powder Company against the Sigua Iron Company. From a judgment of the general term (36 N. Y. Supp. 838), affirming a judgment for defendant, plaintiff appeals. Affirmed.

This action was brought upon a draft in the usual form for $950, dated May 10, 1892, payable two months after date, drawn by the plaintiff, and accepted by the defendant. It was pleaded as a defense that said draft was accepted upon the purchase by the defendant, from the plaintiff, of 5,000 pounds of blasting powder, at the agreed price of $950, on a credit of two months, and that the plaintiff stipulated to deliver said powder to the defendant, or its agents, ‘laid down in’ Santiago de Cuba, and to give the defendant previous notice of the vessel by which it would deliver said powder, and the time of the sailing of the same. It was alleged, as a breach of said agreement, that the powder was never delivered, and that the notice was not given as agreed. It was pleaded, as a counterclaim, that the plaintiff attempted to deliver the powder to the defendant, but neglected to procure the permits from the Spanish government, which were necessary in order to land the powder in Santiago; that it also failed to notify the defendant, as provided in the contract; and that by reason of such neglect and failure the powder was declared contraband, and seized by the Spanish government, which inflicted a fine upon the defendant's agents of $3,472.49, and they were obliged to pay it. Judgment was demanded against the plaintiff for that sum. Upon the trial evidence was given tending to show that the parties knew of the difficulties and dangers attending the shipment of high explosives to Santiago de Cuba, and that the defendant ordered the powder upon the express understanding that the plaintiff should make arrangements so that it could be safely landed at said port; that the price of said powder, which was in fact dynamite, an interdicted article in Cuba, except when landed by special permission, delivered in New York, was 17 cents a pound, but when laid down in Santiago was 19 cents; that the plaintiff agreed to deliver the powder to the agents of the defendant in Santiago, to pay the freight thereon, to notify the defendant of the shipment and of the name of the vessel, and to also notify its agents of the shipment, and forward to them all the papers necessary to lawfully land the powder, so that they would have them on the arrival of the vessel. The plaintiff obtained a permit from the Spanish consul in New York, and a bill of lading from the captain of the vessel upon which the powder was shipped, but did not send them to the defendant's agents in Santiago, except as it delivered them to the captain of the vessel for his own use, and for transmission to the agents of the defendant, who never received them. Upon the arrival of the vessel at Santiago, as the agents of the defendant did not have the necessary permit, the powder was seized and confiscated, and a fine was imposed upon said agents by the Spanish authorities, which they were compelled to pay. The jury rendered a verdict in favor of the defendant for the amount of said fine, $3,472.49, with interest thereon from the date of payment. Judgment was entered accordingly, and after affirmance by the general term the plaintiff appealed to this court.

Alexander T. Goodwin, for appellant.

Frederick J. Swift and Charles W. Dayton, for respondent.

VANN, J. (after stating the facts).

Several interesting questions, ably argued by the learned counsel for the appellant, are not before us, because they were not raised by objection and exception in the trial court. We cannot reverse the judgment appealed from unless the record affirmatively shows the denial of some legal right to the appellant during the progress of the trial, and that such denial was duly excepted to. In a civil action we can only reverse upon exceptions, and are compelled to disregard all errors committed by the trial court, unless they were pointed out by an objection, and saved by an exception, no matter how serious those errors may be. Wicks v. Thompson, 129 N. Y. 634, 29 N. E. 301. It is necessary for a party who wishes to preserve a point for the consideration of this court to give the trial court a chance to act advisedly, by interposing a proper objection, which raises the point, and by taking an exception, which saves the point. No objection, not taken upon the trial, can be urged or considered here. Serviss v. McDonnell, 107 N. Y. 260, 265,14 N. E. 314. The position now taken by the appellant, that the evidence does not warrant the verdict, cannot be sustained, because it did not take that position at the trial. Duryea v. Vosburgh, 121 N. Y. 57, 24 N. E. 308. No motion was made to direct a verdict, or in the nature of a nonsuit, or to dismiss the counterclaim, or to take any issue...