Opinion of the Court, per PECKHAM, J. to transport and deliver the baggage within a reasonable time upon presentation of checks. If left for plaintiff's conve nience its liability as common carrier ceased. (3 N. Y. Stat. at Large, 634, §37; Jones v. N. & N. Y. Trans. Co., 50 Barb., 193, 206; Powell et al. v. Myers, 26 Wend., 591; Roth v. Buff. and State Line R. R. Co., 34 N. Y., 548, 553.) The referee having found facts which amount to a delivery, defendant was only liable as gratuitous bailee for gross negli gence. (Jones v. N. & N. Y. Trans. Co., 50 Barb., 206; Roth v. Buff. and State Line R. R. Co., 34 N. Y., 553; Miner v. Chicago, etc., R., R. Co., 19 Wis., 40; 2 Parsons on Contract, 5th ed., 199, 200; Norway Plains Co. v. Boston & Maine Co., 1 Gray, 263.) When there is a finding unsupported by any evidence, or a refusal to find a fact where evidence is uncontroverted, it is error of law. (Mason v. Lord, 40 N. Y. R., 476, 484; Marvin v. Ingalls, 39 H. P. R., 329, 353; Austin v. N. J. Steamboat Co., 43 N. Y., 75, 79; Laird v. Smith, 44 id., 618, 624; Putnam v. Hubbell, 22 id., 106, 113; Erickson v. Quinn, 3 Lansing, 299, 308.) The baggage-master had no authority to bind defendant to keep trunk over night, and it is not liable even as bailee. (Hicock v. N. R. R. Co., 31 Conn., 281, 283; Grant v. Norway, 10 Com. R., 682; 2 Eng. L. & E., 337; Hubbertsly v. Ward, 18 id., 551; Colman v. Richer, 29 id., 323; Mech. Bank v. B. & D. Bank, 13 N. Y., 599, 633; F. & M. Bank v. B. & D. Bank, 16 id., 125, 150; 1 Pars. on Con., 5th ed., 44.) PECKHAM, J. The Supreme Court reversed the judgment entered upon the report of the referee, and granted a new trial; but as it is not stated to have been reversed upon a question of fact, it is deemed to have been exclusively upon questions of law. The referee found, upon evidence, that "the plaintiff caused the demand to be made for said trunk and contents within a reasonable time, and made reasonable efforts, and within a reasonable time, to demand and procure the trunk and con Opinion of the Court, per PECKHAM, J. tents; and that the defendant refused and neglected to deliver the contents of said trunk." This finding, so stated, includes the finding that there was no delivery at all of the trunk and contents to the plaintiff; that what occurred at the depot some time after eight o'clock in the evening, when the plaintiff's son went there with a wagon for the trunk, was no delivery. Under these findings. the defendant still held the trunk as a common carrier. The responsibility of a common carrier, as to baggage, continues until the owner has a reasonable time and opportunity to receive and take it away. It is found in the case at bar that the plaintiff did not have such time and opportunity. This was by reason of the absence of the defendant's agent from the depot. For fifteen minutes plaintiff's wife waited after the arrival of the cars and looked for this baggage. It seems the baggage-master had quietly and quickly put it in the depot room, and left the place for his dwelling, some quarter of a mile distant. It is no answer, it is idle to say she could not have carried home the trunk if she had found it. True; but she could and would have made an arrangement on that subject, and, it is presumed, would have fulfilled it and taken home the trunk that night, and thus prevented the loss. That was the first and a plain neglect by the defendant. In proper season, immediately after tea, and at eight o'clock, the trunk is sent for; and at this time a wagon and horse are procured. Again the man in charge is absent, and, before the plaintiff's son could get him there, the horse and wagonman get impatient and leave. This is the second and plain neglect of the defendant. It plainly appears by the evidence that it was difficult on that day to get a wagon to transport baggage, and difficult to detain one unnecessarily. The defendant was bound to be there at the depot a proper and reasonable time at first for the delivery of that baggage. Not being so there, the baggage was locked up at defendant's peril. When plaintiff again, in a reasonable time, called for it, the master's negligent absence again prevented its delivery. Opinion of the Court, per PECKHAM, J. The taking off of the check, etc., from the trunk, and its par tial delivery to the plaintiff's son, under the impression by him that the horse and wagon were still there, was not a delivery. The departure of the horse, etc., occurred, be it marked, by reason of the neglect of the master to be there at the depot. The refere has found, necessarily, that the failure to await the return of the son who had gone in pursuit of the baggage-master was not unreasonable, under the circumstances; and, as the son testified, it was agreed by them, at the master's suggestion, that another could not be procured that night. Thus it plainly follows that the entire failure to remove the trunk that night was caused by defendant's negligence. In such case, the defendant's liability as a common carrier is not discharged. Suppose the plaintiff, with a horse and wagon, had gone to the depot at eight in the evening, and waited with two men for two hours, while a third man was vainly hunting the baggage-master, and then, hearing nothing of him, had gone home; but the master arrived within ten minutes thereafter, when no team could be obtained that night, yet the man supposing the wagon still there, had a partial taking of the baggage, as here, would it be contended there was any delivery? The precise length of time a party shall wait for finding the master is not and cannot well be settled as matter of law. It is found here, as matter of fact, that the waiting was reasonably long; and no error in law is committed thereby. The order of the Supreme Court should be reversed, and judgment absolute ordered for the plaintiff upon the finding of the referee. All concur, except FOLGER and ALLEN, JJ., dissenting. Statement of case. JOHN MOUNT, Respondent, v. JOHN L. LYON et al., Appellants. Defendant contracted to sell and deliver plaintiff, at Brooklyn, within three months, 400,000 brick at $10.50 per M. Defendants delivered 213,500 during the specified time. In an action to recover damages for the nondelivery of the residue,-Held (PECKHAM, J., dissenting), that the delivery of the entire quantity was a condition precedent of the right of defendants to demand payment, and the fact that, when they discontinued the delivery, plaintiff had not paid for those delivered was not an excuse for the non-delivery of the residue; also, that it was not necessary, as a condition precedent to a right of action, for plaintiff to rake a formal demand of the brick, and tender payment therefor at the place of delivery; that it was enough if he was ready and willing to receive and to pay on delivery; nor was it necessary that plaintiff should have had, during the whole time specified, a sum of money on hand sufficient to pay the whole purchase-price; it was sufficient if he had the means and resources at command which would have enabled him to pay if the brick had been delivered. (Argued May 29, 1872; decided June 4, 1872.) APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judg ment in favor of plaintiff entered upon the report of a referee. The action was brought to recover damages for the breach of a contract for the delivery of a quantity of brick. On the 19th day of August, 1867, by contract in writing, defendants agreed to furnish to plaintiff, delivered at the corner of Fifth avenue and Twelfth street, Brooklyn, within three months, 400,000 North river hard brick; price, delivered, $10.50 per M. Defendants delivered, under the contract, 213,500, and refused to deliver the balance. Plaintiff paid for those delivered about December 28, 1867. The referee gave judg ment for the difference between the market value and the contract price at the expiration of the time for delivery, i. e., November 19, 1867. J. T. Marean for the appellants. Plaintiff was not entitled to recover without proving that, on the 19th November, 1867, Opinion of the Court, per ALLEN, J. he was ready and willing to have paid for the brick on delivery. (Morton v. Lamb, 7 Term Rep., 125; Waterhouse v. Skinner, 2 B. & P., 447; Rawson v. Johnson, 1 East, 203; Topping v. Root, 5 Cow., 404; Porter v. Rose, 12 Johns., 209; Peters v. Opie, 2 Saunders, 350, note 3; Cook v. Ferral's Admrs., 13 Wend., 285.) He must show, either that he had the money ready for tender or that he was at least in such a position that he could have obtained it at any moment. (Rawson v. Johnson, 1 East, 208; Coonley v. Anderson, 1 Hill, 519; Bronson v. Wyman, 8 N. Y., 182; Vail v. Rice, 5 id., 155.) Royal S. Crane for the respondent. Ability and readiness to pay on delivery was sufficient, and this does not require direct proof, but may be maintained by circumstantial evidence. (Vail v. Rice, 5 N. Y., 155; Bronson v. Wyman, 8 id., 102; Coonley v. Anderson, 1 Hill, 519; Porter v. Rose, 12 Johns., 209; Topping v. Root, 5 Cow., 404; 5 Johns., 179; 2 id., 207; 7 T. R., 125; 1 East, 200; 2 Bos. & Pul., 447; 1 id., 320.) ALLEN, J. There was a conflict of evidence upon the allegation of the defendants that the plaintiff had waived the performance of the contract by requesting the defendants not to deliver more brick under it, and the referee has found that issue against the defendants. The contract was entire and indivisible for the delivery of a given quantity of brick, at a place specified, and within a limited time, to wit, within three months from the making of the agreement. The delivery of the entire quantity was a condition precedent to the right of the seller to demand payment for any part. No time of payment being fixed by the contract, the law makes the price payable upon the delivery of all the brick, and not before. (Baker v. Higgins, 21 N. Y., 397; Husted v. Craig, 36 id., 221.) The fact, therefore, that the plaintiff had not paid for those delivered prior to October, when the defendants discontinued the delivSICKELS-VOL. IV. 70 |