Halpern, Botter and Michels. The opinion of the court was delivered by Halpern, P.J.A.D.
Following a nonjury trial a judgment of no cause for action in favor of defendant Home Liquors and against plaintiff Black Prince Distillery was entered. Suit had been brought by plaintiff against defendant to recover $21,301.84 on a book account for whiskey sold by plaintiff to defendant. Summary judgment had previously been entered in favor of defendant Royal Trucking Corp. and it is not involved in this appeal.
The relevant facts involved are that plaintiff distills and bottles whiskey. Defendant operates many retail store outlets, and has been buying whiskey from plaintiff for about 25 years. During all this period the whiskey was transported by way of Royal. On May 10, 1973 defendant called plaintiff and ordered whiskey valued at $21,301.84. As was its custom, plaintiff prepared the order for shipment, called Royal and told it the order was ready to be picked up. Plaintiff prepared the shipping documents which did not designate a destination for the goods. The shipping papers were signed and received by Royal. Again, as was their custom, the telephoned purchase order was confirmed by a writing executed by Home, directed to plaintiff, and entitled "Request for Release." The request was signed by defendant's agent and recited "please release the following to Royal Trucking Company," and set forth the quantity and type of goods being purchased. It is significant that the request contained no instructions as to where the goods were to be delivered. The trucking cost was either totally or partly paid by plaintiff. On May 11, 1973 the goods in question were allegedly hijacked while in the possession of Royal en route to a destination designated by defendant.
Thus, the narrow issue presented to the trial judge was whether plaintiff or defendant should bear the loss. The trial judge, in his letter opinion of April 5, 1976, stated that the
responsibility for the loss was "not easily discernible." However, he premised his finding in favor of defendant upon a letter written by plaintiff to defendant after the alleged hijacking, stating:
Home Liquors, 773 South Orange Avenue, Newark, N.J.
Attention: Mr. Eddy Fisher
Starting today, our prices for your products will be regarded as F.O.B. our plant at Clifton.
This will mean that you decide about the way you want the goods transported to your stores, at your cost and risk.
We will lower your prices with 15 cents per case, being the amount previously paid by us for ...