Harlow v. Parsons Lumber & Hardware Co.

Thayer, J. The complaint alleges that on May 15th, 1906, the plaintiffs and the defendant mutually agreed that the plaintiffs should sell to the defendant, and that the defendant should purchase from the plaintiffs, one carload of lumber, consisting of 18,072 feet of yellow pine flooring, for $38.50 per thousand feet, said lumber being then in transit and to be delivered by the plaintiffs to the defendant on arrival; and that on the 15th of August following, on the arrival of the lumber, the plaintiffs offered to deliver the same to the defendant and the defendant refused to accept it. As the complaint thus alleges an agreement for the sale of personal property for more than $50, to be thereafter delivered, no part of which was ever accepted, such agreement was within the statute of frauds and could be proved only by a memorandum thereof in writing signed by the defendant or its agent. General Statutes, § 1090. For such memorandum the plaintiffs relied upon the sales slip, invoice and letter of the defendant, which appear in the statement of the case. It nowhere, in either of these documents, expressly appears that the lumber was to be delivered on arrival, or within what time it was to be delivered. The sales slip is dated May 15th, the day the contract was made, the invoice is dated April 17th, nearly a month earlier. In the sales slip appear the words “When transit car.” The plaintiffs insist that these words express the date of delivery, and that such date is the arrival of the lumber in Unionville. Unless they have in the lumber trade a technical meaning different from their ordinary meaning, it is clear that they give no information as to the time when the lumber should be delivered. But the plaintiffs, insisting in the trial below, as they insist here, *576 that the words had such technical meaning, the court properly received parol evidence to show what that meaning was. Hatch v. Douglas, 48 Conn. 116, 128, 129; Soper v. Tyler, 77 id. 104, 106, 58 Atl. 699. From such evidence the court found that such sales slips are customarily used in the lumber trade, and that it is the custom to fill in the blank after the printed word “When,” with the date of shipment; but that when filled as this was with the words “transit car,” they mean that the lumber has left the mill and is in transit. The words, therefore, do not fix the date of delivery. If the parties to the contract did not agree upon the date of delivery, the law would imply that it was to be within a reasonable time. Soper v. Tyler, 73 Conn. 660, 661, 49 Atl. 18. But this is not the contract alleged in the complaint, and the memorandum relied upon fails to prove the special contract alleged — to deliver on arrival. The court correctly ruled, therefore, that the memorandum was not sufficient to prove the contract alleged. If the memorandum is construed as requiring the delivery to be within a reasonable time, the plaintiffs claim that this is not “a question of primary fact” but a conclusion which is in such cases a question of law. Ordinarily what is a reasonable time under the circumstances of a given case is a question of fact for the jury. When the circumstances are such that but one conclusion is reasonably possible, the court may assume or declare to the jury the conclusion which must inevitably be reached. Loomis v. Norman Printers Supply Co., 81 Conn. 343, 71 Atl. 358. In the present case it was a question of fact to be determined under the evidence, and was so treated in the pleadings. In the case of Soper v. Tyler, 73 Conn. 660, 662, 49 Atl. 18, it is said that “what was such reasonable time was a question of fact for the jury.” In that case the question being considered was whether an order to ship grain was given within a reasonable time. In the present case the first defense of the answer sets up, in substance, that the delivery was not *577 tendered within a reasonable time. The plaintiffs joined issue on that question of fact, and the court has found the issues in favor of the defendant. There is nothing in the case as it comes before us from which we can see that the court adopted any wrong conclusions of law in making the determination. If, therefore, the plaintiffs proved a contract to deliver within a reasonable time, they failed to prove performance on their part. One of the conclusions reached by the court was that the unexplained failure on the part of the railroad to transport the lumber promptly did not excuse the plaintiffs’ failure to make delivery either within the usual time required for transportation or within a reasonable time. Whether it would excuse nondelivery within the usual time of transportation, it is unnecessary to consider, as that is not a question in this case. Such a delay would be an important circumstance to be considered in determining whether the delivery was made within a reasonable time. Delays of that character will, in the ordinary course of things, occur, and are to be considered in determining the reasonableness or unreasonableness of a party’s conduct. We must assume that the court took into consideration the fact of the railroad’s lack of promptness, in arriving at the conclusion that the lumber was not tendered to the defendant within a reasonable time. It cannot be said, therefore, that the court was wrong in the conclusion mentioned. Two witnesses called by the defendant were asked to relate what they heard of a telephone conversation between the parties to the suit at the time the contract was made. Their answers tended to show an agreement on the part of the plaintiffs to deliver the lumber in ten days or two weeks, and was admissible in support of the allegations of the second defense upon which issues of fact were joined. The evidence was objected to as tending to vary the terms of the written memorandum. The objection was overruled, upon what ground is not stated. As the case was decided *578 upon the grounds that the memorandum did not support the contract alleged in the complaint, and that the lumber was not tendered within a reasonable time, and' was not decided upon the grounds stated in the second defense, the plaintiffs can have received no harm from the reception of the evidence, and the ruling of the court in admitting it affords no ground for a new trial. There is no error. In this opinion the other judges concurred.