Moritz v. Herskovitz

Per Curiam. On June 19, 1902, the appellant owned a stock of merchandise then in his store at Dayton, Washington, and on that day agreed in writing to sell the same to the respondent for the consideration, as expressed in the writing, of “sixty-five cents on the dollar.” Shortly thereafter, preparatory to completing the sale, the parties proceeded to take an inventory of the stock, during the course of which, owing to the different construction each placed upon the writing, difficulties arose between them which finally resulted in the abandonment of the transaction by the respondent and his refusal to have anything further to do with it. The appellant thereupon treated the goods as the respondent’s, sold them at private sale and at auction as he best could, and after having disposed of them, brought this action against the respondent too recover the difference between the amount he received for them and what he conceived to be the contract price. The case was tried twice to [194] a jury, resulting in a verdict for the respondent at each trial. The first verdict was set aside, by the court because of certain instructions given the jury which the judge after-wards conceived to be erroneous; judgment was entered on the second verdict, and this appeal is taken therefrom. At the trial there was much evidence introduced explanatory of the meaning of the phrasé, “sixty-five cents on the dollar,” used in the contract, the principal dispute between the parties being over the question whether it was meant to include 65 per centum of the invoice price of the goods, or 65 per . centum of the invoice price plus the cost of transporting them from the place where they were purchased to Dayton. The court instructed the jury that the. question was one for them to determine from a consideration of the evidence, and this instruction constitutes the first error assigned. The appellant insists that the question was one of law to be determined by- the court, and that the court should-have instructed the jury whether or not the phrase meant 65 cents oil the dollar with or without freight added. But we think the court correctly instructed the jury on the question. As . used in this contract, the meaning' of the phrase was uncertain, and evidence was properly introduced by both sides to explain its meaning. This evidence was contradictory. If the appellant’s version was correct then it meant one thing; if the defendant’s, then it meant another. Under these circumstances the court could do nothing else than present to the jury the two theories, and allow them to say which was the correct construction. After the respondent had refused to deal further with the appellant, the appellant put the matter into the hands of his counsel, who wrote a letter to the respondent setting out the appellant’s version of the transaction. This letter was offered in evidence by the appellant and rejected by the court. The appellant now insists that it was admissible as part of the res gestae, or if not that, at least as ’notice of the disposition the appellant intended making of the goods. But [195] plainly the letter was inadmissible. It was hut a self-serving declaration, no part of the res gestae, and immaterial as notice. The court refused to allow the appellant to show what the particular custom was at Dayton, Washington, as to ádding the freight charges to the cost of merchandise, but allowed him to show that such was the general custom throughout the state. Drror is assigned on the refusal to permit him to show the particular custom. The point is not well 'taken. There was no evidence tending to show that the respondent was acquainted with the particular custom at Dayton, or that he purchased the appellant’s stock with reference thereto, nor ivas it claimed that the custom at Dayton differed from the general custom. The evidence was not admissible. While the appellant was selling the goods, a fire occurred in a neighboring store damaging the goods to a considerable extent, and for which the appellant had collected insurance. On cross-examination he was questioned concerning the loss, the amount of insurance collected, and the disposition he had made of the money. This is assigned as error, but it was permissible as tending to reduce the amount of the damages the appellant was entitled to recover if he recovered at all. Finally it is objected that the cost bill is excessive in that a witness was allowed mileage for a distance of more, than 20 miles from the place of trial. The objection to this item, however, came too late, as the motion to retax was not filed until some three months after the costs had been taxed. There is no error in the record and the judgment will stand affirmed.