Richard v. Haebler

O’Brien, J.: The fair inference to be drawn from the testimony, whether offered by the plaintiffs or the defendants, is that it was the common practice to purchase cement by the barrel and not by weight, and that- when so purchased a barrel was expected to weigh about 180 kilos, and that a good delivery would be of barrels which weighed within 10 pounds or 12 pounds of 180 kilos. . That is to say, there being 2.20 and a fraction pounds in a kilo, 180 kilos, therefore; equalling 396 pounds, where the contract was for the purchase of barrels of cement it was expected by both parties that they would contain about that number of pounds; but it was not regarded as a fatal variance if they fell- no more than 2 pounds in weight a ban99 rel below that figure. The reason given for the willingness to accept barrels thus below the standard weight as a good delivery, arose from the fact that even if the barrels were up to weight when packed and shipped from Belgium, they might, through a process of sifting while on the voyage, lose in weight. Were the present contract merely for the sale of barrels of cement, therefore there would be a foundation for the introduction of evidence as to custom or usage on the question of how many pounds of cement the barrels should contain in order to be a good delivery under such a contract. We think, however, that it will not be disputed that the parties to a contract having reference to Belgian cement have the right to contract as to the exact amount of •cement in weight that should be delivered. In other words, it was entirely competent for the parties to agree, one to sell and the other to purchase a certain number of barrels of cement, and to stipulate in definite terms as to the precise weight of the barrels. When parties so contract, it has been repeatedly held that “ usage will never be admitted to vary or contradict an express contract” (Wigglesworth v. Dallison, 1 Smith L. C. [8th ed.] pt. 2, p. 960, note), or, as expressed in Silberman v. Clark (96 N. Y. 522), where the contract is unambiguous, the meaning of the language used cannot be changed or varied by parol evidence. It will, therefore, be seen that the question presented is as to whether the parties here have contracted in specific terms as to the •quantity of cement that should be contained in the barrels. If we take the language of the contract, we find that this was more than a sale of 8,000 barrels of cement, because there was an express provision that the barrels were “ to weigh 180 kilos,” and the only thing uncertain or ambiguous about the words arises solely from the use of the foreign measure of weight. In the present case, however, this presents no great'difficulty, for there is no dispute about the meaning of a kilo, it being conceded by both parties exactly what it represents in American pounds. There is, furthermore, no question but that the barrels in the three shipments tendered did not come up to the contract as to weight, and it only remains to determine whether it was competent to excuse the failure in complying with the terms of the contract by evidence of usage or custom of the trade, that barrels of less weight were a good delivery. [100] We think that such- evidence was not competent. The principle of law by which such evidence may be introduced, as'concisely stated in Robinson v. United States (13 Wall. 363), is, that evidence as to “ custom or usage was properly received to ascertain and explain the meaning and intention of the parties to a contract, whether written or parol, the meaning-of which could not be ascertained without the aid of such extrinsic evidence, and that such evidence was thus used on the theory that the parties knew of the existence of the custom or usage and contracted in reference to it.” In the present case it is conceded that a kilo is equivalent -to two and twenty one-hundredths and a fraction pounds, and no. explanation is necessary as to the meaning of the language employed. Both parties clearly understood for what they were contracting, and they took the additional trouble to express their intention in precise words. It was not made to appear that the barrels weighed 180 kilos, either in Belgium or at Hew York, the plaintiffs merely claiming that there was an inevitable sifting on the voyage and that delivery was not intended on the Hew York dock, but -on - board ship at Antwerp. Such a contention does no.t aid plaintiffs, for, as stated-, there is no .proof-that the barrels ever contained 180 kilos of cement in Belgium; and there is force in the defendants’claim that the contract specifies the weight which should be delivered in Hew York. ' " The contention of the plaintiffs with regard to the first .of the three shipments in question (the one known as the Salerno ship'ment),- that the defendants should be held for damages for its nonacceptance on the special ground that they had originally rejected that shipment solely for the reason that it had not been made by a certain line of steamers, and the defendants had so notified the plaintiffs, is -also of no momént. As pointed out by the learned judge below, the only evidence of the weight of the barrels of that shipment as well as the others, being the - testimony of the United States government customs weighers, which showed that on arrival the cement was under weight, there was good cause for rejection even if the first refusal was wrongfully made, the plaintiffs not having elected to consider the contract rescinded on notice of the defendants’ first rejection. In bringing this action, therefore, for damages for the defend [101] ants’ refusal to accept the three shipments of cement, the burden of proof was on the plaintiffs to show that the tender made was a good one and within the terms of the contract. Instead of so doing, no evidence was offered, other than that of the bills of lading and the consular invoice, both of which merely referred to the barrels as of 180 kilos, to show that the barrels had ever weighed the stipulated amount, either in Belgium or Antwerp, "the port of shipment, or in Hew York, the port of delivery. Upon arrival when weighed, the shortage was manifest, and the plaintiffs undertook to substitute for evidence of performance evidence of custom to explain why the barrels when they arrived in Hew York were not "up to weight. The burden was on the plaintiffs to show that the contract was fulfilled, and this ivas not shown. Evidence as to the matter of custom, if admissible at all, could only be rightfully received after the plaintiffs had proved themselves able and ready to furnish "the full weight of cement called for by the contract. As stated, we do not think that such evidence as was admitted with regard to custom was competent, and the case of O'Donohue v. Leggett (29 N. Y. St. Repr. 989) is directly in point'. In that case, which was an action on a contract which called for the delivery of 1,700 piculs of coffee and the amount unladen from the ship proved to be but 1,645.50 piculs, the court said : “ The contract was . in no way indefinite or qualified as to the quantity, but the sellers, by means of it, undertook to deliver this quantity, and their contract could not be legally performed by delivering that amount (1,645.50 piculs), as there was no waiver on the part of the defendants to the right to demand full and complete performance of the agreement. Where a contract is clear and definite, as this was in this respect, evidence of custom or usage to change or vary it cannot be legally received.” To summarize, therefore, where the language employed in a contract is vague, indefinite and ambiguous, then parol evidence is competent to explain it; or where trade terms, uncertain or indefinite • in meaning are used, then evidence of trade usage or custom may be resorted to in order to ascertain their intent and meaning. This, however, is but the formulation of a fundamental rule applicable alike to contracts, wills and all written instruments, that what is to be ascertained is the real intent and meaning of the parties to the [102] instrument. The only thing doubtful in the contract under consideration is the word kilo, the measure of weight used- in a- foreign country, Unquestionably it is competent to show its meaning, but when this is ascertained all doubt is removed. There is here, moreover, no> dispute about the meaning of the word, both sides agreeing that it is equivalent to two and twenty one-hundredths and a fraction pounds. Although its precise meaning is thus conceded, the appellants contend that it is competent to go further and show by, parol, or by a trade usagé or custom, that it means something else. The danger .of resort to such evidence is Clearly shown by this record wherein the witnesses differ,, some testifying that it means two and twenty one-hundredths and a fraction pounds, which is its definite and literal meaning, and others that it may be something more or less, thus making it an indefinite and uncertain measure of weight. Although impossible to- reconcile such conflicting testimony, we have some reasons for inferring that the witnesses approached the subject from different points of view; Thus, where cement is sold, not by precise weight but by barrels, it is generally regarded in the trade that it is sufficient if a barrel approximates in weight 180 kilos. ' This contract, however, was not for 8,.000 ■ barrels merely, but was one for the sale of 8,000 barrels, “barrels to.weigh 180 Kilos . gross.” ■; Under such a contract, where the.meaning.of the language used .-is definite and certain, the only result of (admitting .evidence of usage of custom would be to render it ambiguous and to substitute for the contract made one entirely different. We think .the order appealed from should be affirmed, .with costs. ■ Yan Brunt,. R. J.,. and McLaughlin, J.., concurred; Patterson," J., dissented.