Cabot v. Winsor

Bigelow, C. J. The paper or writing on which the plaintiff relies in support of his case is not a mere bill of parcels, designed to specify only the quantity and price of articles sold, nor was it so intended and understood by the parties. It is a written memorandum or contract of sale, drawn up by a broker as the agent of both parties, in the form of what is usually termed a “ sold note,” and designed to embody the terms and conditions of a bargain for the sale of merchandise, so as to bind the parties by an agreement valid and sufficient under the statute of frauds. To this contract, the defendants have bound themselves by then written acceptance of its terms. 550 We are unable to perceive any ground on which it can be held that this contract falls within any of the exceptions to the familiar and well established rule which excludes all paroi evidence in the construction of the written agreements of parties. The language in which it is expressed is not technical, nor is it alleged to have any peculiar or local signification, or to have been used with reference to any custom or usage, which would vary or change its natural and ordinary meaning. Nor are the terms of the contract rendered uncertain or doubtful by reference to extrinsic facts, so as to create a latent ambiguity. The words “ more or less,” which seem to have given rise to the contention between the parties, have a plain, ordinary, and popular signification, and are often used in contracts relating both to real and personal estate. As applied to quantity, they are to be construed as qualifying a representation or statement of an absolute and definite amount, so that neither party to a contract can avoid it or set it aside by reason of any deficiency or surplus, occasioned by no fraud or want of good faith, if there is a reasonable approximation to the quantity specifically named as the subject of the contract. In sales of merchandise, especially in large quantities, where it is impossible to ascertain with precise accuracy the number or weight of the articles before concluding the contract for their purchase,At is necessary and usual to insert the words “ more or less ” or “ about ” in connection with the specific amount, which forms the subject of the contract, in order to cover any variation from the estimate, which is likely to arise from differences in weight, errors in counting, diminution by shrinking, or other similar causes. But in such cases, paroi evidence is not admitted to show that the parties intended to buy and sell a different quantity or amount from that stated in the written agreement. On the contrary, it is held to be a contract for the sale of the quantity or amount specified; and the effect of the words “ more or less ” is only to permit the vendor to fulfil his contract by a delivery of so much as may reasonably and fairly be held to be a compliance with the contract, after making due allowance for an excess or short delive y arising from the usual and ordinary causes, which prevent ? 551 accurate estimate of the weight or number of the articles sold or as it is sometimes briefly expressed, it is “ an absolute contract for a specific quantity within a reasonable limit.” What is a reasonable limit and a substantial compliance with such contract, if the facts are not in dispute between the parties, is a question for the determination of the court. Cross v. Eglin, 2 B. & Ad. 106. Moore v. Campbell, 10 Exch. 323. Bourne v. Seymour, 16 C. B. 336. Stebbins v. Eddy, 4 Mason, 414, 419. Pembroke Iron Co. v. Parsons, 5 Gray, 591. Applying these rules to the contract in question, its construction is clear and unambiguous. It was an agreement for the sale of five hundred bundles of gunny bags, under which, by the term “ more or less,” the plaintiff had a right to deliver a number which should reasonably approximate to that number; and, in the opinion of the court, a variation of five per cent, in so large a quantity was not such a deficiency as to fall outside of the fair and reasonable limit of short delivery. By proof of a delivery of a portion of the four hundred and seventy-five bundles, and a readiness to deliver the residue of the lot, the plaintiff proved a full compliance with the terms of his contract. The view we have taken of the contract and of its true construction renders it immaterial to determine the competency of the evidence, offered by the plaintiff, to show that the bags intended to be comprehended in the written contract were those in the possession of the plaintiff, which had not been compressed. Without-this proof, the plaintiff was entitled to recover the full amount claimed by him. But this evidence was not offered to vary, explain or add to the written contract, but only to point out and designate the subject-matter to which the written agreement related. For this purpose, we are inclined to think it was competent. By offering it for this purpose only, it is clear that the plaintiff did not waive the right to object to proof on the part of the defendants which should entirely set aside the written contract for the sale of five hundred bales, and substitute in its place a verbal contract for the purchase of only two hundred. The case bears no resemblance to Shaw v. Stone, 1 Cush. 228. Exceptions overruled.