Whitney v. Boardman

Devens, J. The expression in the contract, by which the defendants agreed to purchase the Cawnpore buffalo hides with [247] “ all faults,” was one of such a character, that, if in common use and having a well established meaning in the trade in such articles, such meaning might properly be shown. It is not necessary that terms should be technical, scientific or ambiguous in themselves in order to entitle a party to show by paroi evidence the meaning attached to them by the parties to the contract. Whitmarsh v. Conway Ins. Co. 16 Gray, 359. Miller v. Stevens, 100 Mass. 518. Swett v. Shumway, 102 Mass. 365. Nor does it appear by the exceptions that any evidence was admitted that gave to these words any meaning different from that which the presiding judge attributed to them in the instruction given by him, based upon the hypothesis that the jury might find that there was no meaning determined by the general usage of trade. This instruction substantially was that while the plaintiffs must prove that the hides were “ Cawnpore buffalo hides,” known and sold as such, yet if the defendants got the articles contracted for, having agreed to take them “with all faults,” they were bound to take them with “ all defects arising in any way either from defects in the cure, or in the packing, or in the shipping or transporting of the hides, not however included in the term sea damage.” For the contingency of damage by sea an allowance was to be made according to the contract, in the price. The defendants argue that this instruction was defective, and that it was not only necessary for the plaintiffs to show that these were Cawnpore hides, but also that they were “ properly cured as such hides should be cured, properly packed and of merchantable quality.” But the phrase “ with all faults,” cannot be limited, as the defendants contend, “to all such faults or defects as the thing described ordinarily has.” That would be to deprive it of force entirely. Its meaning is such faults or defects as the article sold might have, retaining still its character and identity as the article described. The authorities cited by the defendants sustain this view, and not the one contended for by them. Thus in Shepherd v. Kain, 5 B. & Ald. 240, cited in Henshaw v. Robins, 9 Met. 83, it was held that in the sale of a copper-fastened vessel ' with all faults,” the term meant such faults as a copper-fastened vessel might have, but that it would not cover the sale of a vessel not copper fastened. The only other authority cited by the defendants on this point is Schneider v. Heath, 3 Camp. 506, which [248] decides no more than that “ to be taken with all faults ” cannot avail a vendor who knew of secret defects and used means to prevent the buyer from discovering them. A similar limitation was given by the presiding judge in the present case. Nor, if the phrase “ with all faults ” had not been in the contract, is it easy to see how the defendants could have demanded anything more than that the article bought by them should answer the description of “Cawnpore buffalo hides.” Gossler v. Eagle Sugar Refinery, 103 Mass. 331. Boardman v. Spooner, 13 Allen, 353, 359. The defendants further contend that the rule of damages given by the court, which was the contract price, deducting therefrom the net proceeds of the auction sale of the hides made by the plaintiffs, was erroneous. But by no other rule would the plaintiffs have been indemnified for their loss by the non-compliance of the defendants with their contract. They were not obliged to keep the goods, and if they sold them, the expenses of such sale constitute a charge upon them caused by this non-compliance, whether it was a private sale or one by auction. Of the intention of the plaintiffs to sell at auction the defendants were notified ; it does not appear to have been an unusual mode of disposing of such goods; and having violated their contract, the defendants cannot complain of the expenses which have thus been occasioned. Exceptions overruled.