W. T. Tilden Co. v. Densten Hair Co.

Braley, J. The defendant excepted to the master’s report because of his general conclusion from facts previously found, that it had violated the contract. But the exceptions are not well founded. It was still a question of fact even if deducible from other facts which could be properly treated as evidence on the principal issue, whether the defendant had failed in performance. Jones v. Keen, 115 Mass. 170, 181. Perry v. Pye, 215 Mass. 403. No exceptions having been saved by the plaintiff, the question for decision is whether upon the report and supplemental report the bill can be maintained. The plaintiff asked specific performance of a contract for the [328] delivery during the term of one year, of the defendant’s entire production of “washed brown calf hair” of a standard or quality alleged in the bill to be defined in the letter written by the plaintiff, and accepted by .the defendant. But the letter fails to state the standard. The only reference to the grade of hair is found in the words “standard as has been agreed between us,” and under the general phrase “ all other terms and conditions same as contract now in force,” all undefined terms required to complete the contract as understood by the parties are included. Hebb v. Welsh, 185 Mass. 335. It appears from the report that the contract for the preceding year, which by reference forms part of the contract in suit, covered “washed brown calf hair,” to be “separated into whatever grades” the plaintiff desired, and to ascertain the grades paroi evidence became admissible. Lipsky v. Heller, 199 Mass. 310. Graves v. Broughton, 185 Mass. 174. The master accordingly found on the evidence before him, that the words “calf hair” have a well defined trade meaning, and having been so employed by the parties the general trade usage formed part of the agreement. Barrie v. Quinby, 206 Mass. 259, 264, 265. The defendant is shown by the report to have been engaged in the production of washed animal hair. It took the hair not only of calves, but of other cattle, as well as of colts as it came from the hide, and by cleansing and assorting prepared the hair for the market. The difference in the finished product between calf hair and the other varieties is found to have been so slight, that competent experts differed as to the proper classification. The general conclusion, that the defendant is willing and able to tender full performance, forces the plaintiff to rely upon a sale by the defendant of three carloads of hair to other parties, as being sufficient to show a violation of the contract. But the master also finds, that this sale consisted of hair within the questionable or uncertain grade, and that the defendant has acted in good faith. The whole tenor of the report also shows, that the true construction of the contract when read in the light of the circumstances, as a whole is doubtful. Where this appears, there is no better guide than the contemporaneous interpretation of the parties. The finding is explicit, that under all the contracts referred to in the report, the plaintiff never has undertaken the classification, but with its full acquiescence the defendant through competent experts has graded the [329] hair called for, and in the absence of any evidence of a failure of the defendant’s employees to exercise their honest judgment, the mode adopted by the parties is entitled to great weight if indeed it is not controlling. Cambridge v. Lexington, 17 Pick. 222, 230. Mitchell v. Wedderburn, 68 Md. 139, 145. Helme v. Strater, 7 Dick. 591, 603. Topliff v. Topliff, 122 U. S. 121. But, even if the plaintiff is not thereby estopped from relying on a construction which requires the defendant to deliver as brown calf hair all hair which competent experts might determine as being within the questionable grades, it is entitled only to the proportion of such hair measured by the standard of delivery adopted under the prior contract. The words, “ standard as has been agreed between us” speak only of the past. What that standard was, depended in the absence of specific definition in the contract itself, upon the character and quality of deliveries under the preceding contract, to which no objection has been made by either party. The ruling of the single justice was right. The order of recommittal, as shown by the decree, was for the purpose only of ascertaining upon this reasonable and just basis the percentage which the plaintiff properly might claim. It had the burden of proof, and having failed as appears from the supplemental report to satisfy the master that taking the actual deliveries of the previous year as the standard, the defendant had failed to deliver the plaintiff’s proportion of hair within the debatable class, there is no ground upon which relief can be granted or damages assessed. Sarkisian v. Teele, 201 Mass. 596. The interlocutory decree overruling the exceptions is affirmed, and a decree is to be entered confirming the reports and dismissing the bill with costs. Ordered accordingly.