Penn Steel Casting & Machine Co. v. Wilmington Malleable Iron Co.

Spruancb, J:— As announced yesterday, the contract between these parties is evidenced by the defendant’s order of December, 19th and the plaintiff’s acceptance of the same of December 20th. The order required “Quality and workmanship to be up to standard.” The purpose of the question is to show that the paper, shown to the witness, contains a description of the standard referred to in the defendant’s order. The written contract makes no reference to any other paper, and no other can be incorporated into or made a part of it in the mode proposed. As the case now stands it is to be presumed that the standard mentioned in the defendant’s order was a standard of quality and workmanship known to the trade. [340] If it shall hereafter appear that the parties agreed in writing that the paper now produced should he a part of the contract, it will be admitted ; or if it shall hereafter be proved that there was in fact no standard of quality and workmanship known to the trade, the Court will consider the- question whether the contract should on that account be allowed to fail. A majority of the Court are of the opinion that the question now propounded to the witness is not admissible, and it is so ruled. Grubb, J:— I concur with Judge Spruance in the view he has taken. My understanding is that the question objected to has been asked for the purpose of virtually incorporating in the written contract this proposed paper which is not referred to in any way in that written contract. If it is offered to make this virtually a part of the written contract which we are to construe in connection with this paper, and which the jury are to consider as so construed, then I do not feel that this question is admissible for that purpose. Therefore I am opposed to admitting the question for that purpose. In 1 Greenleaf on Evidence, Section 275, the author says : ‘ ‘ Parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.” And in Section 278 of the same volume, the learned author lays down this general principle : ‘ ‘ The terms of every written instrument are to be understood in their plain, ordinary and popular sense, unless they have generally, in respect to the subject matter, as by the known usage of trade or the like, acquired a peculiar sense, distinct from the popular sense of the same words; or unless the context evidently points out that, in the particnlar instance, and in order to effectuate the immediate intention of the parties, it should be understood in some other and peculiar sense. ’1 In another place he also states that, in regard to words which have two meanings, the one common and universal, and the other technical and familiarly known in a particular science or trade, parol evidence is always admissible to show that the [341] words were used in the latter sense, and to ascertain their technical meaning in such science or trade, My view as to this matter now before us is that in the phrase “quality and workmanship to be up to standard,” the words, 1 ‘up to standard’ ’ in the written contract, mean a standard in the general sense as understood among those who deal in, and are familiar with the quality and workmanship of this sort of article. If that is the plain import of the word “standard,” then I do not think that the counsel for the defense, in this instance, can be allowed to show that it has some other and particular meaning as contemporaneously understood by the parties outside of their written agreement or contract. The paper now objected to has not been mentioned or referred to in the written agreement (nor has any peculiar or special meaning of standard), for the agreement speaks generally only of a standard. A standard ex vi termini, implies a measure or test which has the general concurrence and recognition of the class of persons engaged in the particular business or trade under consideration. Considering how long established and widely known has been the particular business involved in the case before us, it is not unreasonable for us to presume, until the contrary is shown, that some well known standard was, at the time of making this contract, generally recognized in said business or trade. Therefore, as this Court is called upon, in the first instance, now to construe said contract, we must give it the construction that the word standard therein imports, prima facie, a general standard as commonly recognized in the business in question, and not some other standard privately understood by the parties, or specially employed in the business of the Wilmington Malleable Iron Company, the defendant, or in the business of the Penn Steel Casting and Machine Company, the plaintiff. If it be true that such is the natural import of the language as actually written in this contract, then this Court ought to say so, because it is our duty to say so at this stage of the case when the Court is asked to determine, not what shall be the effect of the proposed testimony if we do admit it, but whether it shall be admitted to the jury at all and have any effect in the case. But, inasmuch as [342] the written contract does not define or describe the precise nature or character of this implied general standard, said construction of this contract will not preclude either the defendant or the plaintiff from showing by evidence, aliunde, its exact nature and character. Nor will it preclude the defendant from rebutting it by showing, by the like evidence, if he can (but which has not been shown), that there is no general standard of quality or workmanship of this particular article recognized among those engaged in the business. If he had shown that, then he might the better contend that standard in said contract had a special meaning, but no such generally used or recognized' technical meaning, given it, and that therefore he should be entitled (but I do not say so) to prove it under the alleged rule of evidence that where the parties in a written contract use a particular word, having other than such technical meaning, they may show the peculiar meaning which they agreed aliunde it should have, and that when they used that word in making the contract, they used it in contemplation of that particular meaning. But, however that may be, clearly, you cannot show, in the judgment of a majority of this Court, that standard, in this instance, has such a peculiar meaning before you show (as has not yet been done) that it has not the general meaning in said trade, which we have stated the word itself imports. I think I have said all, probably, that is necessary to make the point clear to the counsel engaged on both sides, and to state my position on the question now being adjudicated by the Court. So far as the purpose, as I understand it, of asking the question is concerned, I do not think the question can be admitted and an answer given before this jury at the present stage of this proceeding.