Newell v. Nicholson

De Witt, J. The issue upon which the case was tried must be kept in mind at the outset. The defendants claimed a contract with certain conditions. The plaintiffs denied that any such conditions existed, and demanded a recovery as upon an ordinary plain sale and delivery of personal property. There was a direct conflict in the evidence between plaintiffs and defendants upon this issue. There was ample evidence before the jury to sustain their finding that the contract was as defendants claimed it to be. That question is therefore now at rest. Sections 632 and 633 of the Code of Civil Procedure (Comp. St. 1887), are as follows: “Sec. 632. For the proper construction óf an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret. “Sec. 633. The term of a writing are presumed to have been used in their primary and general acceptation, but evidence is, nevertheless, admissable that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. ’ ’ The conditions attendant upon the sale were expressed, as above stated, at one time, in the language, “Don’t sell we to exchange any goods that don’t sell;credit for same,” and at another time, with the words, “Sales guaranteed.” To one not wholly familiar with mercantile transactions, these words do not seem to be wholly clear. Over the objection of the [393] plaintiffs the court took the testimony of a number of merchants and salesmen and business men as to the meaning of these words. In this we think the court committed no error. By the authority of the sections of the Code of Civil Procedure above quoted, the court took evidence to show that the' words had' a technical or peculiar signification, and were so used and understood in the particular instance before the court. There was also a conflict in the testimony of the mercantile gentlemen who testified as to the meaning of these words, but there was ample evidence introduced showing that the words meant that, if the goods were not sold, or if they proved to be, as one witness said, not good sellers, the defendant might return them and have credit for their value. It is apparent from the verdict that the jury believed this line of testimony. Therefore, as far as we are concerned in this review, the contract was a conditional one, as defendants claimed, and they, the defendants, had the right to return the goods unsold, and to have credit for the same. We think the evidence is also wholly sufficient that defendants constantly insisted that plaintiffs should take back the unsold cigars and give credit for their value. This brings us to another point in the case. It appears that the defendants were indebted to the plaintiffs for some §95, the difference between the value of the cigars which defendants had actually sold and the sum which it had remitted to plaintiffs. Plaintiffs now contend that they should at least have had judgment for this §95. But for plaintiffs to claim judgment for the §95 is wholly inconsistent with and contrary to their position in the case, and the position which they took in endeavoring to sustain their pleadings by evidence. If plaintiffs are to have judgment for the §95, that would be a ratification by them of defendants’ view of the contract. But that view they have always contended against. By pleadings, evidence, and argument, plaintiffs have insisted that the sale was a straight-out one, and that they should recover the full value of all goods sent to the defendants. Assuming this position, they cannot also take the contradictory one of ask [394] ing for a recovery in this action of a sum which could be due only upon another and different contract, and one wholly inconsistent with the plaintiff’s contention. (Newell v. Meyendorff, 9 Mont, at page 262; State v. Judge of Second Jud. Dist. Ct., 10 Mont. 460; State v. Board of Canvassers of Choteau Co., 13 Mont. 34; Reed v. Poindexter, 16 Mont. 294.) It may be that they could recover in another action, but certainly not in this. The judgment and order denying a new trial are affirmed. Affirmed. PembertoNj C. J., concurs. Hunt, ¿T. having tried this case as district judge, does not participate in this decision.