Steidtmann v. Joseph Lay Co.

Mr. Justice Dunn delivered the opinion of the court: This writ of error is brought here under the provision contained in section 119 of the Practice act, that in all cases in which the justices of the Appellate Court are divided in opinion upon the law or facts,, if final judgment is rendered in the Appellate Court, the cause may be removed to the Supreme Court by appeal or writ of error. The amount for which judgment was rendered by the Appellate Court was less than $1000, but under the provisions of this section the amount is immaterial. Section 120 of the Practice act provides that if the Appellate Court shall make a final determination of any cause, except in chancery, as the result of a finding of facts different from the finding of the trial court, such Appellate Court shall recite in its final judgment the facts as found by it. Where a judgment is reversed by the Appellate Court on the ground that it is not sustained by the evidence, it is the duty of the court to recite in its final judgment the facts as found by it. Where the judgment is reversed on account of any erroneous ruling on any question of law arising on the trial, the cause should be remanded for a new trial. ( Wilbor v. Bwen, 183 Ill. 626.) The Appellate Court made what purports to be a finding of facts, as follows: “And the court, upon the allegations and proofs in the record in this cause contained, doth find the issues for the appellant, and doth further find that appellee, in consideration of the sale and delivery to it by appellant of certain merchandise, became liable to pay for the same in accordance with its contract to that effect.” This is no finding of any ultimate fact whatever. The terms of the contract were the very thing in dispute, and to say that the defendant became liable according to its contract determines nothing. It is manifest that the .judgment of the Appellate Court turned, not upon any question of fact, but upon the construction to be given to those parts of the letters of the parties in regard to the customs duty. The trial court held that by the terms of those letters the plaintiff was bound to pay the duty and the Appellate Court that he was not, and this was a question of law. It was assigned for error in the Appellate Court that the trial court erred in refusing to admit proper evidence offered by the plaintiff. The plaintiff offered to prove by the depositions of witnesses taken in Hamburg and the testimony of witnesses engaged in the import trade in Chicago, that the meaning of the expressions, “laid down here at Ridgeville, Indiana,” “free at Ridgeville, Indiana, U. S. duty unpaid,” “f. o. b. Ridgeville, Indiana,” and “free at Ridgeville, Indiana,” did not differ in meaning, and according to the common, universal and exclusive understanding of merchants and importers throughout the United States and at Hamburg, their meaning was that the seller was to pay the cost of packing and transportation to Ridgeville, Indiana, and that the expense of customs duty on the goods was to be borne by the purchaser, without deduction from or credit on the purchase price of the goods as quoted. On objection by the defendant the court excluded the evidence. The testimony of witnesses is admissible to explain not-only technical words of art or science, but words or phrases having a local meaning or a special meaning in a particular calling, trade, business or profession. Such evidence does not contradict or change the written instrument. The presumption is that such terms were used according to their understood meaning in the place or the business with reference to which the contract is made, and evidence as to such meaning is the only method of ascertaining the intention of the parties in entering into the agreement. (1 Greenleaf on Evidence, sec. 280; Leavitt v. Kennicott, 157 Ill. 235; Reed v. Hobbs, 2 Scam. 297; Lowe v. Lehman, 15 Ohio St. 179; Myers v. Walker, 24 Ill. 134.) A person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business. (Collins Ice Cream Co. v. Stephens, 189 Ill. 200; Chisholm v. Beaman Machine Co. 160 id. 101; Leavitt v. Kennicott, supra.) And this is so whether he knew of the custom or not. (Samuels v. Oliver, 130 Ill. 73; Taylor v. Bailey, 169 id. 181; Lyon v. Culbertson, 83 id. 33; Doane v. Dunham, 79 id. 131; Bailey v. Bensley, 87 id. 556.) Such general custom and technical meaning of words may be proved without being specially pleaded. (Stewart v. Smith, 28 Ill. 397; Lowe v. Lehman, supra.) The evidence offered should have been admitted. On April 22, 1905, the plaintiff in error mailed to the defendant in error a draft for $807.08, “to close account on last shipment.” Defendant in error collected the draft, and it is now insisted that the account was thereby settled in full. In an earlier letter the defendant in error had stated that Frederic C. Haisler, of Chicago, would act as arbitrator in the matter. The letter of the plaintiff in error stated that the draft was included “as per conclusion arrived at in conversation with your Mr. Haisler and our Mr. S. C. Lay,” and expresses the trust that Mr. Haisler’s “letter to you will fully explain regarding our understanding. ” There is no evidence that any conclusion was arrived at between Mr. Haisler and plaintiff in error, but, on the contrary, in acknowledging receipt of the draft defendant in error writes: “We are very sorry to hear from Mr. Frederick C. Haisler that you do not wish to have the matter about the duty arbitrated.” While it is manifest that the amount of the draft was all the plaintiff in error admitted to be due, yet the circumstances were not such as to indicate to the defendant in error that the draft was sent upon condition that its acceptance should operate as a discharge of the claim. Since the trial court erred in the exclusion of the evidence above mentioned, the Appellate Court should have reversed the judgment and remanded the cause for another trial, unless, it found the facts to be different from the facts as found by the trial court and incorporated such facts in its judgment. The record of the Appellate Court contains no such finding, and its judgment will therefore be reversed and the cause remanded to that court for further consideration. If, when the case comes again before that court, the facts are held by the Appellate Court to be different from the finding of the trial court, that court may, of course, found its judgment upon such different findings, and the facts so found must be recited in the judgment; but if the facts are not found different from the finding of the trial court, the judgment should be reversed for the errors occurring on the trial and the cause remanded to the county cour*' Reversed and remanded.