Tufts v. J. Greenewald & Co.

Cooper, J., delivered the opinion of the court. The court did not err in permitting the defendant Greenewald to testify that the contract made between the firm and the agent of the plaintiff was for the purchase of a soda fountain then represented by the agent to be in stock and capable of immediate shipment. The testimony did not tend to contradict the written agreement but to apply it to its subject-matter. There is nothing in the agreement or order of shipment indicating that the plaintiff was to manufacture for the defendant a soda fountain, but because he was a manufacturer and known to be such by the defendants, he assumed that the shipment was to be as soon “as possible” after the fountain should have been made by him, and because it was so shipped that the defendants were by their contract bound to accept. The plaintiff thus unconsciously appeals to the same principle from which his objection seeks to preclude the defendants, viz.: that a contract shall be interpreted by the. circumstances and conditions ■under which it was entered into. It is not competent to contradict or vary the written words which the parties have selected as the exponent of their contract, but where the language used is sus [365] ceptible of different meaning, the law says it means what the parties understood it to mean. In the case before us the terms of the agreement may refer indifferently to a soda fountain to be thereafter manufactured and consigned to the defendants, or to one then in existence to be immediately forwarded. The plaintiff says that by reason of the fact that he was a manufacturer, he construed the contract to mean that the fountain was to' be manufactured and sent to the defendants, and that this was done as soon as practicable. The defendants say that they intended to order a fountain then in stock and ready for immediate shipment, and that this was well understood by the agent of plaintiff. The testimony on their behalf, accepted by the jury as true, established this fact. Such evidence was competent to the issue joined, and the verdict, being fully supported by it, ought not to have been disturbed by the court. The motion for a new trial was therefore properly overruled. The judgment is affirmed.