Butterfield v. Herren

Lyon, J. The question which first presents itself for'determination, and which, in our opinion, is controlling in the case, is, Does the written contract of the parties for the sale and purchase of .the strips therein mentioned contain an undertaking or warranty by the plaintiffs, either express • or implied, that the quantity thereof in each grade should be proportionately equal to the percentage of the quantity in such grade contained in the six car-loads mentioned in the contract? The undertaking of the plaintiffs is that the strips should .be “ of average quality with the six cars heretofore shipped to said second party [the defendants] as sample of the strips hereby sold,— 855 thousand feet to be six-inch and 145 thousand feet to be four-inch strips.” In this stipulation we find no express undertaking that the proportionate quantity of each grade, as contained in the six car-loads, should be delivered under the contract. The express undertaking is confined to average quality. We look further -into the contract for evidence of the intention of the parties, and. we find stipulations as to the width of the strips .to be delivered under the contract; also that strips of a certain thickness, suitable for three grades of -ceiling, should be received under the contract; that culls should be rejected ; that plaintiffs might reserve three piles of six-inch strips (stating the dimensions of. the piles) and one pile of four-inch strips, all to be of average.quality of those sold; -and that second quality of fencing which defendant might receive under the contract, in excess of twenty per cent, of [244] the whole amount of strips sold, should be paid for at the rate of.seven dollars per thousand feet. It will be observed that neither in the above nor in any other provision of the contract is there any reference to “ siding, third, or thin strips,” which are far more valuable than the fencing grades, nor any language which necessarily suggests the idea that certain proportions in the quomtity of each grade was required. The contract by its terms makes the width, thickness, and merchantable quality of the strips delivered under it material, but it is silent as to the proportion which the quantity of each grade delivered shall bear to the whole. But there are other considerations bearing upon the question. The defendants’ proofs satisfactorily show that the strips belonging to each of the above grades, except No. 2 fencing, were worth more.than the contract-price fpr the whole, which was $12 per thousand feet. Only about twelve per cent, of the six car-loads graded second fencing. Tet the defendants agreed to pay the full contract price therefor up to twenty per cent, of the whole amount delivered under the contract, and the parties were careful to stipulate the price for the excess of that grade over twenty per cent. This shows quite conclusively that the defendants did not think they were binding the plaintiffs by the contract to deliver only twelve per cent, of the inferior grade of strips. Twelve per cent, of second fencing would be less than 100,000 feet, yet the plaintiffs delivered, and defendants accepted, under the contract, nearly 280,000 feet of that grade. This, of course, reduced the quantity of the higher grades by just the excess,— or about 180,000 feet. Now, the defendants, after obtaining the benefit of the lower price for the second fencing grade, secured them by the contract, demand a construction of the contract which will give them, as damages, the value of such 180,000 feet of the more valuable grades in excess of the contract price [245] of $12-per thousand feet. It would be difficult to justify a construction of the contract which will work such a result, especially when it is reasonably clear, from the language employed, that neither party intended it. There is another consideration ténding in the same direction, which is entitled to some weight. If the defendants’ construction of the contract is correct, a computation based on their own testimony will- show that the strips, if furnished in the proportions contended for, were worth about $20 per thousand feet in the market, while the contract price is but $12. It is scarcely conceivable that experienced business men, as the plaintiffs evidently are, could intentionally enter into so improvident a contract. It should further be observed that the purchase by the defendants was of strips then in the plaintiffs’ yard at Med-ford, and the contract provided that, if there were more there than the specified 1,000,000 feet, the defendants might purchase the excess on the same terms, and if there were less than 1,000,000 feet in the yard the delivery of the whole (less the four piles reserved by plaintiffs) should be a full compliance with the contract. These facts tend to show, we think, that the plaintiffs intended to sell, and the defendants to purchase, what is termed a “ mill run lot ” of strips above the grade of culls, without regard to the proportion which the quantity,in any one grade bore to that in another grade, or to the whole lot. If the parties intended differently, they certainly failed to use language in their contract evidencing such intention, but, on the contrary, inserted many provisions therein which indicate a different intention. The only words of the contract upon which even a plausible argument can be framed in support of defendants’ construction of the contract are the words, “ to be of average quality with the six cars,” etc. That construction would require us to add to the above clause the following or its [246] equivalent: “ And the quantity of each grade shall bear the same proportion tó the whole quaritity delivered that the quantity of the same grade in the six cars bears to the-aggregate quantity of all the grades contained in such-cars.” Did the contract indicate less clearly than it does the opposite construction, we should still be of the opinion' that the words “ average quality ■” therein should not be-construed to mean “ proportionate quantity,” but only that the strips should be so assorted or culled that those delivered should equal in quality those contained in the six carloads, without any reference to the proportionate quantity of each grade. For the reasons above suggested we conclude that the theory of the defendants’ counterclaim is negatived by the written contract of the parties, and hence that the court did not err in denying them any relief under such counterclaim. That being disposed of, there is no controversy as to the amount the plaintiifs are entitled to recover,— or, at least, the proof is conclusive on the subject. The court directed a verdict for the proper amount. By the Court — The judgment of the circuit court is affirmed.