Wallace, Muller & Co. v. Leber

— 318 — The opinion of the court was delivered by Garrison, J. The contract of the defendants, Leber & Meyer, by which they agreed to indemnify the plaintiffs against any duty upon four thousand bags of Dutch sugar in excess of $1.95 per hundred pounds was an independent undertaking upon their part, made in their individual capacity and not as agents for Bunge & Company, the vendors of the sugar. The fact that as vendors’ agents they had brought about the sale of the sugar did not have -the effect of reading into their contract of indemnity with the plaintiff any provision of the contract of sale made between Bunge & Company and the plaintiffs save, as by ajff reference thereto, certain provisions of the earlier contract were legally incorporated in the later one. This is not a mere rule of evidence governing the admission of testimony; it is a matter of substantive law touching the effect of written contracts, and, as such, present? normally, and in the absence of equivocal language, a court question. The question in the present case was whether the defendants’ contract with the plaintiffs was an absolute agreement of indemnity, or whether it was a qualified undertaking conditioned upon the performance by Bunge & Company and the plaintiffs of a provision in their contract of sale by which certain certificates from the refiners of the sugar were to be furnished by Bunge & Company in exchange for acceptances of their bills by the plaintiffs’ bankers. The language of the defendants’ contract is free from ambiguity. It is brief, and in these words: “New York, September 18th, 1897. Messrs. Wallace, Muller & Company, Ltd. 48 Pearl Street, City. Dear sirs: In accordance with our agreement we hereby guarantee to you that the duty on 4,000 bags of Dutch sugar bought to-day from Messrs. W. Bunge & Co., Rotterdam, through our mediation, shall not exceed $1.95 per 100 lbs. Any excess in duty which you may be called upon by the government to pay will be promptly refunded by us to you without any objections whatsoever. Yours very truly, Leber & Meyer.” This, on its face, is an absolute undertaking, subject only, as all contracts are, to — 319 — the identification of its subject-matter, Lo which end the contract of sale is sufficiently indicated to authorize reference to-•be made to it for the purpose of ascertaining what sugar the plaintiffs had that day bought of Messrs. Bunge & Company, Botterdam, through the, mediation of the defendants. To that extent, the language of the contract of sale is to be read into the contract of indemnity. The defendants, however, insist that by such reference the entire contract of sale, with all ■ of its incidents and accompanying provisions, became legally .embodied in their contract of indemnity as condiiions precedent, failure to perform any one of which by Bunge & Company or the plaintiffs would absolve the defendants from their bargain with the latter; or, if this be not so, that at least a latent ambiguity was established that opened the case to proofs as to the intention of the parties and the meaning of their contract with the consequent submission of the entire question to the jury. The learned trial justice ruled against each of these contentions^ holding in effect that there was no ambiguity in the defendants5 contract and-that the requirement as to ¿certificates, contained in the contract of sale, did not enter into the defendants5 undertaking. This ruling of the learned justice was clearly right. The contract of sale covered three general subjects—(1) the sale by Bunge.& Company of four thousand bags of sugar, described as “Dutch Granulated Sugar, W. S. E.,55 which, it is admitted, meant Western Sugar Be-finery. The specification of prices and dates of shipment from Holland then followed; (2) a stipulation by the vendees as to the terms of the payment by them and as to marine underwriting to be affected by them; (3) a statement that certain documents, among which were the certificates from the refiners, were to be given to plaintiffs5 bankers in exchange for their acceptance of the vendors5 drafts upon them. Of these several provisions it will be observed that the only one bearing upon the identification of the subject of the defendants5 indemnity was that contained in the first clause, which set forth the date of the sale, the mediation of the defendants, the number of bags, to wit, four thousand, — 320 — 'the name and description of the sugar itself, to wit, “Dutch Granulated Sugar, W. S. B.,” together with the prices and dates of shipment. All of these matters of description, as has already been said, are deemed to bfe incorporated in the defendants’ contract of indemnity by the simple reference to its subject-matter as “4,000 bags of Dutch sugar bought today of Messrs. Bunge & Co., Botterdam, through our mediation.” This fully complies with the call of the reference, and exhausts its capabilities. The other treaties between Messrs. Bunge & Company and the plaintiffs, inserted in their contract of sale, but not conducive to the establishment of the identity of the subject of the defendants’ indemnification, are not within the scope of the reference contained in the latter contract, and cannot, by any rule of law, be imported into it, either to enlarge or to restrict its operation or effect. All of the testimony, therefore, that was offered as to tariff regulations at different periods, and as to the intention of the defendants that their agreement to indemnify should be inoperative under certain contingencies, was simply nugatory in view of the ruling of the trial court upon the lines just indicated and approved. The question of the meaning and effect of the defendants’ contract was properly withheld from the jury and was properly decided by the trial court, the ineffective testimony that was admitted going for nothing. No error was committed by the trial court in dealing with this branch of the case. The question whether the sugar upon which the plaintiffs paid duty was that sold by Bunge & Company to them and referred to in the defendants’ contract with the. plaintiifs was properly left to the jury. This was the main ground rrpon which the motion to nonsuit was rested, it being contended then, and before this court, that Dutch sugar was sugar that was both grown and refined in Holland; that there was no evidence that the sugar received from Bunge & Company had been refined in Holland, or that it was the product of the Western Sugar Befinery. Upon each of these proposi — 321 — tions there was testimony that raised an issue of fact. This rendered the submission of the ease to the jury upon these points the only proper judicial course. That the defendants’ contract was not without consideration has already been decided in the earlier case referred to and reported in 36 Vroom 195. The failure of Bunge & Company to present the required certificates in exchange for the acceptance of its drafts has already been considered in this opinion. There was, therefore, no error in the refusal of the trial court to nonsuit the plaintiffs. Under a further assignment of error, based upon a proper bill of exceptions, the defendants submit that the trial court erred in refusing to permit them to read to the jury as the testimony of a witness examined in the cause the deposition of Charles li. Waller, that had been taken by the plaintiffs, but had not been offered by them on the trial. Upon the abstract proposition upon which this contention is based I concur in the views advanced by counsel for the defendants! The deposition had been taken upon notice given by the plaintiffs under section 45 of “An act concerning evidence.” Pamph. L. 1900, p. 375. Section 51 of that act provides as follows: “51. The examination of any witness, by commission or deposition taken, returned and filed, as provided for in this act, shall be as competent evidence in the cause in which it shall be taken as if such witness had been examined in open court, on the hearing or trial thereof, * * and if the testimony be taken under the forty-fifth section of this act, proof being made that notice of the taking thereof was given as therein prescribed.” I think that the fair meaning of this language, and the practicable rule to be deduced from it, is that the testimony so given is to be taken as testimony given in the cause and not merely as information obtainable by a party in aid of his line of action or defence, as is the case with interrogatories proposed under the three hundred and fort3r-first section of the Practice act, wherein it is 'expressly provided that “the answers shall be evidence in the action if — 322 — offered as such by the party proposing the interrogatories, but not otherwise.” One practical difficulty that would result from the contrary view is of itself almost conclusive, viz., that if the party to whom notice of taking depositions had been given could not rely upon his right to use the testimony so adduced, he would in all cases be obliged to retake the «ame proofs, a result so onerous, and, in most cases, so needless, that it cannot well be deemed to have been within the legislative intent. A further practical .difficulty in such contrary rule would be that documentary evidence, exhibited' before the officer taking a deposition and annexed by him and returned with the deposition so taken, under section 49, could not be produced upon the retaking of the deposition which such contrary rule would render necessary. Finally, the requirement that such deposition, when taken, shall be forwarded or delivered to the judge of the court in which the action is pending, or be filed with the clerk thereof, is a significant indication that thenceforward such testimony is to be regarded as part of the files of the court, subject, so long as it so remains, to judicial rulings as to its competence, but not to the mere will of either of the parties as to its production. The practice of removing depositions, from the files, before trial, which has been the subject of adjudication in other jurisdictions, need not now be considered. The contention of the defendants in the above respects is, in the main, supported by the cases decided elsewhere, although the matter must, in its nature, be largely one of special statutory construction. Stewart v. Hood, 10 Ala. 600; Ansonia v. Cooper, 66 Conn. 184; Rucker v. Reid, 36 Kan. 468; Adams v. Russell, 85 Ill. 284; Pelamourges v. Clark, 9 Iowa 1; Hale v. Gibbs, 43 Id. 380; Bank v. Rhulasel, 67 Id. 316; Little v. Edwards, 69 Md. 499; Converse v. Meyer; 14 Neb. 190; Polleys v. Insurance Co., 14 Me. 141; Greene v. Chickering, 10 Mo. 109; McClinlock v. Curd, 32 Id. 411; Weber v. Kingsland, 8 Bosw. 415; Jordan v. Jordan, 3 Thomp. & C. 269; O'Connor v. American Iron Mt. Co., 6 Smith, P. F., 234; Bank v. McSpedon, 15 Wis. 629. — 323 — There are a few decided cases that hold the contrary view, either upon the language of special rules or statutes or upon general grounds that do not commend themselves in their practical aspect. The result of my examination is that the trial court acted upon an erroneous view of the general right of the defendants to use the .deposition in question. Notwithstanding, however, this errancy in judicial reasoning, the defendants were in nowise injured, for the reason that the deposition itself contained no competent testimony bearing upon any matter of defence open to them. The direct testimony of the witness who was examined was strictly corroborative of the plaintiffs’ contention as to the trade significance of the term “Hutch Granulated Sugar.” The expressions of the witness upon cross-examination, which was what the defendants desired to exhibit to the jury, were not in contradiction or even modification of his testimony in chief upon this point, but were, at best, non-expert opinions as to the persuasive force that might be accorded to the defendants’ contention that certain changes in the tariff law would impart to the trade name in question a significance that it did not previously possess. This was matter of argument, not of testimony. The refusal of the court, therefore, to permit the reading of the deposition, while placed upon an untenable ground, did not deprive the defendant of any legal evidence to which he was rightfully entitled. A further point argued for the defendants was that the trial court erred in its refusal to charge the jury that if they believed “that by the term 'Dutch Granulated Sugar’ the parties to the contract intended different things, and that if their intentions in this regard were both reasonable and justifiable under all the circumstances, their verdict must be' for the defendants.” In the absence of equivocal language, which is the case here, the meaning of a written contract is for the.court, whose treatment of the ‘contract in issue has already been disposed of with approval. — 324 — The defendants also contend that the court should have charged to the jury the following request: “From the failure of plaintiffs to call Mr. Neumark as a witness, you are entitled to infer that if called as a witness his testimony would not have been favorable to the plaintiffs.55 This request was properly ignored. The court properly refused to charge the following’ request: “If you believe that'the plaintiff would have made the contract of purchase of the 18th and 24th of September even without the agreements of guaranty upon which this suit is brought, your verdict must be for the defendants.55 Further errors are assigned upon the refusal to charge other requests, and to the charge as delivered, which'raise, however, no pertinent questions of law that are not covered by the assignments that have already been considered. Finding in the conduct of the trial below no error prejudicial to the defendants, my conclusion is that the judgment in favor of the plaintiffs should be affirmed.