Oelricks v. Ford

Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the Circuit Court of the United States for the district of Maryland. The suit was brought by Ford against the defendants in the court below upon the following contract: Baltimore, November 7, 1855. For and in consideration of one dollai’, the receipt whereof is hereby acknowledged, I have this day purchased from J. W. Bell, agent for Benjamin Ford, New York, for account of Oelricks & Lurman, Baltimore, ten thousand barrels superfine Howard Street or Ohio flour, deliverable, at seller’s option, in lots of five hundred barrels, each lot subject to three days' notice of delivery, and payable on delivery, at the rate of nine dollars and twenty-five cents per barrel, viz: *60 2.000 barrels, seller’s option, all December, 1855. 4.000 “ “ “ January, 1856. 4.000 “ “. February, 1856. 10,000 L. E. BALLARD, Broker^ Approved: OELRICKS &. LURMAN. The 2,000 barrels deliverable in December wore delivered, accepted* and paid for, as per contract. The i,d00 barrels to be delivered in each of the months of. January and February were duly tendered to the defendants, and payments demanded, aiid which were refused. The only objection tov the acceptance of the flour at the time tendered was thewefusal of Ford to a demand made upon his agent to deposit $5,000 .in one of the banks in Baltimore to secure the punctual delivery of the flour at the time mentioned. This demand for a deposit of money was denied by. the plaintiff, on the ground that the contract contained no such stipulation. . After much, testimony given bj^both parties on tlie trial, on the, subject of a usage among the dealers in.flour in the city of Baltimore to demand on time contracts a-deposit of money, '(or margin, as it is called,) and the right to rescind the contract if. refused, the court, charged the jury, that-if they shall • find, from- the evidence, the defendants entered into the contract given, in. evidence, and that-the plaintiff offered to deliver the flour, therein mentioned according to its terms, and that when thé- offer was made, he had the requisite' quantity of •flour to comply .with the contract, and could' have delivered it. if the defendants had been willing, to receive it, and that they had refused, then the plaintiff was entitled, to recover. .The court further, instructed the jury, that the rule ■ of. damages was-the difference between the contract price of the flour and the- market value' in-the city of Baltimore on the several days, of the tenders, with interest on this sum, in the discretion of thkjury.. The jury found for the plaintiff *61 One of the principal grounds of objection to the ruling oí the court is, its refusal to submit the question of usage, which was the subject of evidence on the trial, to the jury. The1 witnesses introduced by the defendants to prove the usage speak in a very qualified manner as to its existence, as well as to the instances in which they have known-it to have been adopted or acquiesced in; and all of them admit they have no knowledge that it was genei'al among the dealers. Some of them state-that they recognised and had acted upon a custom in their own business, under which either party to the contract might require a margin to a reasonable amount, to be put up to secure the performance, and that the contract might be rescinded, .if the party refused; that they could not say such was the general custom; that different persons have different customs; some consider there is such, a usage, and some .do not. One witness states that he had at all times in his business considered it to be a right which might be exercised by either party to a time contract, whenever he apprehended a risk; that if the party was solvent, he supposed there was no right to demand it; another, that in his business he had always considered such contracts to be subject to the right of either party to demand the margin; that the occasion of exercising it was rare, as contracts made by his .house were made with responsible persons; that he did not know that this was a general usage.in Baltimore. The broker who negotiated the contract for the defendants states that he considered it a clearly understood right of both parties to such contracts to demand a margin to, a reasonable amount; that he entertained the belief, from conversations with various merchants on the subject; that he recollected but one instance where, when the demand was made, the margin was put up, which was a margin of twenty-five cents on the barrel in a contract for 500 barrels. There were ten witnesses, flour merchants for many years in the city, who state that they knew of no such usage. It will thus be seen, from .a careful analysis of the evidence, . that the defendants wholly failed to prove any general or established usage or custom of tls$ trade in Baltimore, as claimed in the defence. Every witness .called on their behalf fails to *62 preve facts essential to make out the custom in the sense of the law; on the contrary, most of them expressly disprove it. They express opinions upon the subject of a margin as a right to be exercised in their own business, but admit that it is not founded upon any general usage.; and none of them speak of its having been claimed or exercised in his own business but in one or two instances. Whether a usage or custom of the kind set up existed in the trade in Baltimore, was a question of fact to .be proved by persons who had a knowledge of it from dealing in the article of flour. Opinions of persons as to what rights they might exercise in their own business in respect to time contracts fall far short of any legal proof of the fact, especially when they admit that there was no general usage of the kind known to them. Then, as to the precise limit or character of the custom claimed, the opinions of the witnesses are various and indefinite. The margin, they say, must be reasonable, but the pretended usage contains no rule by which a reasonable margin may be determined. It is said the amount may be referred to merchants. But there is no evidence that this is a part of the custom, or that any such mode of adjusting it ever occurred in the trade. Some of the witnesses state, that the margin must be a sum of money sufficient to make the party safe according-to the state of the market. One states, that at the time the demand was made in this case for a margin, flour had fallen, and the price .lower than the price in the contract; yet this, in his judgment, did not affect the right to make the demand, as the general opinion among dealers was, that the .price would advance; that there'were great fluctuations in the price, and that, in such a condition of things, a reasonable margin would depend upon the extent and character of the fluctuations, and upon the speculative ideas of the future value of flour. The broker of the defendants, who purchased this flour, states his view of the reasonableness of the margin, which is the difference between the intrinsic value of the flour and its speculative value; by intrinsic value,.he says he means the cost of the production; and by speculative value, the price at *63 which it was rating above its intrinsic value; and to a question what, in his opinion, would be a reasonable margin under the custom, when flour in the market was lower than the contract price, he answered, that he considered the demand reasonable m this case, because he believed flour was going up to twelve, dollars per barrel. It would be difficult to describe a custom more indefinite and unsettled. But, independently of the total insufficiency of the evidence to establish the usage, we are satisfied, if it existed, the proof would have been inadmissible to affect the construction of the contract. This proof is admissible in the absence of express stipulations, or where the meaning of the parties is uncertain upon the language used, and where the usage of the trade to which the contract relates, or with reference to which it was made, may afford explanation, and supply deficiencies in the instrument. Technical, local, or doubtful words may be thus explained. So where stipulations in the contract refer to matters outside of the instrument, parol proof of extraneous facts may be necessary to interpret their meaning. As a general rule, there must be ambiguity or uncertainty upon the face of the written instrument., arising out of the terms used by the parties, in order to justify the extraneous evidence, and, when admissible, it must be limited in its effect to the clearing up of the obscurity. It is not admissible to add to or engraft upon the contract new stipulations, nor to contradict those which are plain. (2 Kent Com., p. 556; 3 ib., p. 260, and note; 1 Greenl. Ev., sec. 295; 2 Cr. and J., 249, 250; 14 How., 445.) Applying these principles to the contract before us, it is quite clear that the proof of the usage attempted to be established was inadmissible, and should have been rejected. There is no ambiguity or uncertainty in its terms or stipulations, and the condition sought to be annexed was not by way of explanation or interpretation, but in addition to the contract. The plaintiff agrees to deliver a given number of barrels of flour on certain days, at the price of $9.25 per barrel, in consideration of which the defendants agree to receive the flour, and pay the price. This is the substance of the written contract. But the *64 defendants insist, that besides the obligations arising out of the written instrument, the plaintiff is under an additional obligation to give security, whenever called upon, for the faithful performance; and this, by the deposit in bank of the sum of $5,0001 “ The written instrument bound only the personal responsibility of the plaintiff; the parol evidence seeks to superaddj.h'ot a .responsible name, as a surety, but in' effect the same thing, a given sum of money. The parol proof not only adds to the written‘instrument, but is repugnant to the legal effect of it. It was also urged on the argument that this contract was entered into between the defendants and the agent of the plaintiff, with the understanding at the time that it should, be subject to the usage; but the answer to this is, that no such usage existed ; and if it did, the terms of the contract exclude it; Any conversations and verbal .understanding between the parties at the time were merged in the contract, and parol evidence inadmissible to engraft them upon it. We are satisfied the court below-was right in excluding the consideration of the evidence of the usage from the jury: 1, because the usage was not proved; and 2, if it had been, it was incompetent to vary the clear and positive terms of the instrument. An objection has been taken on the argument, which was not presented to the court below, but which, it is insisted, is involved in the exception to the charge; and that is, inasmuch as it appears upon the evidence that the plaintiff was a resident of New York, and the_ contract made at Baltimore, in the State of Maryland, by an.agent, the’presumption of law is, that the credit was given exclusively to the agent, the principal being the resident of a foreign State; and hence, that the contract, in legal effect, was made with the agent, and not with the principal, and the former should have brought the suit. . This doctrine is laid down by Judge Story in his work on agency, and -which was supposed to be the doctrine of the English courts at the time, and founded upon adjudged cases. (Story on Agency, sec. 268 and note; secs. 290, 428.) It did *65 not, however, at the time receive the assent of some of the courts and jurists of this country. (2 Kent’s Com., pp. 630, 631, and note; 22 Wend., p. 224; 3 Hill., 72.) And the doctrine has recently been explained,, and Judge Story’s rule rejected, by the English courts. In the case of Green v. Kope, (36 Eng. L. and Eq. R., pp. 396, 399, 1856,) the court denied that there was any distinction, as it respected the personal' liability of the agent, whether the principal was English or a foreigner. The Chief Justice observed: “It is. in all cases a question of intention from the contract, explained by the surx’ounding circumstances, such as the. custom-dr usage of the trade when such exists. No usage,” he observes, “was proved ixx the present case, and I believg none could have been proved.” Again, he- observed: “It would be ridiculous to suppose that an agent, for a commission of one-half pex cent-., is to guaranty the performance of a contract for the shipment of 1,000 barrels of tar.” The case was finally put upon the intent of the parties, as derived fi-om the construction of the contract, and which was, that the defendant contracted only as agent, and not to make himself personally liable.- Willes, J., doubted if evidence of custom was admissible to qualify the express words of the contract, so as to make the agent liable. (See also 14 Com. B. R., p. 390; Mahoney v. Kekule, 5 Ellis and Black, pp. 125, 130.) In the present case, the broker’s note, and which is approved by the defendants, affixing the firm name, is too clear upon the face of it to admit of doubt as to the person with whom the contract was made. The purchase is from “ J. W. Bell, agent for Benjamin Ford, of New Yox’k,” and the case shows that Bell had full authority. The name of the principal is disclosed in the contract, and the place of his residence, as the person makiixg the sale of the flour,, thi'ough his agent. This fixes the duty of performance upon, him, and exonerates the agent. The judgment of the court below affirmed.