Nitke v. Warren Leather Goods Co.

HOUGH, Circuit Judge (after stating the facts as above). [1] The main question in this case was for the court, viz. whether the parties agreed as alleged in the complaint, or whether the contract related to a specific lot of goods. Brawley v. United States, 96 U. S. 168, 24 L. Ed. 622. [2] A subsidiary question, also for the court, was whether the 2,000 [890] or 3,000 sides, mentioned or written by the parties, were words of “expectation and estimate only,” or amounted to an “undertaking that the quantity should be so much.” McConnel v. Murphy, R. R. 5 P. C.218. [3, 4] In construing the written document, “it is a fundamental rule” that one should “look, not only to the language employed, but to the subject-matter and the surrounding circumstances,” and avail oneself “of the same light which the parties possessed when the contract was made.” Merriam v. United States, 107 U. S. 441, 2 Sup. Ct. 540, 27 L. Ed. 531. More specifically this case demanded that “the obviously dominant measure” of what the vendee was to get should be discovered. Smoot v. United States, 237 U. S. 42, 35 Sup. Ct. 540, 59 L. Ed. 829. The written contract itself does not reveal this. It speaks of a “balance,” and one asks — balance of what? As soon as the surrounding circumstances are revealed by the vendee’s own evidence, it is plain that what was meant was the balance of the lot Nitke saw and bargained for. [5] The only peg then left on which to hang plaintiff’s case is the phrase “about 2,000 sides.” Undoubtedly the variance between 2,000 sides and what the vendee got is very gross; and the rule of construction is that, when a quantity named is qualified by such words as “about,” or “more or less,” their scope is restricted to such “accidental or immaterial variations in quantity as would naturally occur in connection with” that particular transaction. Hadley, etc., Co. v. Highland, etc., Co., 143 Fed. 242, 74 C. C. A. 462. But when it is fairly inferable that what was intended to be and was the subject-matter of contract was a particular lot of goods, then the quantity specified “amounts to no more than a rough estimate of the probable quantity, which, in the absence of fraud, is not regarded as binding on either party.” United States v. Pine River, etc., Co., 89 Fed. 911, 32 C. C. A. 411, affirmed 186 U. S. 279, 22 Sup. Ct. 920, 46 L. Ed. 1164. In this case there is neither allegation nor evidence of fraud; there was no more than a very bad guess hy an employe of defendant. A verdict for plaintiff could have rested on nothing but an assumption that the parties bargained for something other than the lot of buffings Nitke saw, or that Warren Company defrauded their customer. The first possible foundation is swept away by the law, and the second by lack of both evidence and appropriate pleading. Judgment affirmed, with costs.