O’Donohue v. Leggett 8 N.Y.S. 426

O’Donohue et al. v. Leggett et al.

(Supreme Court, General Term, First Department.

December 2, 1889.)

L Custom and Usaqe—To Vary Contract—Sale.

Where a contract is to purchase “ 1,700 piculs of Free Preanger coffee, to arrive, * it cannot be shown that on sales of coffee to arrive the exact quantity was not al*427ways realized; that it overran in some cases, and fell short in others; and that when 1,640 piculs would arrive it would be regarded a good delivery on a contract for 1,700. The contract being definite and certain in respect to quantity, evidence of a custom to change or vary it cannot be received.

2. Sale—Deficiency—Estoppel.

The fact that sample bags of the coffee delivered to the purchasers had figures on them which indicated the deficiency in quantity, but which figures were not noticed by the purchasers, and that on the arrival of the coffee they refused to accept it because of a defect in its quality, does not preclude them, on afterwards discovering the shortage, from relying on that ground as a defense to the action.

Appeal from circuit court, New York county.

Action by Joseph J. O’Donohue, Peter J. O’Donohue, and John "V". O’Donohue against Francis H. Leggett, Theodore Leggett, and Henry T. McCoun, to recover damages for an alleged breach of a contract to purchase 1,700 piculs of Free Preanger coffee. On a former trial plaintiffs recovered a verdict, and defendants appealed. The general term reversed the judgment, the justices filing the following opinions:

“Daniels, J. The verdict was rendered for the difference between the price for which certain coffee was agreed to be purchased by the defendants and that which it produced upon a sale made after they had refused to accept and receive it. The contract for the sale of the coffee was in writing, and made by brokers with the defendants on account of Sheldon. Banks & Co., who had previously agreed to purchase the coffee from the plaintiffs. After the defendants refused to receive it, the right of their vendors to recover damages for the. non-performance of the agreement was assigned to the plaintiffs, and the action was prosecuted by them against the defendants as such assignees. The contract was mad'e on the 27th of October, 1879, and it was in the following form: “ ‘New York, Oct. 27th, 1879.

“ ‘Sold, for account of Messrs Sheldon, Banks & Co., to Messrs ff. H. Leggett & Co.: 1,700 piculs Free Preanger coffee, to arrive, name of vessel or vessels to be given as soon as known to sellers, at 22 cents per pound. Sound and made sound. Basis, 4-months notes from average delivery into store; payable, cash as received within first month’s storage; discount for unexpired time; rate, 7 per cent, per annum. First month’s storage and fire insurance free, and to weigh coffee. Should government impose a duty on coffee, this coffee to be taken in bond. Ho arrival, no sale.

[Sd.] “ 1 O’Shaugiinessy & Sorley, Brokers.

“ ‘ O'Shaughnessy c6 Sorley, 97 Wall Street.'

“Written across the face: ‘Accepted, Sheldon, Banks & Co.’

“The coffee was laden on board the ship Jacobus Johannes, which was after-wards offered by the vendors to the defendants in fulfillment of the terms of the contract. The ship arrived at the city of New York prior to the 6th day of May, 1880, and the coffee was then placed in store. It was not, however, what was in fact Free Preanger coffee, but it was coffee accurately known as ‘Pondok Gedeh.’ The former description was coffee produced upon free estates in the province of Preanger, situated upon the south-westerly portion of the island of Java. This province was separated by a mountain range from that called ‘Buitenzorg,’ which contained the estates producing the Pondok Gedeh coffee. That which was offered to the defendants was not, in fact, Free Preanger coffee, therefore, and for that reason they refused to accept it in performance of the agreement which they had made. To obviate this objection, proof was given at the trial that, at the time when the agreement for the sale and purchase of the coffee was executed, what was in fact Free Preanger coffee, or coffee grown upon free estates in' the province of Preanger, was an article not in fact dealt in at the city of New York, but that other descriptions of coffee produced in the province of Buitenzorg were dealt in under the name and description of ‘ Preanger ’ and ‘ Free Preanger ’ coffee. The coffee so dealt in under these names was stated to be the product of Pondok *428Gecleh, Nan goon, anu Tziserora, and evidence was given tending to establish the i'act that these were the descriptions of coffee bought and sold under the name of ‘Free Preanger’ or ‘Preanger’ coffees, and that the defendants, previous to the making of the agreement in suit, had in one or more instances been parties to such dealings. This evidence was not so definite as to be conclusive upon the parties to the agreement, but it probably was sufficient, if it were admissible, to warrant the court in submitting the point to the jury whether, in making their agreement, the parties had used this phrase in the sense alleged to have been acquired by it among dealers in coffee in the city of New York; and it was so submitted by the court to the jury, and the defendants’ liability on this part of the case made dependent upon the intention of the defendants to buy the coffee of the quality and description tendered to them in performance of the agreement.

“That evidence was admissible to prove that the phrase ‘Free Preanger coffee’ had acquired a fixed and definite meaning inthe coffee trade, differing from its obvious meaning, in the city of New York prior to the time when this agreement was made, seems to be reasonably free from controversy; for, in the course and transaction of business, words and phrases may acquire an important signification, differing from that attributed to them in their common use, and proof of that fact may be given to show that they were so used and understood, and, where the proof establishes that to be the fact, the terms employed are so to be understood and applied in the determination of legal controversies affecting agreements containing them. In Irwin v. Williar, 110 IT. S. 499, 4 Sup. Ct. Eep. 160, the signification of the phrase ‘ dealing in grain,’ as it was used in a copartnership business, was made the subject of consideration by the court. The phrase itself was one concerning which no confusion of meaning could ordinarily arise, for the words employed in it were those of common and known signification; yet the court in that case held it to be proper to receive evidence tending to establish the fact that in the business in which these words had been employed they had acquired a special, limited, trade signification. On that subject it was said in the opinion that ‘ “dealing in grain” is not a technical phrase from which a court can properly infer, as matter of law, authority to bind the firm in every case, irrespective of its circumstances, and, if by usage it has acquired a fixed and definite meaning as a word of art in trade, that is matter of fact to be established by proof and found by a jury.’ Id. 506. The same subject was considered in Bissel v. Campbell, 54 N. Y. 353, where it was said that ‘ general words in particular trades and branches of business, as among merchants, for instance, may be used in a new, peculiar, or technical sense, and therefore, in a few instances, evidence may be received from those who are conversant with such branches of business, and such technical or peculiar use of language, to explain and illustrate it.’ Id. 357. And in Callender v. Dinsmore, 55 N. Y. 200, it was also held that * words or forms of expression, which are not of universal use, but are purely local or technical, may be explained by paroi evidence; and the same is true of words or phrases having two meanings,—one common and universal, and the other peculiar, technical, or local.’ Id. 205.

“ The evidence by which this local signification was attributed to these words was not very substantial or satisfactory in its character, for the witnesses by whom it was given were able to recur to but few instances in which these other descriptions of coffee had been delivered and received as Preanger coffee, and, before the contract in suit was entered into, the authenticated instances in which the phrase ‘Preanger coffee ’ was used appear to have been exceedingly limited. The first clearly and satisfactorily shown was in September, 1879, and alone necessarily entitled to but little weight in the way of establishing a different signifleationffor this phrase from that which in fact it should truthfully receive. This evidence was also reduced in its effect by the *429testimony of the plaintiffs’ witnesses, stating their own understanding of the phrase ‘ Free Preanger coffee.’ The agreement for the sale was made through the agency of a firm of brokers known as O’Shaughnessy & Sorley. The member of the firm directly participating in it was Mr. Sorley, and he stated in his evidence: ‘When the term “Preanger” is used alone, I understand by that government coffee raised in the Preanger district. ’ The witness Christiana expressed himself in a similar manner, for he stated: ‘ When I hear the name “Free Preanger,” I understand by it,-in the trade, coffee grown in the district of Preanger.’ Peter J. O’Donohue, who was one of the firm selling this coffee to the defendants’ vendors, gave evidence of a like import. He was asked: ‘What does “Preanger” mean? Answer. It is coffee raised on the island of Java, in the Preanger region; that is what we understand by it in the trade. Question. And when you buy Preanger coffee you expect coffee raised in Preanger. A. Yes, sir; the general expectation.’ O’Shaughnessy, the other member of the firm, was also examined as a witness in the case on behalf of the plaintiffs, and testified that a sale made by his firm for Wheeler & Co. to the defendants, on the 22d of September, 1879, was their first transaction in coffee referred to as ‘Free Preanger coffee.’ The evidence of the plaintiffs’ witnesses also tended to show that this particular contract was made for what was in fact Free Preanger coffee. Mr. Sorley stated that, ‘ in the sale to Leggett & Co., I represented the coffee to be Free Preanger.’ And O’Shaughnessy, the other member of the firm, testified that, in the sale in September to the defendants, he represented the coffee sold to them as Free Preanger, and that he made the same representation to their vendors, when the contract of sale was made of this coffee to them. All this evidence tended very decidedly to deprive the other testimony, as to the local understanding of this phrase, of its force in the case, but still it may have been sufficient to sustain the direction by which the jury were allowed to determine whether the phrase had acquired a different meaning among dealers in coffee in the city of New York from that which would be accurately attributable to it.

“ Other proof of usage or custom was also allowed to be given tending to. establish an obligation on the part of the defendants to reject the coffee, if they intended to object to its quality or description, within 24 hours after the samples were delivered to them. But for the reason and under the authorities hereafter stated, this proof probably could not legally be allowed to produce such a result, for by the terms of the agreement the time when the coffee was to be delivered was definitely designated, and the defendants could not well be required to conclude themselves upon that subject before the coffee itself in bulk arrived. That was the proper time stated by Mr. Sorley for its examination, and the order requested by the defendants for liberty to sample-the coffee, and the authority returned to the defendants to do that, proceed upon this understanding of the agreement. It was by neither side pretended that the defendants had precluded themselves from objecting to the coffee by anything which had previously transpired, but liberty was asked and accorded for the examination of the coffee, to enable the defendants to determine whether they should take it or not; and it is quite significant, upon a point to be considered, that in their request for this liberty, and that made by their-vendors upon the plaintiffs, the coffee was stated to be in quantity the same as was mentioned in the agreement. By the terms of the agreement the vendors obligated themselves to deliver the coffee mentioned in it after the-arrival of the vessel; and, as the defendants did not in fact accept it before-that time, there seems to be no legal ground preventing them from objecting to it when it was tendered to them after the vessel had arrived and the coffee had been placed in store. The custom or usage relied upon to defeat this right does not seem to have been sufficient for that purpose, for the clear implication of the agreement was that the defendants were free to act after the coffee-was in port, and there seems to be no principle upon which they could be de*430prived of that right by the indefinite and uncertain evidence relied upon as establishing a different usage in this trade.

“It is not necessary, however, definitely to determine either of these points for the disposition of these appeals, for the coflee which was offered to the defendants by way of performance of the agreement was materially deficient in quantity. The contract was for the sale of 1,700 piculs, while that which was unladen from the ship amounted only to 1,645.50 piculs. A picul was shown to contain 136 pounds. The amount offered to the defendants under the contract was accordingly over 7,000 pounds less than that which they had agreed by its terms to purchase. This was not known to them when they were offered the coffee after the arrival of the ship. The offers of the coffee were made to them during the month of May and the early part of June,1880, and the coffee itself was not weighed until the 5th or 6th of June, and information of its precise weight was not even then communicated to the defendants. It did not appear, consequently, at the time when they refused to accept the coffee for the reason that it was Pondok Gedeh and not Free Preanger, that it was deficient in quantity. In or about the month of February, 1880, bags containing samples of the coffee, which had been sent overland after its, shipment, were delivered to the defendants for their inspection and examination, and these bags had figures upon them which indicated that there was this deficiency in the quantity of the coffee, but they do not appear to have been observed either by the defendants or Mrs. Armitage, who was in their •employment conducting this business; and in the written requests made by the defendants on the 8th of May, and by Sheldon, Banks & Co., for authority to the former to sample the coffee, the quantity was stated the same as it liad been in the agreement, indicating that to be the amount they expected to receive. No such knowledge, therefore, can be held to have been acquired •either by him or the defendants as would deprive them of the right to object to this deficiency in quantity. The fact first appears to have been brought to their attention upon the trial of the action. It was alleged in the complaint that the vendors offered and tendered all the coffees described in the contract. This was denied by the answer, and the obligation rested upon the plaintiffs to prove the truth of these allegations before they could recover in the action. They failed to do that because of this deficiency in quantity, but they endeavored to relieve themselves from the effect of this inability to prove the performance of the agreement by further proof of custom. For that purpose, •evidence was given tending to show that, in cases of coffee to arrive, the ex.act quantity was not always realized, but that it overran in some cases, and fell short in others, and that when 1,640 piculs would arrive it would be regarded a good delivery upon a contract for 1,700. This evidence was objected to as incompetent, immaterial, and seeking to vary the contract. The objections were overruled, and the defendants excepted. The exceptions taken to the rulings allowing this evidence to be introduced in the case were legally well founded, for there was nothing uncertain or indefinite in the contract in this respect. It was, on the other hand, a positive agreement to deliver 1,700 piculs of coffee. The contract was in no respect indefinite or qualified as to the quantity. But the sellers, by means of it, undertook to deliver this quantity, and their contract could only be legally performed by delivering that amount, as there was no waiver on the part of the defendants of the right to demand full and complete performance of the agreement. Where a contract is clear and definite, as this was=in this respect, evidence of custom or usage to change or vary it cannot legally be received. Fellows v. Mayor, etc., 17 Hun, 249; Westeott v. Thompson, 18 N. Y. 363-367; Bradley v. Wheeler, 44 N. Y. 495-504; Bank v. Bank, 91 N. Y. 74, 82; Partridge v. Insurance Co., 15 Wall. 573-579; Callender v. Dinsmore, supra. Without this evidence the -plaintiffs’ proof would have been materially deficient. It consequently had an important bearing upon their right to recover in the action; so important as *431to have justified the court in withholding all inquiry from the jury concerning this deficiency in the quantity of the coffee.

“In the course of the cross-examination of witnesses produced on the defense, evidence was elicited, subject to the objection and exception of the defendant’s counsel, showing the reputation of the plaintiff’s witnesses Sorley and McNulty. They had not been assailed in any manner by proof affecting their standing or reputation, either as business men or men of integrity; and it was not competent for the plaintiffs, as long as that was the state of the proof, to endeavor to sustain them by evidence showing their reputation and •standing to be good. Hannah v. McKellip, 49 Barb. 342. This evidence may not have had any important influence in the determination of the ease •by the jury, but there is nothing contained in it which would justify the conclusion that it produced no legal injury to the defendants. As the case was presented, the right of the plaintiffs to maintain the action was not made out by legal evidence. The judgment and order must consequently be reversed, and a new trial directed, with costs to abide the event.

“Beady, J., concurs in the result.

“Davis, P. J. I have grave doubts of the correctness of the conclusion of my Brother Daniels as to the question arising from the failure to tender * 1,700 piculs ’ of coffee, and the showing of a tender of 1,640 piculs. No objection was made on that ground at the time of the tender or offer to deliver. It seems to have been assumed that the quantity was sufficient, but that defendants were not bound to receive the coffee, because the kind tendered was not the kind purchased. I think the contract, under the circumstances, should not be held to be one for a definite and absolute quantity. Such a holding would defeat an action if a single picul short of 1,700 was tendered. The quantity sold was doubtless understood to be that on board of a ship or ships to be afterwards named. ‘It was sold to arrive,’ and, when the naming the vessel or vessels was afterward supplied, the fair import of the contract was, I think, an agreement to sell and deliver the coffee of the kind mentioned, then on board such vessel or vessels. The naming of 1,700 piculs would in that case, perhaps, fix the maximum defendants would be bound to take; but the whole contract, taken together, should be understood to be that the quantity that should arrive, being about 1,700 piculs, and not exceeding that number, was sold. I think defendants ought not to have been permitted to make the point of deficiency for the first time on the trial. I am, however, satisfied with the disposition of the case on the other points discussed by Daniels, J., and must concur in a reversal and new trial.”

On a retrial of the case at the circuit, defendants, at the close of the evidence, moved for a dismissal of the complaint on the following, among other, grounds: That the sellers did not have, and were not able to deliver, 1,700 piculs coffee, sound and made sound; and that the purchasers were entitled to Free Preanger coffee; and that the coffee which arrived was not Free Preanger. The motion was granted, and plaintiffs appeal.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Doherty, Durnin & Hendrick, (J. H. Choate, of counsel,) for appellants. John B. Lord, (Osborn E. Bright, of counsel,) for respondents.