31 N.Y.S. 514 | N.Y. Sup. Ct. | 1894
The plaintiff purchased from defendants 26 bales of Sumatra tobacco, through a broker, and received from the latter a bought note, which reads as follows:
“Mr. S. Ashner, 15½ Bowery, bought of M. Abenheim & Co., 2 and 4 Stone street, twenty-six bales Sumatra tobacco, Deli Poewa, Bl, as per annexed return, Nos. 1,148.52, 1,154.74; net 45,460, at $1.40,—$6,364.40. Terms: The goods are to be delivered, duty cash, not less than five bales at a time. Any amount of goods over five bales delivered between date of bill and sixty days thereof is to be discounted at the rate of 6 per cent, per annum on a four months’ basis. Por amount of goods remaining in bond at the expiration of sixty days, a four months’ note is to be given for the bonded amount; but, whenever more than five bales have been delivered, such excess is to be discounted at 6 per cent, per annum for unexpired time of note. The duty on such amount.of goods remaining in bond must be paid whenever a change in the tariff necessitates it. The duty is 45 cents (forty-five cents) per pound.”
The plaintiff paid the full amount of $6,364.40, and received the 26 bales of tobacco; but having subsequently ascertained that the duty on said tobacco was only 35 cents, instead of the 45 cents stated in the note and paid to defendants, this action was brought to recover the difference of 10 cents per pound so obtained by defendants, as alleged, through misrepresentation.
It clearly appears that the broker represented to plaintiff that the duty on the tobacco was 45 cents, and that plaintiff relied upon such statement in paying that sum to defendants. If, however, such representation is to be regarded as one relating to the value of the tobacco, or as a representation of what the law was relating to duties, some doubt might exist as to plaintiff’s right to recover,— upon the former ground, because it would have been necessary for the plaintiff to show that the actual value of the tobacco which he purchased was less than it would have been if the government had imposed a duty of 45 cents upon it, instead of a duty of 35 cents, which the evidencé fails to disclose; and upon the second ground of misrepresentation of law, because, “generally speaking, a misrepresentation of law affords no ground of redress or relief; the misrepresentation should be of a fact.” 1 Bigelow, Fraud, p. 487. But the plaintiff was not confined to either of these theories to justify a recovery, and we think that the error into which the learned court fell in dismissing the complaint was in overlooking the basis upon which the action was predicated, and which necessarily involved a construction of the contract between the parties. The construction of such contract was for the court, and it is here to be determined
We think the evidence justified the construction that the contract was one by the terms of which the plaintiff was to buy at the short price, which excluded the duty, and, in addition to such price, was to pay whatever the duty might thereafter be found to be, whether it was more or less than the amount represented of 45 cents, and which was included in the contract. Such construction finds support in the circumstances attending' the making and delivery to plaintiff of the bought note, which, as shown, when brought to plaintiff, contained a statement that he bought so many pounds of tobacco at a fixed or long price, including the duty; but, before he would accept the bought note or complete the contract, he insisted on the information as to what the duty was, and, as appears from such note, had it placed at the end thereof. It is true that the broker in one place testified that the price per pound for the tobacco fixed by the contract was $1.40, duty cash; but he further stated that he could not remember whether, at the time such price was fixed, anything was said about the duty, or, to quote his exact language: “I am at a loss to say whether these bought and sold notes and the price of $1.40 a pound was settled'upon before I found out what the duty was.” This uncertainty, however, is entirely removed by his subsequent testimony that he and plaintiff conversed about the price of the tobacco in Amsterdam, and the cost of importing the same, and that the plaintiff “would not accept the contract unless I put it down in writing how much the duty was.” When cross-examined by defendants’ counsel as to whether the plaintiff had not
FOLLETT, J., concurs. PARKER, J., dissents.