303 N.Y. 385 | NY | 1952
This action, for breach of an implied warranty in a sale by description, arose as a result of the purchase by the plaintiff from the defendants of 80,000 pounds of a chemical known as dibutyl phthalate. In the litigation which followed the plaintiff has thus far successfully maintained that the material delivered under the contract in suit did not meet the commercial standard for dibutyl phthalate whereas, as plaintiff claims, the defendants had warranted that it would meet the test of commercial standards in all respects except for color.
The case is here upon the defendants’ appeal by our leave from a judgment of the Appellate Division unanimously affirming a judgment entered upon a jury’s verdict at Trial Term in favor of the plaintiff.
A brief statement of facts of record will make clear the basis of our conclusion that the defendants’ challenge to an evidentiary ruling affords a valid basis for reversal and a new trial: The chemical known as dibutyl phthalate — a compound of butyl alcohol and phthalic acid — has a variety of industrial uses including its use as a plasticizer in the plastic industry, as a lubricant, and in leather dressing. When it conforms with commercial standards dibutyl phthalate is water-white in color, insoluble in water, and is 98% to 100% pure dibutyl phthalate. Mixed with an emulsifier the resulting chemical occasionally is employed as an insect repellent and when so used the concentration of dibutyl phthalate is below the commercial standard.
The decisive issue at the trial herein was whether the chemical delivered to the plaintiff by the defendants conformed to the following specifications set forth in a written contract prepared by the defendants to govern the transaction:
“ MATERIAL: Dibutyl Phthalate'
SPECIFICATIONS: Ofetest — Pale yellow, as per SAMPLE ”
The plaintiff seeks to justify the exclusion of testimony which would have defined the trade significance of the contract specification clause, read in its entirety, upon the asserted ground that the meaning of the entire .clause was a question for the jury. True it is that the meaning of the entire specification clause was an important factor to be considered by the jury. We do not think it follows, however, that evidence of the meaning ascribed by trade usage to a crucial clause of the contract here in suit should have been excluded. Throughout the taking of testimony and in the court’s charge the contract, with special reference to the specifications clause, was treated as ambiguous. In view of that circumstance and to aid a lay-minded jury to understand what was meant by language
For that conclusion we find support in the rule of Atkinson v. Truesdell (127 N. Y. 230, 234.): “ * * # the rule may be regarded as well settled, that the meaning of characters, marks, letters, figures, words or phrases used in contracts, having purely a local or technical meaning, unintelligible to persons unacquainted with the business, may be given and explained by paroi evidence if the explanation is consistent with the terms of the contract. So, also, paroi evidence may be given as to the uniform, continuous and well settled usage and custom pertaining to the matters embraced in the contract, unless such usage and custom contravene a rule of law, or alter or contradict the expressed or implied terms of a contract, free from ambiguity.” (See, also, Mutual Chemical Co. v. Marden, Orth & Hastings Co., 235 N. Y. 145, 151; Oswego Falls Pulp & Paper Co. v. Stecher Lithographic Co., 215 N. Y. 98, 108; Underwood v. Greenwich Ins. Co., 161 N. Y. 413, 423-425; Newhall v. Appleton, 114 N. Y. 140, 143-144.)
The judgments should be reversed and a new trial granted, with costs to abide the event.
Loughran, Ch. J., Conway, Dye and Froessel, JJ., concur with Lewis, J.; Desmond and Fuld, JJ., dissent and vote for affirmance on the ground that the trial court’s ruling, described in the prevailing opinion of this court, was correct, and that, even if erroneous, it could not have influenced the decision by the jury of this issue of fact, already thoroughly tried oui before two juries.
Judgments reversed, etc. [See 303 N. Y. 909.]