134 N.Y. 15 | NY | 1892
Lead Opinion
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The question at the trial was treated by the parties as one of law merely. If, therefore, the evidence warranted the recovery by plaintiff, the verdict as directed must be sustained, although the result may have required the determination of a question of fact. (Kirtz v. Peck,
By letter of the same date in reply the defendant's agent says: "I beg to accept rates quoted therein from New York to Rome and return for said party to be transported by steamer Bolivia on sixteenth, prox. Regarding the numbers I beg to say that my latest advice from Mexico mentioned in my previous letter of this date that there is a probability that the party will exceed 250, but I have not been furnished information as to the exact number of each class." He does not in terms comply with the request in the letter of the plaintiff's agents to confirm the understanding there expressed, but makes reference to and repeats what he has said in his previous letter in respect to his advice from Mexico on the subject of the number of passengers and disclaims information of their classification as such.
This is not a case of conflict in evidence. The question is one of construction and effect of the written correspondence between the representatives of the parties. And the plaintiff in support of his recovery is entitled to the benefit of any *23
inferences which may legitimately arise in that behalf. While the entire correspondence is the subject of consideration for that purpose, the question whether the defendant's agent accepted, adopted or assented to the proposition of the plaintiff is dependent mainly on his last letter of the thirty-first of March. He did there accept the rates. But is the inference permitted that he intended to assent to the proposition in respect to the number which should constitute the party of pilgrims for transportation by the plaintiff? There does not seem to be anything equivocal in expression for interpretation as there was in Justice v. Lang (
In Chicago, etc., Ry. Co. v. Dane (
There is no opportunity for the purposes of the contract to distinguish between the specific number referred to and the excess of it. By the statement of his information received that there was a probability that the number would exceed 250, the defendant's agent cannot be deemed upon any construction to which his language was entitled, to have intended to enter into contract to furnish such number of passengers, nor is it open to interpretation which would justify inference to that effect. *26
In the view taken of it there is in the evidence presented by the record no support for the contract alleged in the complaint. Although the expectation founded upon the statement so made by the defendant's agent may have led to preparations prejudicial to the plaintiff, it is not seen that defendant (assuming it acted in good faith) is chargeable with the consequences. Nor does it follow that, as suggested by the court below, the plaintiff was bound to proceed with the number of such passengers who did appear for transportation. By having made the proposition the plaintiff, if so advised, may have required compliance with it as a condition of proceeding on the voyage to Naples, or of carrying those passengers at any special rates.
These views lead to the conclusion that the judgment should be reversed and a new trial granted, costs to abide the event.
Dissenting Opinion
It is apparent from the correspondence, that the rate to be charged per passenger by the plaintiff was largely dependent on the number to be carried; that both parties so understood it, and that the negotiations between them were conducted on that basis. This being the understanding, the plaintiff's agent wrote to defendant's agent as follows:
"March 31st, 1888.
"G.W. KEELER, Esq., General Eastern Agent, Mexican Central Ry. Co. (Ltd.), New York:
"DEAR SIR — Referring to your favor of the 31st inst., and conversations had with you by our representative, Mr. Martin, regarding transportation of Mexican pilgrims from New York to Rome and return, by our S.S. `Bolivia,' to sail from this port for Naples about the 16 proximo, and to return from that port about thirty days after their arrival there, we beg to confirm the understanding arrived at between us, viz.: That you will ship not less than 75 first class, 75 second class and 100 third class passengers for the round trip, for which we agree to furnish transportation from New York to Rome and return, at the following rates: For first class, *27 one hundred and forty dollars; second class, ninety dollars, and third class, fifty dollars, subject to a commission of 5 per cent, and further, we agree to furnish five free passages to Rome and return, and five first-class passages to Naples and return to New York, for one hundred dollars each, and we promise to endeavor to secure free transportation for these five people from Naples to Rome and return; and we further promise that if we can see our way to reduce the steerage or third-class rate, by reason of any concessions in rail fares, which we may procure from the Italian Ry. Co., that we will do so. We also understand that prior to the sailing of the steamer, one-half of the passage money for the round trip will be paid to us. Please confirm this, and much oblige,
"Yours truly, "HENDERSON BROTHERS."
It is said that the following language amounts to a proposition only: "We beg to confirm the understanding arrived at betweenus, viz.: That you will ship not less than 75 first class, 75 second class and one hundred third class passengers for the round trip, for which we agree to furnish transportation from New York to Rome and return, at the following rates." I think it is more than a proposition. It asserts the existence of an understanding arrived at between the parties, by letters "and conversations." If the defendant did not concede the existence of the understanding, it was its duty to have denied it. (Gibney v.Marchay,
All concur with BRADLEY, J., except FOLLETT, Ch. J., PARKER and LANDON, JJ., dissenting.
Judgment reversed.