126 A. 525 | Vt. | 1924
This is a probate appeal from the disallowance by commissioners of a claim against the estate of the late Thomas J. Heaphy. The defendant moved the county court to dismiss the appeal on the ground, in substance, that the corporate existence of the plaintiff was not alleged. The first exception argued was saved to the overruling of this motion. In both the petition for an appeal and the accompanying declaration the plaintiff is described by name alone, but is referred to by the impersonal pronoun "it" and the petition is subscribed by one Blodgett as vice-president. It may be admitted as claimed that no suit can be maintained by a mere name; that a defendant is not compelled *124 to answer unless the suit is prosecuted in the name of a person, either natural or artificial, against whom he may have a valid judgment and execution. But it does not follow that if a plaintiff is a corporation, it must be set up as such.
Cases from other jurisdictions are cited which sustain the defendant's position, but the weight of authority is to the contrary. The prevailing view is that in an action by a corporation in its corporate name it is not necessary to allege that the plaintiff is a corporation, except in cases where the action in its gist and substance involves the fact of corporate existence. 7 R.C.L. 697, where the leading cases are collected. See, also, 14A C.J. 817; 3 Cook on Cor. § 753. This view is, we think, supported by the better reasoning. The name in which the plaintiff sues imports a corporation. It could not be taken to be that of a person, and implying, as the name does, that it is a legal entity, it must be that of a corporation. It will not be presumed to be the name of an unincorporated company or partnership who can sue only in their individual names, but rather of an incorporated company which alone has the right to sue in such a name. In short, the name in which the plaintiff sues not being the name of an individual, must, to be a legal entity, be the name of a corporation. Wheatley v. Chicago, etc.Bank,
The question before the courts has usually been whether the allegation that the plaintiff is a corporation, or a corporation organized and existing under the laws of a state named, is sufficient. Such was the case in Crockett v. Barre,
The claim in suit is based upon a writing dated May 14, 1920, of which the following are the material portions:
*126"T.J. Heaphy, Montpelier, Vt.
Bought of the Burlington Grocery Co., Burlington, Vermont.
10 bags Java sugar 26 220
About July. No cancellation. No arrival no sale. F.O.B. Montpelier car.
Import orders, — Goods sold subject to non-delivery if lost at sea or in transit.
. . . . . . . . . . .
This order will not be accepted unless signed by the purchaser.
Signature of Purchaser, T.J. HEAPHY. Salesman, T.B. GARVEY."
At the time this order was taken the plaintiff had no Java sugar on hand. There was an extreme shortage of sugar, and it had a large shipment of Java sugar in transit, expected to arrive in New York during the month of July, from which the order was to be filled. The shipment arrived in port July 9, 1920, but owing to a strike of longshoremen, the sugar did not come out of the steamer until nearly three weeks after her arrival in port. Further delay was experienced owing to freight embargo on the railroads out of New York and the first carload of the sugar arrived in Burlington August 11, 1920. The plaintiff filled its orders from Burlington as the sugar arrived, giving priority to earlier orders, and shipped the sugar ordered by Mr. Heaphy on September 4, 1920, from the first sugar available for that purpose after its earlier orders were filled. The shipment arrived in Montpelier, September 6, 1920. August 24, 1920, Mr. Heaphy wrote the plaintiff, "Please cancel order of May 14 for 10 bags sugar to be delivered in July," which the plaintiff received the next day. Mr. Heaphy refused to accept the sugar, claiming that it was not delivered according to contract and relying upon the cancellation of the order. At the time the sugar arrived in Montpelier the market price had fallen to ten and a fraction cents. Later the plaintiff sold the sugar at auction at 10 1/2 cents a pound and credited Mr. Heaphy with the balance of the proceeds after deducting storage and auction charges. The claim presented was for the balance of the price charged for the sugar, with interest, and the plaintiff recovered a verdict for the full amount.
Much of the evidence detailed above was received under exception against the objection that it was immaterial and furnished no excuse for failure to deliver within the time specified. Witnesses for the plaintiff were permitted to testify under exception as to the meaning of the term "no arrival no sale," and that in the custom of the trade it is used only in import contracts — never in domestic contracts or contracts relating to goods produced in this country. Evidence was received respecting the term "no cancellation" that it is never used in the grocery trade except in importation, and was used in this contract for the protection of both parties in case of fluctuation in the market price. Evidence was also admitted that the words "about July" import an importation contract, and in the custom of the importing *127 trade always refer to the arrival of the steamer or of the shipment in port. The objection to this kind of evidence was that it was immaterial — goes outside the writing and attempts to interpret it.
At the close of the evidence the defendant moved for a directed verdict on the ground, in substance, that the requirement of the contract as to time of delivery had not been complied with. The motion was overruled, to which the defendant excepted. The question turns largely on the construction to be given the phrase "about July." The use of the word "about" does not create an ambiguity, though it imports a more or less indefinite time. The plaintiff's theory at the trial was that the phrase related merely to the time of the arrival of the steamer at New York; that there was no time of delivery specified, in which case it was entitled to reasonable time after the month of July to make delivery. It was upon this theory that much of the evidence objected to was admitted. The defendant insisted that the term related to the time of delivery, and that, as matter of law, the delay shown justified the refusal to accept the sugar.
It must be held that the contract was for delivery "about July." As it is in this respect unambiguous, parol evidence of the understanding of the parties was not admissible. In view of the nature of the subject-matter of the contract, the known use for which it was ordered, and its fluctuating market value, the time of delivery was an essential element of the contract.Standard Scale and Supply Co. v. Baltimore Enamel, etc. Co.,
It is clear that by any reasonable interpretation an attempted delivery on September 6 does not answer the requirement of the contract as to time. The result is the same if the term is regarded as importing a reasonable time after the expiration of the month named. The circumstances to be considered on the question of a reasonable time for delivery are such as the parties may be supposed to have contemplated in a general way *128
when making the contract. Robinson Clay Prod. Co. v. AmericanLoco. Co., 56 Misc. Rep. 589, 107 N.Y.S. 69. Strikes or freight embargoes which are not provided against in the contract would not excuse delay or affect the question of reasonable time for delivery. Eppens, Smith Wiemann Co. v. Little-john,
Nor would the question be affected by the rule of priority adopted by the plaintiff. The plaintiff's inability to make earlier delivery because of other orders to be filled would afford no defense. Mr. Heaphy was entitled to stand upon his contract unaffected by such orders. Emack v. Hughes,
When the facts are in dispute, what is a reasonable time for the delivery of goods sold is ordinarily a question for the jury under proper instructions. This is so except where only one inference can reasonably be drawn, or where the time is so short or so long that the court may declare it reasonable or unreasonable in any event. Note, 6 Ann. Cas. 245. The true rule is well summarized in American Oak Extract Co. v. Ryan,
The facts material to the issue presented by the motion were undisputed, and admit of but one conclusion. The tender of delivery was not made within the time required by the contract, and Mr. Heaphy was justified in refusing to accept the sugar. If the delay had been due to the failure of the steamer to arrive in port on time a different question would have arisen. The shipment arrived early in July. But for the strike and embargo, which are of no significance because not contracted against, it would have been within the power of the plaintiff to deliver the sugar well within the time specified. In the circumstances it should be held as a matter of law that the attempted delivery was not within a reasonable time, even if the contract is given the construction claimed by the plaintiff.
The plaintiff relies specially on Loomis v. Norman Printers'Supply Co.,
The holding that it was error to deny the defendant's motion for a directed verdict makes it unnecessary to consider other exceptions argued.
Judgment reversed and judgment for the defendant to becertified to the probate court.