Coast Fir Lumber Co. v. Parker

213 P. 617 | Or. | 1923

HARRIS, J.

The defendants complain because the court permitted George E. Miller to testify as to the meaning of: “Terms regular,” and “when 60 days,” found in the instrument of November 24, 1919. In substance, the witness explained that the terms mentioned had respectively, according to general and uniform usage of the lumber trade, certain, definite and universally understood meanings, and that these meanings were as alleged in the complaint. Miller explained that in preparing contracts the word “regular” is sometimes used, at other times “90% advance” is employed, and sometimes the words “West Coast” are written, but that they all mean the same thing, and that by usage of trade the words had the meaning attributed to them. This witness was corroborated by other witnesses. There was an abundance of evidence to sustain findings that “terms regular” and “when 60 days” then meant and now mean what the plaintiff alleges they mean. At the trial the defendants objected to evidence concerning the meaning of “terms regular,” because “the parties are bound by the ordinary acceptation of these words; unless ‘terms regular’ had a peculiar signification and that signification was known to the defendants”; and when the court asked the attorney for the defendants what he thought the words meant, he answered: “I don’t think it means anything in this case.”

The defendants objected to Miller’s testimony explaining the meaning which the usage of the lumber trade gave to the words, “when 60 days,” on the ground that “the testimony is not competent to explain what the words mean, because it is apparent what they mean. ’ ’

The ground, relied upon by the defendants in their assignments of error and in their printed brief for the objection to evidence explaining the meaning of “terms regular,” and “when 60 days” is that such testimony tended to vary tile terms of the -written contract. The court was of the opinion that the quoted words were ambiguous and for that reason permitted the evidence to be received.

There is a vast difference between contradicting or varying the plain and ordinary meaning of words by proof of usage and explaining, by proof of usage, the meaning of words which, because of their position in a writing and without explanation, are indefinite, uncertain and ambiguous. Obviously the words “terms regular,” when standing alone, of themselves suggest ambiguity and the necessity for explanation. The defendants contend in their printed brief that they are meaningless. Any person who is not familiar with the nomenclature of lumbermen will immediately, upon reading the instrument, assume and recognize the fact that the words now under discussion have a meaning known to and understood by lumbermen, even though not known to him; for the words “terms regular” imply that there are regular terms governing such sales. The testimony of Miller and that of the corroborating witnesses did not vary the terms of the contract; but upon the contrary the testimony explained the meaning of the terms. The testimony did not contradict or conflict with any of the words in the contract. The instrument was prepared by lumbermen and naturally they employed the language of lumbermen. The challenged evidence was received as a means of interpreting the contract and not for the purpose of importing new terms into it or for the purpose of varying terms already in it. With the evidence of Miller and that of the corroborating witnesses the language of the contract is clear; but without such evidence it is ambiguous. The plaintiff complied with every rule prescribed for the reception of evidence concerning trade usage and custom: Barnard & Bunker v. Houser, 68 Or. 240, 243 (137 Pac. 227); Holmes v. Whitaker, 23 Or. 319, 323 (31 Pac. 705); Savage v. Salem Mills Co., 48 Or. 1, 11 (85 Pac. 69, 10 Ann. Cas. 1065); Yreka Lumber Co. v. Lystul-Stuveland Lumber Co., 99 Or. 291, 297 (195 Pac. 378); Simms v. Sullivan, 100 Or. 487, 492 (198 Pac. 240, 15 A. L. R. 678). The testimony of Miller was competent. The court adequately and correctly charged the jury upon the subject of usage; and there was no error in the instructions given or in the refusal to give instructions requested.

Over the objection of defendants, Miller was permitted to explain “what is meant in the lumber trade and usage by two cars of such dimension material as is mentioned in this contract.” The testimony given by Miller corresponded with the allegations in the complaint. At the trial the defendants objected on the ground that it “is not competent to explain the meaning of the terms referred to in the question.” In their assignments of error the defendants assert that the ruling of the court was erroneous, • because the testimony tended to vary the terms of the contract. The defendants also contend in their brief that in order to recover damages “the injury or damages must be certain”;' but that

“the contract does not specify any determinable amount of lumber required under the contract to be delivered; and hence there is no way under the contract to determine any amount of lumber to be delivered, taking the difference between the contract price and the market price as the basis to figure from.”

The uncontradicted evidence. is that a thousand feet of green lumber of the kind involved here weighs about 3,300 pounds; and this is also the estimated weight adopted by the West Coast Lumbermen’s Association. Cars vary in size and capacity, and consequently some cars will carry a greater weight and therefore more lumber than others.' The capacity of some cars is 100,000 pounds while others will carry 80,000 pounds and still others 60,000 pounds; and there is some evidence to the effect that the capacity' of the smallest car is about 30,000 pounds. In this situation it was peculiarly appropriate for the plaintiff to show what, by the usage of the trade, was meant by “2 cars” of lumber. In Bullock v. Finley, 28 Fed. 514, it was held in an action for “three carloads of brewers ’ rice, ’ ’ that where it did not appear that the contracting parties had agreed to the quantity to make a carload, the custom of the trade fixed the quantity. In 35 Cyc. 210, the rule is stated thus: “Where the goods are sold by the ‘carload’ the term may be construed by the custom of trade.” In 2 Elliott on Contracts, Section 1731, the author states:

“Where the question involved in an action for breach of a contract for furnishing commodities in carload lots is the capacity of a car, it is proper to receive evidence as to the usage among railroad men and shippers in respect to the commodity involved. Such evidence is received to explain and not to vary the contract.”

The court instructed the jury at length upon the subject of usage in connection with the meaning of “2 cars”; and, among other instructions, the court advised the jury:

“If you believe from the evidence that there is no definite or fixed amount of lumber to be sold as fixed by trade usage or custom, then the court instructs you as a matter of law that the contract is unenforceable by reason of it being incomplete. If you believe trade usage and custom does fix it, then the plaintiff is entitled to recover, if you believe from the greater weight of the evidence that there has been a breach of the contract as alleged by plaintiff on the part of defendants and that it has been ready, able and willing to pay upon delivery of the lumber. ’ ’

This instruction was more favorable to the defendants than they were entitled to ask; for even though there is no usage of the trade determining the quantity to be delivered under a contract calling for a definite number of carloads of a given commodity, the courts will not declare such a contract void for uncertainty. Damages will be allowed for a refusal to deliver; but under some authorities the damages will be computed on the amount usually contained in an ordinary car (Seefeld v. Thacker, 93 Wis. 518 (67 N. W. 1142); Bullock v. Finley, 28 Fed. 514; 35 Cyc. 639); while other precedents hold that the contract is binding at least for the number of cars of the smallest capacity: Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462 (34 N. E. 579).

The testimony of Miller explaining the term “2 cars” was admissible. It was competent to show what the term meant in the light of trade usage: Goode v. Chicago, Rock Island & Pacific Ry. Co., 92 Iowa, 371 (60 N. W. 631); Floyd v. Mann, 146 Mich. 356 (109 N. W. 679).

The defendants argue that it was reversible error to receive the confirmation order as evidence. At the trial the defendants objected to the confirmation order on the ground that it was not the contract sued on; that it contained language different from that in the contract upon which the action was based as well as language not found at all in the contract set up in the complaint. The plaintiff offered the confirmation order on the theory that it did not vary the terms of the contract but simply amplified it and “is strictly in accordance with the testimony that it confirms this memorandum order accepted and signed by Parker & Son.” The court held and specifically instructed the jury that the confirmation order was not admissible for the purpose of contradicting or adding to the terms of the original contract upon which the action is based, but that it was received as evidence merely for the purpose of showing how the parties dealt and acted in reference to the original contract.

It must be remembered that the complaint is based upon the instrument of November 24, 1919, and that the defendants admitted in their answer that they accepted the order set forth in the complaint. It is true the answer alleges that the lumber was not to be of a greater length than 16 feet, but it is also true that T. T. Parker explained this allegation by testifying on April 12, 1921, the date of the trial, that although he thought he knew what was in the order he “didn’t know the ‘24 foot’ was in that order until the other day. ’ ’ In short the plaintiff alleges and the defendants admit that the latter accepted the order of November 24th, although, in the language of the defendants used in their printed brief, “the legal effect of the order is denied by the answer.” It is true that in their printed brief the defendants contend that the order of November 24th is void because of the uncertainty; but it is also true that the issues made by the pleadings relate to the meaning and legal effect of the instrument of November 24th, and the affirmative matter pleaded in the answer as a further and separate defense assumes the existence of a valid and legal contract. It is not now necessary to decide whether the defendants were bound to deliver lumber “evenly cut and ends trimmed” because that question is not here for decision; but it is a noteworthy fact that the defendants did not object to any statement contained in the confirmation order, and both the defendants and the plaintiff recognized that they had entered into a contract and that the contract so entered into was evidenced by the writing of November 24th: See Shaw Wholesale Co. v. Hackbarth, 102 Or. 80, 100 (198 Pac. 908). Indeed, T. T. Parker testified that the defendants intended to make delivery until the dispute arose between him and Miller on April 7th with reference to the time of payment. The position of the defendants, according to the testimony of T. T. Parker, was on April 7,1920, that they had previously made a contract but that they were discharged from fulfilling it because the plaintiff on April 7, 1920, expressed a refusal to pay concurrently with delivery. The position of plaintiff is that the provision “terms regular” gave it a prescribed time after delivery within which to pay. This was the principal issue in the controversy. The confirmation order contains language which was directly relevant to the words used in the order of November 24th. The confirmation order spells out the meaning of the words “terms regular” and of the words “when 60 days”-, and in view of the limitations fixed by the court upon the use of the confirmation order as evidence, the defendants could not in any view of the case have been prejudiced. The finding of the jury upon the question of the time of payment was for the plaintiff; and therefore payment and delivery were not concurrent acts to be performed simultaneously.

The defendants knew that the plaintiff was buying the lumber to resell; and the defendants were not affected by any change in the ultimate destination of the lumber.

The conclusions thus far expressed necessarily dispose of all of the remaining contentions of the defendants adversely to them; hence the judgment is affirmed. Affirmed.

McBride, C. J., and McCourt and Rand, JJ., concur.