150 Ky. 229 | Ky. Ct. App. | 1912
Opinion op the Court by
Eeversing.
The Glenmore Distilleries Company bought from the Columbia Malting Company a number of cars of malt under the following contract:
Owensboro, Ky., Sept. 18, 1908.
Columbia Malting Co.,
234 LaSalle St.,
Chicago, 111.
Dear Sirs:—
(1) Confirming our telephonic agreement with your Mr. E. A. Graff:
(2) You will please ship to us at Owensboro, Ky., one car of your best Distillers’ Malt (clean, sound and screened) in bags.
(3) It is understood that the above car, as well as each car of' malt we may receive from you during the season shall on analysis by our Louisville Chemist, be found not to exceed 5%% moisture, shall not contain less than 68.14% extract, shall have a dias-tatic power of not less than 1450, and shall be satisfactory to us.
(4) Each 34 pounds of malt equals a bushel, with the understanding that you guarantee the weights, on arrival at our bins, to be within one per cent of your invoice weights.
(5) Price shall be seventy-six and one-half cents, (76y2c) per bushel f. o. b. Owensboro, Ky., and terms shall be 30 days net from the first of the month following the arrival of the malt, with privilege on our part to make prior payments of any invoice or invoices, at a discount at the rate of 6% per annum.
(7) It is understood that if, during the above season, there shall be made any reduction in freight rate on malt from Chicago to Owensboro, we are to be given advantage of the decrease on such car or cars shipped at the said lower rate.
(8) This letter is in duplicate, one copy of which please accept and return to us.
Yours truly,
Glenmore Distilleries Co.,
By James Thompson,
Accepted: Its President.
The Columbia Malting Co.,
By E. A. Grape, President.
The ears of malt were duly shipped from the plant of the appellant in Chicago to the distilling plant of the appellee in Owensboro and there used in distilling whiskey. The distilleries company did not cause any chemical analysis to be made of any of the malt before using it. After the malt had been used, when the malting company demanded payment, the distilleries company declined to pay, upon the ground that the malt had not come up to the specifications named. The malting company thereupon brought this action in the Daviess Circuit Court to recover the agreed price of the malt. The distilleries company filed answer, pleading the defective condition of the malt, and asserting that the company had been damaged in the sum of $1,143.89. Demurrer was sustained to the original answer upon the ground that the defendant had seen fit to accept and use the malt without making the chemical test or analysis provided for in the contract. The defendant then amended it. In the amendment it alleged that it was a part of the agreement that the defendant should have the right to use the malt without prior analysis;
1. That though the malt furnished by the appellant did not come up to the terms of the contract, the distilleries company having accepted and used the malt after opportunity of inspection, without exercising its contract right, of analysis, cannot recover damages for any defect in it.
2. That it is neither plead nor proven that anything was omitted from the written contract by the mutual mistake of the parties — -that a written contract cannot be altered by allegation and proof of omitted matter, unless the omission was by the mistake of both, and not one, of the parties.
3. (a) That it is not proven that there was any custom of the trade which would allow the distilleries company first to use the malt and thereafter recover for its defect; and (b) that even if there were such trade custom, it is not permissible to prove it where it is repugnant to and inconsistent with the express terms and meaning of the written contract.
Appellant concedes in its brief that where a vendee receives personal property with a fair chance to inspect it, he cannot thereafter claim that the go'ods were defective in character or quality. It argues, however, that the principle is not applicable here because it
But, says the appellee,, it was agreed between the parties that the malt might first be ground without analysis, and afterward complaint be made; and that this understanding was left out of the contract “by oversight and mistake of the draughtsman.” 'The draughtsman of the contract was the president of the distilleries company. He acted for the company in drafting it. He does not testify that the agreement plead was omitted from this contract by misake. He does endeavor to say that during transactions in the past between the same parties there had been trouble about malt; that he, the witness, remembered distinctly telling Mr. Graff, of the malting company, that the distilleries (company could not ajnalyze the malt and keep it lying on the track, because of demurrage charges, and that if the the malt did not show up to be first class, it could be shown by analysis; that if the
The third proposition will be discussed as though there had been proven in the case the existence of the trade custom allowing the use of the malt before the making of the complaint; and confine ourselves only to the question whether such trade custom is to be admitted when it is repugnant to or inconsistent with the express terms of the written contract. Let it be remembered that the contract itself says how the malt was to be tested. In Tamplet, &c. v. Saffell, 15 K. L. R., 31, it was said no custom or usage, however well established, could be incorporated into' a contract if it were inconsistent with the clear intention of the parties; that an' express exclusion was not necessary, but that it was sufficient that the custom be excluded by necessary implication. In City of Covington v. Kanawha Coal &
“In tbe case at bar there is nothing equivocal or obscure in tbe contract. The evidence offered does not show that any word in tbe contract was employed in a sense different from its usual or natural meaning. Tbe evidence does not annex an incident to tbe contract, within tbe proper meaning of this term. The contract on its face obligates tbe coal company absolutely to furnish tbe city with all tbe coal it may require, as requested by tbe superintendent of tbe waterworks, at tbe price named in tbe contract. Tbe evidence offered, if admitted, was in effect that there was not an absolute contract to furnish tbe coal, but only a conditional engagement to furnish it, providing tbe coal company was not prevented from doing so by strikes, or other causes beyond its ■ control, which disabled it from getting tbe coal from tbe coal district. This evidence is repugnant to and adds new terms to tbe contract. It does not go to interpret or explain, but to contradict, what is written. If tbe party entering into a contract of this sort desires to protect himself against contingencies, it is incumbent on him to express tbe contingency in bis contract ; and if be fails to do this, in tbe absence of fraud or mistake, be cannot show a custom to tbe effect that bis absolute contract is not what it reads, but only a conditional engagement.” ?
In tbe case at bar it was clearly and unequivocally stated that tbe malt should be tested by anaylsis. It could not, of course,'be tested after it bad been mingled with tbe other components of distillation. Tbe trade custom relied upon here cannot be permitted to contradict tbe express agreement of tbe parties. Tbe testimony as to tbe admission of tbe trade custom was incompetent and should have been excluded.
But, says, tbe distilleries, company, that bad it not accepted the malt, it would have been, compelled to...shut down its business, and that it took several days - to make an analysis. Tbe proof indicates -that- an analysis could be made by a chemist in from one to two days.
The distilleries company further says that not only did the malt have to meet the chemical analysis above named, but that it had to be otherwise satisfactory under the third clause of the letter contract. It knew, according to its own superintendent, the day that it ground the first of this malt that it had too much moisture, would not pulverize, and was unsatisfactory. It should have spoken then, instead of receiving the other cars and grinding them up before speaking.
Other incompetent testimony was admitted against the appellant, but in view of the conclusions' we have reached it is unnecessary to discuss it. The contract was free from ambiguity and was written by the manifestly intelligent hand of the president of the distilleries company, according to the form upon which he himself insisted. The malt, notwithstanding the provisions of the contract and notwithstanding that it was known to be unsatisfactory from the beginning, was accepted by the distilleries company and its identity destroyed in its distilling operations before complaint was made. Under the facts as presented and the law applicable it should pay for the malt.
Judgment reversed and cause remanded.