(after stating the facts as above). This contract was hot to deliver the amount of coal which six vessels of average capacity could lift. It was not a tonnage contract at all, but an undertaking to fill six steamers with coal and send them to Rio. The seller was not obliged, nor indeed was he permitted, to send more or less than six steamers; his offer to substitute schooners, for example, was not in performance, and indeed was not so suggested; it was a proposed modification. • Hencе the capacity of the customary steamer was not an issue, unless we are to read the engagement as imposing on the seller the obligation of securing six steamers of- substantially equal burden, or possibly of an aggregate burden of 39,000. We think that the contract was simpler than that; it referred, as parties must always be assumed to refer, to the past transactions between them, certainly when these had been so, many as. here, and had extended over so long a time.
“Cargoes” meant cargoes as they had dealt in them, not as others had. This is, of course, a very common way to ascertain the meaning of language (Maydwell v. Rogers Lumber Co.,
However, the earliеr cargoes were not, and of necessity could not be, of one size; Ships varied, and the parties had left it to the seller to choose. The meaning of the tеrm was that it should be inside the limits within which the parties had theretofore dealt; that is, 5,000 and 9,000 tons. It does not, indeed, follow a priori that the choice between those limits lay with the seller. Crystal Paper Co. v. Robertson Co.,
In the ease at bar this could not have been the buyer, and indeed he makes no claim to six cargoes of 9,000 tons each. That would, under the circumstances, have imposed a plainly unreasonable burden on the seller; besides, in several instances in the past, when no tonnage had been specified, the chоice of ships had been left to seller, whose duty it was to charter them. We construe the contract as biiiding the seller to ship six cargoes of at least 5,000 tons’ each, and giving, him an option to choose larger vessels up to the limit of 9,000.
Thus the question of custom did not-enter into the case at all; the judge chose the wrong issue to submit tо the jury, and should .have granted the seller’s motion to strike out the sixth article of the complaint, which alleged it. This surplusage we can ignore; and the pleading thereupon stands as alleging a contract to deliver six steamers of 39,000 tons. The variance between the capacity alleged and that proved is as little important as that between the market value at Rio and that found by the jury. The seller complains that the buyer .must recover secundum allegata, but that is a plea to which in modem times courts give little heed. The trial developed the facts, and the pleadings are only to prevent surprise. Indeed, even in straiter times there would here havе been no change in the “cause of action,” however that tortured phrase be read. We do not mean to suggest that we should have stood on the point, if there had been, but we need not take that up here.
Moreover, construed as we construe this contract, there was no issue for the jury, except the market vаlue at Rio. The breach was wholly unexcused, as we shall show1; the contract was for the court, and it was merely a question of the buyer’s loss. We can, as it chancеs, tell as accurately what the jury found to be the market value at Rio as
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though they had fixed it by special verdict. The judge told them to bring in a verdict for the seller, unless they fоund that there was a custom in the trade by which a cargo meant 6,500 tons. They must have so found, and from it the tonnage follows. This, divided into the gross amount awarded, fixes the market price at Rio as they found it. Therefore the ease is proper for a remittitur. Van Boskerck v. Torbert,
There remain the two defenses, the statute of frauds (Personal Property Law N. Y. [Consol. Laws, e. 41] § 85) and the excuse for nonperformance. The argument as to the first is that, as the writings used the word “cargoes” alone, the memorandum was not sufficient, because it was necessary to go оutside to learn what was the quantity sold. In this we must distinguish, as Professor Williston points out, between matters not incorporated, which define the meaning-by express agreement of thе parties and by an independent standard of reference. Thus in Borum v. Swift & Co.,
There was no excuse for the seller’s failure to perform. No doubt we have gone far since Paradine v. Jane, Aleyn, 26, but a promise still involves risks that the promisor may find burdensоme or even impossible to meet. Day v. U. S.,
The other points raised on the seller’s appeal do not require discussion. Thе buyer’s appeal from the jtidge’s refusal to allow interest must be denied. The case was one in which the jury might have allowed interest, but the buyer made no such request, and thе record does not therefore raise the point. The court had no power to add interest to the verdict, and the request came too late.
The judgment is therefore reversed, unless the plaintiff within 10 days files a remittitur of nine thirty-ninths of the recovery, with interest. If it does, the judgment is affirmed for the reduced -amount.