Goldberger v. Arcadian Waukesha Springs Co.

61 Ind. App. 1 | Ind. Ct. App. | 1916

Caldwell, J.

Appellee brought this action against appellant to recover for a bill of medicinal water, etc., sold by the former to the latter, as per a written order, in part as follows:

Order Arcadian Waukesha Springs Co., June 4, ’12. Ship to Morris Goldberger, at Ft. Wayne, Indiana. * * *

No. Cases. Price.

136 cs Large Water.................... 3.50

25 cs Large Ginger Ale................ 5.00

5 casks R. B. pts. Imp. Style ale.....7.00

* * * (Signed) Morris Goldberger.”

1. 2. A trial by jury resulted in a verdict for appellee for $670, on which judgment was rendered, from which this appeal is prosecuted. Appellee urges that appellant’s brief is so defective that when measured by the rules of this court nothing is presented for our consideration. However, we are able to gather from the brief that appellant has directed certain propositions to the alleged error of the court in hearing parol testimony to elucidate the order. Thus, the court heard such testimony respecting the meaning the parties intended to convey by certain abbreviated words and expressions in the order, and in what sense they are used. Thus, that “cs” means “cases”; that “large water” means “large water bottles holding one fifth of a gallon”; that “R. B. pts, Imp. Style” means “round bottom pints imported style”; that the figures set under the heading “price” mean the price in dollars per case or cask, rather than the price of the entire item.

Appellant more particularly contends» that the court erred in hearing such evidence on the subject of price, it being his position that the order in plain and unambiguous terms specifies tbe price for tbe entire item in each instance, and that tbe court, therefore, in bearing parol testimony that tbe parties intended tbe figures quoted to mean tbe price per ease and cask, violated tbe principle that parol evidence cannot be beard to vary or contradict a plain, unambiguous writing. Tbe parties agree that price in dollars is meant by tbe figures used.

It will be observed that tbe order does not in terms specify tbe price as being for each ease or cask or as tbe total for each item, and also that tbe aggregate amount of tbe selling price is not indicated. To arrive at tbe total, it is conceded that a calculation is necessary. Appellant contends that such calculation should be a mere addition, arriving at $15.50; while appellee contends that there should be a series of multiplications and an addition, arriving, at $636 as a total. There was other evidence that each case contained fifty bottles and each cask one hundred and twenty bottles, or a total of 8,650 bottles, and that on tbe return of tbe empty bottles appellee allowed a credit of from one cent to three cents per bottle. It is thus evident that if appellant is right in bis contention, tbe sale of tbe goods here was decidedly a losing venture on tbe part of appellee. Appellant testified as a witness that tbe water in certain of tbe eases was defective, and in such condition it was not worth to exceed $1.75 per ease. These observations are made, not that they are important, if tbe written order is plain and unambiguous, but to indicate that tbe parties in fact understood tbe order as interpreted by appellee, and as construed by tbe court, through tbe aid of parol testimony. In our judgment, however, tbe order is incomplete and ambiguous on its face, to tbe extent that tbe court properly admitted the parol testimony complained of. Driscoll v. Penrod (1911), 176 Ind. 19, 95 N. E. 313; Jaqua v. Witham & Anderson Co. (1886), 106 Ind. 545, 7 N. E. 314; Barton v. Anderson (1886), 104 Ind. 578, 4 N. E. 420; Lake Erie, etc., R. Co. v. Bowker (1893), 9 Ind. App. 428, 36 N. E. 864; Jones, Evidence (2d ed.) §453, et seq.

The court did not err in giving instruction No. 9 or in refusing to give No. 6. It may be said in addition that in the motion for a new trial, error is not predicated on the giving of instruction No. 9. Moreover in that department of appellant’s brief devoted to “points and authorities”, neither of these instructions is. mentioned. The most that can be said is that in such department there is a single assertion, unsupported by argument or authority, which might be construed as referring to instruction No. 9. There are no other questions presented. Judgment affirmed.

Note. — Reported in 111 N. E. 316. See, also, under (1) 3 C. J. 1430; 2 Cye 1013; (2) 17 Cye 682, 687.