3 Neb. 123 | Neb. | 1873
McClary sued Goodrich in the court below to recover damages alleged to have been sustained by him in consequence of the failure and refusal of Goodrich to deliver a quantity of wool which he had sold to McClary.
A very brief and crude memorandum of the contract entered into for the delivery of the wool, is attached to the petition and is as follows:
“ Agreement made this 8th. day of April, 1872, between Orson Goodrich and J. S. McClary. That Orson Goodrich delivers his cutting of wool to J. S. McClary, by June 5th, 1872, at Norfolk, Nebraska, at 38-£ cents per pound, the understanding that on delivery of wool at Norfolk, to advance one hundred dollars, and the bal. as soon as gets return from said wool.
Signed this 8th day of April 1872.
Advanced on the above, five dollars.
(Signed.) Orson Goodrich.
J. S. McClary.
It is further alleged that the wool thus contracted for, was that which was -then growing on Goodrich’s entire flock of sheep, numbering about four hundred and seventy-five head; that by reason of the failure to deliver the wool, the plaintiff McClary was damaged to the amount of five hundred dollars.
The defendant, Goodrich, in his answer admits the making of the contract, but alleges that he duly tendered the wool, which McClary refused to receive.
Several exceptions were taken to the rulings of the court, during the progress of the case; but we notice only those which we deem important; and these may be included under two heads.
1. Those which relate to the admission of parol testimony in explanation of the memorandum, and
' 2. Those which relate to the rule of damages.
It is clearly shown by the evidence that soon after making this contract, and before shearing his sheep, Goodrich sold his entire flock to one Thomas, of Eremont, thus disabling himself to comply with his agreement. Why this sale was made does not distinctly appear, but it is quite probable that an advance in the price of wool may have had something to do with it. But whatever may have been the inducement, it is enough for us to know that it was voluntary on his part, and that he purposely put himself in a position to violate his agreement and thereby damage McClary.
It is urged upon our attention, with a good deal, of earnestness, that the words, “ Ms cutting of wool ” should be construed to mean such wool alone as Goodrich should actually shear from sheep which he happened to have on hand at the time of shearing, whether they were few or many, and that no testimony should have been given as to what particular sheep, or the number thereof, were intended by the parties.
To such a construction we cannot assent. We think it is clear that both parties intended by the use of these words, to include all the wool grown upon all the sheep which Goodrich had on hand when the contract was made, unless
We must hold, therefore that it was important to know the number and kind of sheep, which Goodrich owned at the date of this contract, and inasmuch as the memorandum is silent on this point, resort to parol testimony was strictly proper. In holding thus we in no wise trench upon the rule, so urgently invoked by counsel for plaintiff in error, that the terms of a written contract must not be changed and varied by oral testimony. It does not change the contract but supplies an omission, without which, in case of disagreement of the parties, it would be ambiguous and wholly inexplicable.
It is true that the form of the question put to McClary is objectionable. He was asked to give his “understanding of what was meant by the words, outbwig of wool.” This was entirely immaterial, and the objection should have been sustained; but inasmuch as the answer did not respond directly to the question, and gives the facts as they transpired, the conversation between the parties on the point in dispute, the error was without prejudice and must be disregarded. His answer was that “ the contract wás made with reference to a flock of from four hundred and sixty to four hundred and seventy head of sheep, which Goodrich then owned.”
As to those exceptions which go to the rule of damages recognized by the court in the admission of testimony, it is only necessary to say, that the true rule of damages is the difference between the contract and market price, at the time and place of delivery, and that we fail to discover any error in this particular.
From a careful examination of the record, we are convinced that if either party has reason to complain it is not the plaintiff in error, most certainly, but rather the defendant in error because of the smallness of the damages which the jury gave him. When a person takes upon
Judgment affirmed.