215 A.D. 617 | N.Y. App. Div. | 1926
The theory of the plaintiffs’ cause of action is that the defendants, as brokers, have failed in their duty toward the plaintiffs by whom they were employed, and thus occasioned the plaintiffs damage. The plaintiffs are commission merchants, with offices in the city of New York, and the defendants are duly licensed sugar brokers, with offices and places of business in the city of New York and the city of Philadelphia. On the 19th of May, 1920, plaintiffs received a cablegram from Antwerp offering them 600 tons of granulated sugar for shipment June, July and August at twenty-four and one-fourth cents per pound. The plaintiffs then offered the sugar for sale through a broker named Francis H. Goecker. Goecker met the defendant Joseph B. Turner, Jr., the same day and offered him, on behalf of the plaintiffs, said 600 tons of Belgian granulated sugar for shipment over a period of three months, June, July and August, at a price of twenty-four dollars and eighty cents per 100 pounds, c. i. f., New York. Within the course of an hour he heard from Turner, who told him that the offer was accepted. Goecker then reported to his principals, the plaintiffs. He further says that the above quoted terms are the only terms quoted by him to Turner', and that he did not say “ ex-dock.” After this lapse of time he is unable to say whether he said anything about an irrevocable letter of credit or not. That such a letter of credit, however, was mentioned is shown by the office memorandum of Turner Brothers, made before any other communication with them, which recites: “ Irrevocable letter of credit to be established upon signing of contract.”
In an action brought later in Philadelphia, Joseph B. Turner, Jr., testified as to the receipt of the offer of the 600 tons of Belgian granulated sugar; that he communicated that offer to the Phil a
After the sugar had been disposed of, as above related, the plaintiffs brought an action against the Breyer Ice Cream Company upon the theory that the Breyer Ice Cream Company had contracted with the plaintiffs to purchase this sugar; that the Breyer Ice Cream Company had defaulted upon its contract and thereby occasioned damage to the plaintiffs, and sought in that action to recover their damages. The Breyer Ice Cream Company answered and denied the contract. The defendants were inter
As to the first cause of action (the loss upon the sale of the sugar) we have this situation: The plaintiffs employed the defendants as brokers to sell 600 tons of sugar. The defendants reported that they had sold the sugar. This was not true. No sale had been made. The plaintiffs relied on the defendants’ representation that they had sold the sugar and completed their purchase from the Antwerp concern which had the sugar for sale. Under these circumstances a cause of action would accrue in favor of the plaintiffs for the loss, if any, which accrued to them by reason of the failure of defendants to truthfully report in relation to the sale. We are, therefore, called upon to decide, did the testimony of the plaintiffs show such a state of facts as to relieve the defendants from this liability. In determining that question the plaintiffs insist that they are entitled to have adopted the construction
We are, therefore, called upon to determine whether the findings of fact are supported by the evidence, and in doing so the findings must be sustained unless the evidence preponderates against them. Some of the findings of fact, essential to the judgment rendered herein, are contradicted by other findings of fact. The fifth finding of fact is to the effect that the defendants were not informed on the 19th day of May, 1920, that the sugars were at Antwerp. The ninth finding of fact sets forth a memorandum signed by the
In addition to establishing a cause of action, the plaintiffs endeavored to establish the amount of their damages. The fourteenth finding of fact, to the effect that from and after the nineteenth day of May, and throughout the month of June, 1920, the reasonable market price of said sugars was at least twenty-four dollars and eighty cents per 100 pounds, and that from May twenty-sixth to June thirtieth all of said sugars could have been sold in the open market in New York for shipment from Antwerp during the months of June, July and August, at a price equal to or greater than twenty-four dollars and eighty cents per 100 pounds, is contrary to the weight of the evidence. The evidence shows that for some portion of the time mentioned sugar for immediate delivery could have been sold in New York for a price equal to, and in some instances exceeding, twenty-four dollars and eighty cents per 100 pounds. The evidence, however, does not show that those prices could have been obtained for sugars to be shipped during July and August. It is conceded that the sugar shipped in June brought the contract price and no loss is claimed thereon. Some of the quotations of prices represented prices where the seller had paid the duties, and the testimony shows that this made one and three-
After the defendants reported a sale of the sugar upon the terms proposed by the plaintiffs, the plaintiffs prepared a form of confirmation or contract to be signed by the purchaser. This form is set forth in finding number nine and recites a sale through the defendants, as brokers, and is signed by them. The tenth finding of fact is to the effect that this proposed contract contained terms wholly different from the terms communicated by the defendants to the Breyer Ice Cream Company as the terms upon which the sale was to be consummated, and it is found as a conclusion of law that the proposal of this contract constituted a withdrawal of the terms theretofore submitted and a refusal on the part of the plaintiffs to carry out the same, and that such withdrawal and refusal canceled and rendered void all previous acts. It was testified upon the trial, without contradiction, that there was a standard form of c. i. f. letter of credit contract; that the contract printed in finding nine was such standard form, and that such a form was well recognized in the trade.
In Corpus Juris (Vol. 13, p. 271) it is said: “ Every trade, business, or calling has its usages, and persons who make offers relating thereto assume that all the customary incidents of such callings shall be part of the agreement and hence do not expressly refer to them. Although unexpressed, they are implied terms of the contract; and this is true in the case both of written and of oral contracts.”
This rule of law applied to and governed the contract proposed in this case, and until contradicted the testimony as to such custom and usage must be accepted, and the court had no right to set up its own view in opposition to the testimony so given.
The fourth finding of fact is to the effect that the terms proposed by the plaintiffs included the provision “ ex-dock.” Mr. Goecker, who communicated the plaintiffs’ offer to the defendants, ° testified positively that that provision was not in the proposition as communicated by him to the defendants.
The findings of fact above mentioned should be reversed; the conclusions of law annulled; the judgment reversed upon the law and the facts, and a new trial (as to both causes of action) granted; costs to abide the event.
Kelly, P. J., Rich, Manning and Young, JJ., concur.
Judgment reversed upon the law and the facts, and a new trial granted as to both causes of action, costs to abide the event. The 4th, 5th, 7th, 9th, 10th, 11th, 16th, 20th and 25th findings of fact are reversed, and conclusions of law annulled, in accordance with opinion. Settle order on notice.