20 N.Y.S. 491 | N.Y. Sup. Ct. | 1892
Lead Opinion
No order having been entered denying a motion for a new trial, and no request having been made by the plaintiff to go to the jury, no question of fact is presented for review; and the only exceptions before the court are those taken by plaintiff to the rulings refusing to admit evidence with respect to the custom prevailing in regard to the shipment of goods from Turkey to New York. The parties to this action entered into three contracts of substantially the same tenor, but of different dates, for the purchase of 1,100 bags of Smyrna canary seed, to be shipped in March, 1887, on the steamer Aleppo from Turkey'. The ground upon which the seed was re-. jected, and on which at the trial the complaint was dismissed, was the insistence of defendant that the contracts required a direct shipment from Turkey •to New York on the steamer Aleppo, while the evidence shows that, though the seed was shipped from Bodosto in Turkey on the steamer Aleppo, the' latter conveyed the cargo no further than Liverpool, where the seed contracted for was reshipped, and arrived in New York on the steamer Aurania. The question therefore is whether a contract such as was here made between the parties, which provided that the seed was “to arrive, March shipment, per steamer Aleppo from Bodosto.” has been fulfilled by a delivery in 'the city of New York by the steamer Aurania. It is insisted by appellant that the contracts do not expressly say that the shipment should be to New York on the Aleppo, but merely on the Aleppo from Turkey; that the intention of the parties was that the shipment should be made from Turkey
It must be regarded as settled law that, where contracts are plain, unambiguous, and easily understood, no proof of custom or evidence extrinsic of the contracts themselves can be resorted to, it being the duty of the court to give to the language employed its ordinary and reasonable meaning. Another well-recognized rule of construction is that no evidence of custom or usage is competent to vary or contradict the express terms of a written contract; resort to custom and usage being permissible only where it is necessary to supply an omission or annex an incident entirely consistent with the written terms of the contract. As stated by Starkie on Evidence, p. 710: “In many instances evidence of custom and usage is admissible for the purpose of annexing incidents to the terms of a- written instrument concerning which the instrument is silent, although if any condition or term in the contract is necessarily repugnant to or inconsistent with the custom, the latter is excluded.” It is true that merchants contract ordinarily with reference to established customs and usages in their particular business; and where the contract is not in writing, or, if in writing, an ambiguity exists therein, or the contract is silent as to some incident connected therewith, it is competent to have resort to custom or usage for the purpose of showing what the contract made between the parties was. Notwithstanding, however, the existence of customs and usages in a trade or business, it is perfectly competent for the parties to enter into a written contract whose terms are inconsistent with such usages. And when the terms are clear and unambiguous, and, by giving to the language employed its ordinary and well-defined meaning, but one construction is open, it is clear that the terms of the agreement cannot be impaired or destroyed by evidence extrinsic of the contract relating to custom or usage. We think that the contract here, fairly construed, regard being had to the language used, was one by which the plaintiff contracted to sell the seed to arrive by the steamer Aleppo from Turkey to New York; and that evidence tending to show a custom of the trade, or that vessels never came directly from Turkey to New York, would be permitting the plaintiff to interpolate into the contract terms which would change the construction that the language used would require us to give to it. It is insisted by appellant that whether the seed came from Turkey directly by the Aleppo, or was transshipped at Liverpool to another vessel, is unimportant, and should not have attached to it weight sufficient to justify a rejection by defendant of the contract. Our attention is called to the fact that the answer does not allege that this circumstance of the change is of any consequence, and that it does not state any facts to show that it was of any importance, pecuniarily or otherwise, to the defendant; it being conceded, moreover, that in all other respects the seed tendered and rejected complied fully with the description contained in the express terms of the contract. We are not at liberty, however, to determine the relative importance of terms in a contract, nor have we the power to reject any provision of a contract which the parties themselves have inserted, and which they may have deemed important; nor in an action such as this was it necessary for the defendant to show in what respect he was injured by such change.
The plaintiff brought this action to recover damages for a breach of the contract, and before a recovery could be had in such an action it was essential for him to show that he had fully complied with all the terms and conditions of the contract to be performed on his part. The question, however, as
Van Brunt, P. J„ concurs.
Concurrence Opinion
I concur, for the reason that the fair constru ction of the contracts is that the goods were to. be sent from Turkey to Hew York by the