43 Mo. App. 253 | Mo. Ct. App. | 1891
The facts in this case about which there seems to be no dispute may be summarized as follows : First. The plaintiffs are wholesale merchants at Kansas City, who buy goods in large quantities for the purpose of selling them in smaller quantities as the-demands of their customers may require; second, the: defendant is a merchant at Chicago, who deals principally in dried or evaporated fruit and canned goods, having immediate relations by contract with the manufacturers of these goods; third, the defendant had been largely engaged in selling in the Kansas City market: through J. C. Salmon & Co., their agents, for fifteen years past; fourth, that Salmon & Co. had always-exercised the authority of offering the defendant’s goods, and that contracts of sale made by them on its behalf had uniformly been filled; fifth, that many of these-
The following are additional facts which, it appears 'by the instructions, were found from the evidence by thejhry:, First. That the terms, “ strictly choice,” as applied to evaporated apples, had a defined and well-known meaning — namely, that the apples were of good color, cut in rings, had been properly evaporated, and would keep in good condition through the summer next ■ensuing; second, that the apples in question spoiled, :and became worthless either because they had not been sufficiently or pi’operly evaporated in the first instance, ■or because they had subsequently been soaked by having water poured on them in order to make them weigh ; -third, that, although they were fair in appearance when they were delivered, their subsequent spoiled condition was attributable to their condition when delivered; J'ourth, that they were not in fact “strictly choice” in
The’ verdict and judgment were for the plaintiffs. The defendant has appealed.
I. The defendant makes the contention that the plaintiffs’ petition pleads an express warranty, while the trial court instructed the jury upon the hypothesis that it pleaded an implied warranty. The rule of pleading, as we understand it to be, requires that matters should be pleaded according to their legal effect, and that a general allegation that the vendor warranted the goods sold to be of good quality is sufficient. It is wholly unnecessary in pleading, where a mere general warranty of the quality of the goods is relied on, to state whether the warranty is express or implied. Hoe v. Sanborn, 21 N. Y. 352; 1 Smith’s Lead. Cases [9 Ed.J 329. And it would seem that, though the warranty is implied by law, yet, when the implication arises from a statement made, whether a description or a sample exhibited, it is "an express warranty. The class of warranties implied by law, from things said or acts done by the vendor, are entitled to rank, so far as any question of pleading is concerned, as express warranties. Henshaw v. Robins, 9 Met. 83; Hawkins v. Pemberton, 51 N. Y. 198. The rule as to pleading is probábly the same as that which would govern in an action to recover money loaned. On the allegation of a promise to pay, either an express
II. The vital and decisive question which we are required to decide is whether the trial court erred in permitting the plaintiffs to adduce evidence tending to show: First, that the plaintiffs and defendant entered into a contract for the sale and future delivery of evaporated apples in which the term “strictly choice” was used ; second, that this term had acquired by the usages of the Kansas City evaporated apple trade a well-known and defined meaning ; that it had become a trade term having a special signification well known in the city where the contract was made; and, third, to explain to the court the meaning of this technicality. No' doubt these words have a meaning and bearing upon the tr.ue interpretation of the contract. Unable from any natural and ordinary sense of the words to say exactly what their bearing is, we have to admit they are used by those engaged in the evaporated apple trade as a technical term — a term of usage so far as the continuous employment of technical words may be called a usage. That has been deemed to be more properly a usage which has taken words which in c.ommon use singly or together have a meaning and intelligibility to all eyes and ears, and which has by putting them in a particular use, as in some trade or handicraft, attached to them a meaning and effect not consonant with their public or general meaning. Walls v. Bailey, 49 N. Y. 464. The phrase, “ strictly'choice,” is in that category. It is not used as simply the two words which make it up, but as a compound word and phrase, and as such it does not convey to the public or in general a definite sense, in any sense. The simple phrase has
It will perhaps be proper in this connection and before finally disposing of the question under consideration to make some reference to the authorities which have, in a measure, influenced our judgment. In a case in some respects analogous to this (Nelson v. Ins. Co., 71 N. Y. 453) it was held that it was not technically one of usage, but that the evidence was offered to prove the meaning of a mercantile term so as to enable the court to ascertain the contract made. The principle was held to be widely different from the one which obtained where an incident was ■ undertaken to be annexed to a contract by usage. It was also held to make a party liable under such a definition did not depend upon the general rules governing the effect of usages. So it has been often held that the admissibility of evidence of this kind is'necessary to enable the court to understand the contract made, and that the elements of a general and uniform usage need not be proved in such a case, and that the evidence is competent whether the definition be sanctioned by usage, local or general, limited or universal. Jones on Com. Contr., secs. 61, 96, 104 ; 1 Greenl. Ev. ; Carter v. Coal Co., 77 Pa. St. 290; Susquehanna Fert. Co. v. White, 66 Md. 444; Whitmore v. Coats, 14 Mo. 9; Kimball v. Browner, 47
The principle upon which the doctrine proceeds is that the parties must be taken to have contracted with reference to the custom or usage. There are two branches of the rule ; one relates to the language used, and evidence is admissible to explain its mercantile or trade meaning ; the other has reference to known usages which prevail as to the subject-matter of cerlain contracts to whose terms incidents may be thereby annexed, provided they are not repugnant to, or inconsistent with, them. Jones on Contr. of Com. & Trade Contr,, secs. 6L; 1 Greenl. Ev..[14 Ed.J sec. 292; Field v. Lateau, 6 Hurd. & Norm. 617; Nelson v. Ins. Co., supra. The rule is well established that if the contract itself, or the circumstances surrounding it, indicate that its words are used in some special sense, it will defeat the intention of the parties to construe them in their ordinary sense, and that which is a rule for obtaining the thought of the contract will be converted into a means of thwarting ips provisions. The fact that the word or words used have a plain, unambiguous and apparent meaning is no reason for the rejection of proof that it is employed in the sense which it has acquired by usage. If it is shown that a special sense is attached by known usage of trade to words of a contract, it is presumed that the words bear their special meaning. Jones on Contr. of Com. & Trade Contr., sec. 62; Kimball v. Brainer, 47 Mo. 398; Soutier v. Kellerman, 18 Mo. 510; Whitmore v. Goats, 14 Mo. 10. In the last cited case the action was on a contract for the delivery of “prime barley.” The court says : “There is nothing improper in referring to the usage of merchants as to the terms employed by them in this contract.. The parties were merchants, commission merchants, employed for years, as it appears from the evidence, in buying and selling grain, barley among the other kinds. They
The meaning of terms at the place where the parties use them, or to which they look as the seat of the contract may also control their interpretation. It is proper, therefore, to receive evidence of the particular sense which any word of the contract has acquired by usage in any special locality. Jones Contr. Com. & Trade Contr., sec. 63 ; Wharton on Con., sec. 63. The reason for resorting to such testimony is that, in the hurry of trade and the multitude of contracts, brevity and condensation are absolutely essential. Words to the layman of meaningless or of limited force have, in the minds of those familiar with them, a comprehensive and intelligent definition. Accordingly, it has been settled that parties engaged in a particular trade, and who use a mercantile term having a fixed meaning in the trade, are. conclusively bound to use it in that sense. They can no.more be heard to say that they did not know the meaning or did not use it in that sense than a party in ordinary cases can escape a contract by saying that he did not understand the effect of the words used. Where two in a particular trade deal with each other in the language of their trade, they are presumed to speak the mercantile meaning of words of that trade. Buckle v. Knoop, L. R. 2 Exch. 125; Hudson v. Ede, L. R. 3 Q. B. 412; Appleton v. Fisher, 34 Md. 540; Houghton v. Ins. Co., 131 Mass. 300; Daniels v. Ins. Co., 12 Cush. 416; Doane v. Durham, 79 Ill. 131. And the decisions of the courts in the various jurisdictions seem to be quite uniform and to result in this, that when words have acquired an exact and technical meaning in any
The term in question may be proved like any other fact. The witnesses may testify as to their own experience and from information derived from others. Hill v. Morris, 21 Mo. App. 256, 262; Wear v. Sanger, 91 Mo. 348, 356; Sumner v. Tyson, 20 N. H. 384, 387; Scudder v. Bradbury, 106 Mass. 422, 428, 429; Commercial Bank v. Bank, 19 Barb. 391, 401; Jones Com. Con., secs. Ill, 114; Lawson on Usages, sec. 57. Evidence, however, showing that by the local usage a term possesses a special commercial sense is inadmissible when both parties to the contract in which the term is employed are not of the same trade or kind of business. In such case there is no presumption that both parties contracted with reference to such local usage and made it a part of their agreement. There is a distinction, therefore, between a case of this sort and one where both of the contracting parties are engaged in the same kind of trade or business. The distinction is noted in many of the local usage cases. Wall v. Bailey, 4 Sickles, 464, cited by plaintiffs, is a type of that class. It results from what has been said that the circuit court did not err in admitting the evidence in question.
III. The plaintiffs’ second instruction told the jury that if the evaporated apples were not present at the time of the sale, but were sold by the description of “strictly choice,” then the law implied a warranty that the apples to be delivered would be equal to those described. It has been again and again determined in this state that a sale by description imparts a warranty that the property sold is of that description. Voss v.
An eminent English judge has said, that “It is the duty of the court in administering the law to lay down rules calculated to prevent fraud; to protect persons who are necessarily ignorant of the qualities of the commodity they purchase, and to make it to the interest of manufacturers and those who sell to furnish the best article that can be supplied.” Jones v. Bright, 5 Bing. 533. This admonition should be kept steadily in view in applying the rule of caveat emptor.
IV. No error is perceived in the rulings of the court in excluding testimony offered by defendants in relation to the usage outside of Kansas City. In the light of the authorities which we have cited the usage prevailing elsewhere would be wholly immaterial to the issue, and, therefore, properly rejected. Parkhurst v. Ins. Co., 100 Mass. 301; Allen v. Lyle, 35 Miss. 513; Mason v. Franklin, 12 Grill & J. 468; Nichols v. De Wolf, 1 R. I. 277; Means v. Waples, 3 Houst. 581; Ober v. Carson, 62 Mo. 209.
V. The objection that the verdict is a general one does not apply because while there were two counts in the petition there is only one cause of action stated. Owens v. Railroad, 58 Mo. 386; Lancaster v. Ins. Co., 92 Mo. 460; Campbell v. King, 32 Mo. App. 38. Many other questions collateral to that which is conceded to be vital and decisive of the case have been discussed both in the argument of counsel here at the bar and in their briefs, which we have not deemed it necessary to notice, in view of the grounds upon which we have disposed of the case. The judgment will be affirmed.