52 Neb. 9 | Neb. | 1897
The plaintiffs in error, who were also plaintiffs below, alleged as their cause of action against the defendant in the district court for Hamilton county, “that on May 3, 1892, they bought of said defendant five car-loads, or 2,500 bushels, of corn, free on board at Stockham, Nebraska, to grade what is known as ‘No. 3 or better/ at twenty-eight cents per bushel, to be billed at Stockham to order of William Louden, care Omaha & St. Louis Bail-way Company at Council Bluffs, Iowa, and care Wabash Bailway Company at East St. Louis, ito be shipped to Toledo, Ohio, said corn to be graded and weighed at Toledo, and the weights and grades returned from Toledo
“Mr. N. Wild, Stockham, Web.: We are pleased to confirm purchase from you today of 2,500 bushels, or five cars, 3 or better, at 28 cents per bushel, f. o. b. Stockham, twenty days’ shipment, to be shipped within-days, Toledo weights and grades. Bill same to order Wm. Louden, East St. Louis, care O. & St Louis Railroad at Council Bluffs, la., care Wabash Railroad at East St.*12 Louis, and make draft with bill of lading attached on us here. McKee & Warner.”
By reference to the petition it will be observed that the plaintiffs declared upon a warranty, or guaranty, respecting the quality of grain purchased. The title must accordingly be field to fiave passed upon tfie delivery of the corn free on board at Stockham, since in order to recover for a breach of warranty the title must have vested in the plaintiffs. That the com when delivered was such as would have graded No. 3 at Toledo cannot, upon the evidence adduced, be denied. The primary question is, therefore, whether, as 'claimed by plaintiffs, the words “Toledo weights and grades” employed in the contract, import an assurance against actionable negligence by common carriers in the transportation of the corn; in other words., to which of the parties hereto are the railroad companies, upon this record, answerable for the negligence resulting in the loss sustained? That question is, in view of plaintiffs’ own interpretation of the contract, freed from any difficulty which would otherwise attend it. The title having vested in plaintiffs upon the delivery of the com at Stockham, the conditions of the warranty were satisfied, provided said com was in quality such as would have graded No. 3 or better according to the Toledo standard, the question of quality and weight being one of fact to be determined by the jury. In this connection may be cited the recent case of Lord v. Edwards, 148 Mass., 476, the syllabus of which reads as follows: “Warranty is of quality at port of shipment, and not port of destination, under a contract evidenced by the following letter from the sellers to the buyers: ‘We have made sale to you of 1,200 tons extra M. sugars, about No. 9 D. S. in color, at 10.10 per ton, f. o. b., and we understand it is your intention to load same on the Republic on her arrival at M. It is further understood that the sugar is sold on aibasis of 88 degrees pol’r with 3d. per cwt. per degree downwards, and fractions of degree in proportion. The sugars to be thoroughly sam
Exception was also taken to the exclusion of evidence offered to prove that grain purchased free on board in this state is, by recognized custom of dealers, forwarded at the shipper’s risk, and that the title thereto does not pass until inspected and weighed at the point to which it is consigned. The evidence offered was inadmissible: (1.) Because it embraced the mere opinion of the witnesses. (2.) Its tendency was to vary the terms of the written contract as interpreted by the plaintiffs, and was a departure from the cause of action alleged in the petition. (3.) When a custom is relied upon to prove a meaning other than the ordinary significance of words used in a contract it should be pleaded. (Lindley v. First Nat. Bank of Waterloo, 76 Ia., 629.) (4.) It did not appear therefrom that the custom relied upon was known to the defendant, or that it was so well established and so uniformily acted upon as to warrant the presumption that it was known to both contracting parties and that they contracted with reference to it. (Milwaukee & Wyoming Investment Co. v. Johnston, 35 Neb., 554.) We discover no error in the record, and the judgment must be
Affirmed.