Parker v. Selden

69 Conn. 544 | Conn. | 1897

Lead Opinion

Andrews, C. J.

The plaintiff’s cause of action was founded on the order contained in a letter from the defendants, as follows: —

“ Cobalt, Dec. 21st, 1893.

“ R. L. Parker, Esq.,

“ Dear Sir: Please cut out and have ready for spring shipment the following order:

“ 3,000 Horse R. R. ties, hewed 7 ft. long, 5 in. thick, and 5 in. face, @ .14 each, to be 2/3 chestnut and 1/3 oak.

“ 1,500 8 ft. chestnut posts @ 8 cts.

“ 2,000 10 ft. “ “ @ 10 cts.

“1,500 12 ft. “ “ @15 cts.

“ These to be of live timber, and to be from 4 to 6 in. at top end.

“400 cords clear oak wood @ $3.75.

“ 100 “ chestnut “ @ $2.50.

“ 3,000 ft. 8 ft. 4 X 4 chestnut.

“ 3,000 ft. 10 ft. “

“ 4,000 ft. 12 ft. “ “ @ 18.00

“ All of the above order to be delivered over the rail of a vessel.

“Yours truly,

“ John Selden & Son.”

The complaint, after mentioning the order and alleging that the plaintiff received and accepted it, says: “ (3) Defendants did not take said wood and timber as agreed, but neglected and refused to take or pay for the same, except as is hereinafter stated. (4) Defendants did not take any of said timber or wood until a long time after the same was ordered to be ready, and what they have taken has been taken in small quantities and at long intervals between July of 1894 and July of 1895. (5) The following wood mentioned in said order has never been taken or paid for by the defendants, to wit: 1,200 horse ties, 300 cords of oak wood, 100 cords of chestnut wood, 4,000 feet of 4 by 4 chestnut sticks. (6) Plaintiff has been to great trouble and expense in cutting and carting said wood, and a large amount of horse ties and oak wood, which had been placed on the dock at the request of the defendants, ready for shipment, was, in consequence of the neglect of the defendants to send a vessel for the same for several months thereafter, carried away by the high tides and wholly lost; and defendants have called for the shipment of the different loads of wood taken by them at inconvenient times, many months after they should have taken the same, and thereby caused great expense to the plaintiff.”

The answer of the defendants admits the sending the said order and its acceptance by the plaintiff; and then goes on to say: “ (3) As to paragraphs three and four the defendants answer and say that they did not refuse to take the wood and timber as agreed, and that they took all thereof that the plaintiff had ready for spring shipment in compliance with said order, and paid the plaintiff therefor; but that the plaintiff failed to have ready for spring shipment a large quantity of the wood and timber called for in said order. . . . (4) As to paragraph five the defendants answer and say that they did not take any of the wood therein mentioned, because the plaintiff did not have it ready for shipment as called for in said order. (5) Paragraph six is denied.”

These pleadings reduced the controversy of the parties substantially to this: What period of time was included within the expression “spring shipment”? The court found the issue for the defendants, and the plaintiff appeals.

The finding of facts is as follows: “ 1. Immediately after the acceptance of the order by the plaintiff, he began to cut the wood and timber therein mentioned, and before spring opened had a large quantity of the posts, ties, and wood piled upon the wharf at Guilford, so as to be ready for delivery upon boats when sent for the same. 2. On April 2d, 1894, the defendants sent the plaintiff two letters of that date.^* The posts and 4X4 chestnut, therein mentioned, were part of the lumber called for in the original order; the white oak was not. 3. The defendants sent the boat, as stated in said letters, but on the voyage to Guilford she came in collision with a tug boat, and was so.damaged that repairs were necessary, and she was taken into New London for such repairs, and could not and did not reach Guilford until May 11th, 1894. The defendants in the meantime sent no other boat to Guilford, though immediately notified of the collision and damage aforesaid. 4. About April 11th, 1894, the wharf at Guilford where the plaintiff had deposited his posts, ties, and lumber as aforesaid, was submerged by an unusually high tide, and a large quantity of said ties, posts and lumber was washed away and lost. The exact number of posts and ties which had been placed upon the wharf at this time did not appear upon the trial, nor did it appear just how many were lost; but a sufficient number of neither to fill the order had been placed on the wharf. From the estimates of witnesses I find that one thousand of each, approximately, were washed away and lost. 5. All the posts remaining upon the wharf on May 11th, 1894, were delivered to the defendants on that day by the plaintiff, and taken away on said boat. 6. In consequence of the loss of ties, posts and other lumber by said tide, and from other causes, the plaintiff at this time (May 11th) had ready for shipment no other of the articles called for by the original order, except about five hundred ties; and he did not during the spring of 1894 have ready for shipment the ties, posts and other articles called for therein, and did not tender or offer to deliver said articles to the defendants, or notify them that he was ready to do so. 7. Said five hundred ties and some other articles of lumber the defendants received from the plaintiff in June, 1894. For all lumber mentioned in the original order, which the plaintiff delivered to the defendants, they paid him in full the price mentioned therein. 8. Upon the trial the plaintiff claimed that by ‘spring shipment’ in the contract, was meant a period extending through the summer of 1894, and he offered evidence to prove that he had all the articles called for in the contract ready for shipment before the end of that period. To this evidence the defendants objected. The court sustained the objection, but stated to counsel that the evidence would be admitted if it should be shown that in this business the words had the meaning claimed, or that the defendants used them with that meaning. The plaintiff in reply to a question by his counsel said that he did not know that the words had the meaning claimed when used in the business, and could not say that the defendants had used them in that sense. The plaintiff duly excepted to the exclusion of the evidence as aforesaid. 9. The plaintiff claimed throughout the trial that he was entitled to show that after the summer of 1894 the defendants had by letter ordered from him lumber and wood of the same description as that referred to in the original order, for which they had paid him the price therein agreed to be paid for similar articles, and that he had filled these orders from the stock which he had on hand in the summer of 1894; and that he was entitled to prove and recover, as his damage from the defendants’ failure to come for the lumber when ready, the interest on the money which should have been paid when the lumber was ready for shipment, the expense and loss caused to him by the defendants taking the wood at inconvenient times, the value of the wood and ties which floated away, and the difference in value of the wood not taken, at the commencement of this action and in the spring of 1894. The court did not so rule, but overruled these claims, and upon objection excluded a great number of questions asked for the purpose of proving said facts and such elements of damage. To all these rulings the plaintiff’s counsel duly excepted. 10. The court found the issue for the defendants, and rendered judgment in their favor, as on file.”

The order fixed no time or times when the wood and timber was to be delivered to the defendants and paid for by them. It was therefore deliverable over the rail of such vessel as the defendant, on reasonable notice, should send to receive it. The title, therefore, remained, so long as the wood was on the dock, in the plaintiff. And so the loss of that which was carried away by the tide fell on him. This happened about the 11th day of April, 1894. There is no averment in the complaint that the defendants were remiss in sending a vessel at that time.

Every other item in respect to which the plaintiff claimed to recover damages, was for something which happened after July 1st, 1894. If the period for “spring shipment” named in the order, did not extend beyond the 1st day of July, 1894, the defendants could not be made liable for these items under the order. It was for this reason that the plaintiff claimed that by “ spring shipment ” in the order, was meant a period extending through the summer of 1894. This expression might be held to mean just what the calendar names as the spring months, viz, March, April and May; or there might be given to it a somewhat more popular meaning, as the period when vegetation begins to put forth, extending in this latitude from about the middle of March to about the middle of June. But there is no meaning which can be given to it which, as matter of law, could make it extend beyond the 1st of July.

It was undoubtedly competent for the plaintiff to show by evidence that this expression had in this business the meaning which he claimed for it; Smith v. Phipps, 65 Conn. 302; or that it was used by the parties in this contract with that meaning. In re Curtis-Castle Arbitration, 64 Conn. 501. The plaintiff offered no evidence to prove either of these conditions, and offered no evidence to show that it had such meaning.

The plaintiff did offer evidence which he claimed would prove that the parties—defendants and plaintiff—had by their conduct extended the period of “spring shipment” so as to include the whole season of 1894. This evidence was objected to and ruled out. We think this ruling was correct. It sought to' prove a contract different from the one alleged. The contract alleged was in writing; this was an attempt to prove a parol one. The contract alleged could not extend beyond the 1st of July, 1894. The one sought to be proved extended from July, 1894, to July, 1895. It appears then, that for all the Wood and timber which the plaintiff furnished to the defendants pursuant to the contract he has alleged, he has been paid.

There is no error.

In this opinion the other judges concurred; except Hameesley, J., who dissented.

* Cobalt, Conn., Apr. 2d, 1894.

Ralph Pabkeb, Esq. Dear Sir: Boat will be in Guilford Wednesday or Thursday to load posts. Can you get us 1,000 ft. of white oak, sawed through and through 12 ft. long, li and 2 in. thick. This must be butt cuts and nice lumber. Want it to go on this boat.

Tours truly, John H. Selden & Son.

P. S.—How much water is there at Guilford ?

* Cobalt, Conn., Apr. 2d, 1894.

Ralph Pabkeb, Esq. Dear Sir: Can you get the following 4X4 chestnut to go on this boat of good sound timber: 25 pieces 8ft.; 25 pieces 10 ft,; 25 pieces 12 ft.

Tours truly, John H. Selden & Son.

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Dissenting Opinion

Hamersley, J.

(dissenting). The complaint alleges that the defendants did not take and pay for certain articles which, hy the terms of the contract, they had agreed to take and pay for. This allegation is admitted by the answer, and the fact so admitted was as much a fact in the case as if it had been found upon issue joined. The defense is that the plaintiff first violated the contract by not having the goods mentioned in the order ready for spring shipment; and this involves a construction of the written contract. It will hardly be questioned that the contract required the defendants to send a vessel or vessels for the goods, within a reasonable time after the arrival of the time when they could be shipped in the spring, and to give the plaintiff reasonable notice of the time when such vessel would be at the dock in Guilford to receive delivery; and that the plaintiff did not violate the contract so long as he was ready to meet and did meet the obligation to so “ deliver over the rail of a vessel.”

It seems to me that the finding shows with sufficient clearness that the trial court did not so construe the contract, but did construe it as requiring the plaintiff to have all the goods on the dock during the months of March, April and May, and to notify the defendants that they were so ready for delivery, although the defendants neglected to give the plaintiff notice when they would send a vessel to receive the goods; that this error in law induced the finding, essential to the judgment, that the plaintiff had violated the contract, and induced the exclusion of sundry relevant evidence; and that this error is assigned in the appeal. There was, therefore, a mistrial, and a new trial should be granted.