58 Wash. 223 | Wash. | 1910
The appellant, the plaintiff below, commenced this action against the respondent to recover damages for failure to deliver four carloads of shingles and mixed lumber and shingles. The case was tried to a jury, which returned a verdict for the respondent. From a judgment of dismissal entered upon the verdict, the plaintiff has appealed.
The complaint states four causes of action based upon four separate orders. In the third cause of action, which is illustrative of the others except as hereafter noted, it is alleged, in substance, that the appellant and the respondent entered into a contract of purchase and sale as evidenced by an order and the reply thereto, which, omitting immaterial parts, is as follows:
“Seattle, Wash., Jan. IT, 190T.
“E. J. McNeeley & Co., Tacoma, Wash.
“Order No. T29X
(For conditions upon which this order is accepted see other side of this sheet.)
“Cars to be consigned from R. J. Menz Lumber Co.
(Always show us as Shippers.)
Ship to R. J. Menz Lumber Co. at Bill of Minnesota Trft., Minn,
lading to Route N. P.
read Prices F. O. B. Mill.
“Terms 90 per cent, advance. Settlement on receipt of consignee’s Report and Expense Bill (less usual 2 per cent, discount.) All underweights to mill 50 cent rate. Price Guaranteed.
^Quantity: One (1) Car.
*225 “Please acknowledge acceptance of this order on enclosed postal card, by return mail. Very truly yours,
“R. J. Menz Lumber Co.
“Per E. B. Day.”
“Tacoma, Wash., Jan. 18, 1907.
“R. J. Menz Lumber Co., Seattle, Wash.
“Dear Sirs: Your order No. 729X has been received. We accept and enter same for shipment in accordance with the terms thereon. We anticipate making shipment on or about ............... At prices annexed, we would like to move the following stock:...................
“Yours very truly, “E. J. McNeeley & Company, “Per .................
The order in the first cause of action is for fifty thousand described shingles, with directions to “Fill car 6-2 Ex. *A. *R. C. Shingles.” The order in the second cause of action is for seventy-five thousand designated shingles, with directions: “Balance 6-2 extra. ®A. ®R. C. Shgls.” And “Small car preferred.” Shipping directions in the fourth cause of action were: “Ship to order of Bonds Foster Lumber Company at Aurora, Nebraska. How ship: Billings care B. & M. R. When: Soon as possible. Terms: Regular f. o. b., Aurora, Nebraska. Sixty cent rate.” This cause of action was assigned to the appellant. Each of the acceptances, except on the third cause of action, was upon the respondent’s stationery which had printed thereon, above the typewritten acceptance, the name of the respondent, illustration of shingles, capacity of its mills, specialties, etc., including the words: “Quotation subject to change without notice. Contracts made at home office only and contingent upon exigencies of transportation and accidents beyond our control.” Similar typewritten matter was upon the letter heads of the appellant.
The respondent interposed three affirmative defenses to each cause of action except the third, which in substance are,
It now asserts, however, that it was the duty of the purchaser to furnish the cars for loading, and that failing to do so there can be no recovery. Notwithstanding the fact that this view is inconsistent with the claim that the acceptance of the order was subject to the exigencies of transportation, we will consider it, as it may arise upon a retrial of the cause. Where the contract is otherwise silent as to who shall furnish the cars, the term “f. o. b. cars,” as applied to ordinary commercial commodities, means that the goods shall be free on board the cars—that is, loaded without expense toglhe purchaser, and that the seller shall procure and load mem. Hurst v. Altamont Mfg. Co., 73 Kan. 422, 85 Pac. 551, 117 Am. St. 525, 6 L. R. A. (N. S.) 928; Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820, 106 Am. St. 989, 67 L. R. A. 756; John O’Brien Lumber Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337; Elliott v. Howison, 146 Ala. 568, 40 South. 1018.
In the Hurst case, at page 429, it is said:
“It is our understanding that the phrase or formula ‘f. o. b. cars’ has by long usage and custom acquired throughout the business circles of this country a definite and specific meaning, generally understood by all business people. When such phrase or formula is used in a business contract, between a buyer and seller of ordinary commercial commodities, where the use of a common carrier is necessary, the parties intend thereby that the seller will, at his own expense, do all that may be necessary to accomplish the loading and consignment of the goods to the buyer, including the placing of cars upon which to load the commodities sold; and when nothing appears to modify or limit this meaning the courts should enforce the contract so as to effectuate this intent. This rule is reasonable; it harmonizes with existing*228 business conditions, and is the universal practice among business people. It is conceded that by this phrase the seller is bound to deliver the goods to the buyer by placing them on board the cars. How can he do this unless he secures the cars? Why say that this duty belongs to the buyer? The language of the contract is silent upon this question. By the letter of the agreement it may be said that neither party has.agreed to perform this duty, but it may not be said that there was no understanding upon this subject. Without such an understanding the contract would be incomplete and unenforceable. What the parties intended upon this subject can only be ascertained by interpretation, and to do this the situation of the parties when the contract was made, the subject-matter thereof, and all the attendant circumstances and conditions, must be considered.”
In the Vogt case, discussing the meaning of the phrase at page 499, the court said:
“Whether such meaning includes, under the circumstances of this case, the duty of the seller to procure the cars in place for his use in loading the merchandise, and evidence is not permissible to show the existence of a custom which the parties contract with reference thereto, is not altogether plain, but we are constrained to hold that it does.”
In the Elliott case, at page 591, it is said:
“In the case at bar the seller undertook to accomplish the delivery of the things sold free on board the cars. We think it comports with reason to hold that by necessary implication' he agreed to supply all means to accomplish such result—the cars upon which the shipments of piles were tó be made.”
The authorities cited by the respondent, holding that the term implies that the buyer shall procure the cars, are discussed, distinguished, and disapproved in the case of Hurst v. Altamont Mfg. Co., supra. It must, however, be conceded that there is a conflict of authority on this question, but we think, not only that the rule we have stated is a correct interpretation of the phrase, but that universal usage in this state has given it the meaning which the language imports. The language, however, in this case, “We accept and enter
The court instructed the jury, in substance, that they’ should determine from all the evid°ence what the contract was;; that in so doing is was proper- for them to consider whether the printed matter on the letter heads forms a part of the; contract; that ordinarily such matter, if not repugnant to the contents of the letter itself, may be considered as a part of the contract if the parties make their contract with reference thereto and knowledge thereof. This instruction was erroneous. The order and the acceptance were in writing and , constituted the contract, and it was the duty of the court to construe them, if not ambiguous; and if ambiguous, to receive parol testimony to explain the ambiguities. The printed matter on the letter heads was not referred to in either the order or the acceptance, and is not a part of the contract. 2 Page, Contracts, § 600; Sturm v. Boker, 150 U. S. 312; Summers v. Hibbard, Spencer, Bartlett & Co., 153 Ill. 102, 38 N. E. 899, 46 Am. St. 872. In the Sturm case the court said that a printed bill head could not control, modify, or alter the terms of the contract, and that “the contract being clearly expressed in writing, the printed bill-head of the invoice can, upon no well-settled rule, control, modify, or alter it.” In the Summers case, at pages 108, 109, the court, in considering the precise question, said:
“The mere fact that appellants wrote their acceptance on a blank form for letters, at the top of which were printed the words, ‘All sales subject to strikes and accidents,’ no more made those words a part of the contract than they made the words there printed, ‘Summers Bros. & Co., Manufacturers of Box-annealed Common and Refined Sheet-Iron,’ a part of the contract. The offer was absolute. ■ The written acceptance, which they themselves wrote was just as absolute. The printed words were not in the body of the letter or referred to therein. The fact that they were printed at the head of their letter-heads would not have the effect of preventing appellants from entering into an unconditional contract of sale.”
The court instructed the jury that, in determining whether there had been a breach of the contract, they should consider whether there was a general custom which formed a part of the contract; whether it was the custom of the respondent to accept such orders only upon the conditions expressed in its letter heads, which was brought to the knowledge of the appellant so that it made the contract in view of the provision and adopted it as a part of the contract; that they should determine when the contract expired, whether in a reasonable time if the parties were unable to fill it so that it was cancelled and no longer obligatory, and if so, there could be no recovery. This instruction the appellant contends was erroneous. We think it was clearly so. Parol testimony of usage or custom, either general in the community or special between the people engaged in a particular trade or business, is not admissible to vary, modify, or control the terms of the contract. Williams v. Ninemire, 23 Wash.
In the Covington case, at page 686, it is said:
“But in all cases of this sort the rule for admitting the evidence of usage or custom must be taken with this qualification ; that the evidence be not repugnant to, or inconsistent with, the contract; for otherwise it would not go to interpret and explain, but to contradict, that which is written.”
In the Sheffield Furnace Co. case the contract provided for a sale of coke at a price “f. o. b. cars, Sheffield, Alabama.” Sheffield was the point of destination of the coke. The court held that evidence of a general custom in the coke trade was inadmissible for the purpose of showing that the purchaser should advance the freight. In Barnard v. Kellogg it was held that usage cannot be allowed to subvert the settled rules of law or defeat the essential terms of the contract; that its office is to explain words or phrases of doubtful meaning, or which may be understood in different senses according to the subject-matter to which they are applicable. In the Partridge case the plaintiff, having been discharged from the employment of the defendant, sought to recover for services rendered as agent, and asserted a right to a commission on the annual premiums paid, or to be paid, on policies issued through his agency. To establish this he undertook to prove a usage between insurance companies and their agents. He introduced in evidence a letter of the
“It appears to us, as it did to the circuit court, that the testimony offered would have established a new and distinct term to the contract. It would have established a contract very different from the written one introduced by plaintiff. The language of the letter was neither ambiguous nor technical. It required and needed no expert, no usage to discover its meaning. ■ To have admitted the usage offered in evidence in this case would have been to make a contract for the parties differing materially from the written one under which they had both acted for some time.”
And that:
“No such extension of the doctrine is consistent either with authority or with the principles which govern the law of contracts.”
The respondent has cited, in support of this construction, Bliven v. New England Screw Co., 23 How. 420; Robinson v. United States, 13 Wall. 363, and Lillard v. Kentucky Distilleries & Warehouse Co., 134 Fed. 168. These cases recognize the rule which we have stated, but hold that it is inapplicable to the particular facts before the court. The Bliven case, in its application of this principle of law to the facts before it., tends to support the instruction. But as we read the Robinson and the Lillard cases, the facts are so different that they are not pertinent to the issue. In the Robinson case a contractor had agreed to deliver a million bushels of barley to the government between certain dates, but the contract did not specify the manner of delivery. After making certain deliveries in the sack, a large quantity was tendered loose in wagons. The tender being refused, it was held in a suit by the government that, the contract being silent as to the mode of delivery and there being two modes
A contract definite in its terms cannot be made subject to a custom of trade that, if it cannot be performed in a reasonable time, it need not be performed at all. There is a principle of law that, in contracts where the performance depends on the continued existence of a specified person, animal, or thing, a condition is implied that the impossibility of performance arising from the death of the person or animal or the destruction of the thing, excuses the performance. This principle has no application to this case. The acceptance required a delivery within a reasonable time. In determining what was a reasonable time, the circumstances of the difficulty or impossibility of getting cars up to April 2, 1907, the date when the car embargo was removed, should be considered. One of the defenses is that there was a great shortage of cars when the contract was made, and that the appellant had knowledge of that fact. If this is true, it would be a circumstance in determining what a reasonable time would be. The fact that the contract called for ship
The respondent contends that, if it could not ship within a reasonable time owing to lack of cars, it was excused from shipping at all, and cites: Stewart v. Stone, 127 N. Y. 500, 28 N. E. 595, 14 L. R. A. 215, 220, and Raisin Fertilizer Co. v. Barrow, 97 Ala. 694, 12 South. 388. In the Stewart case a manufacturer of butter and cheese agreed with certain individuals to convert their milk into cheese and butter, sell the products, and divide the proceeds according to the contract. The factory was destroyed by fire and a quantity of milk, butter and cheese was lost. The court recognized the exception that we have noticed, and held that the destruction of the factory, if it occurred without negligence on the part of the owner, relieved it of liability for damages. In the Raisin Fertilizer Co. case the engagement to deliver was conditional upon “water transportation” permitting.
Where the order does not specify the size of the car, the damages are assessable on the basis of an average sized car used in shipping such commodities. Floyd v. Mann, 146
The instructions requested by the appellant state the law of the case applicable to the issue, and should have been given as an entirety. The length of this opinion forbids a statement of their substance, but it is sufficient to say that they were in harmony with the view we have taken of the case.
The judgment will be reversed, with directions to proceed in conformity with this opinion.