160 Ind. 133 | Ind. | 1903
This was an action brought by the appellees, doing business as partners, against the appellant, as surviving partner, to recover judgment for goods sold and delivered by appellees to appellant’s firm. A trial of said cause resulted in a verdict and judgment for appellees.
The errors assigned and not waived call in question the sufficiency of the fourth paragraph of complaint, the action of the court in overruling appellant’s motion to strike out parts of said fourth paragraph of complaint, in overruling the appellant’s motion for judgment in his favor upon the answers to the interrogatories, notwithstanding the general verdict, and in overruling appellant’s motion for a new trial.
The fourth paragraph of complaint alleges that the appellant is the sole, surviving partner of the firm of Louis Rastetter & Son, and that he has in his hands sufficient assets to pay all partnership indebtedness, including the claim of appellees; that for many years prior to September 25, 1895, appellees were engaged in the business of sawing elm strips, and the said firm of Louis Rastetter & Son, long prior to the aforesaid date, was engaged in the business of buying said strips. It is further alleged that, “prior to said date, a custom had grown up among those who sawed said strips and those who purchased the same that the dimensions of said strips were to be taken at the
Appellant unsuccessfully moved to strike from this paragraph so much thereof as pertained to the custom alleged
Common terms, however, may, in a particular business or trade, acquire a peculiar and different signification from that generally given to them. It is perfectly well settled that when parties enter into a contract with reference to a particular business or trade they are presumed to have contracted with reference to any usages of that business or trade, and their contracts are to be interpreted consistently with such usage. Peculiar expressions are to be given that meaning which they have acquired in such business by common usage, unless, by the express terms of the contract, the usage is excluded, or is inconsistent with the contract. Van Camp Packing Co. v. Hartman, 126 Ind. 177, 179; Lyon v. Lenon, 106 Ind. 567, 572; Morningstar v. Cunningham, 110 Ind. 328, 334, 59 Am. Rep. 211; Prather v. Ross, 17 Ind. 495; Hibler v. McCartney, 31 Ala. 501, 506; Lowe v. Lehman, 15 Ohio St. 179; Dwyer v. City of Brenham, 70 Tex. 30, 7 S. W. 598; Gunther v. Atwell, 19 Md. 157; First Nat. Bank v. Fiske, 133 Pa. St. 241, 242, 19 Atl. 554, 7 L. R. A. 209, 19 Am. St. 635; 27 Am. & Eng. Ency. Law, 809-815; Clarke’s Browne on Usages and Customs, §§41, 42; Lawson, Usages and Customs, §§17, 24; Beach, Contracts, §§581, 747, 758, 1746. It appears from the allegations of said fourth paragraph that said strips were sawed in the green of the dimensions named in said order, and that if they had been delivered at that time they would have been of the proper
Contracts of the kind here involved may, on their face, seem clear, but in the particular instance, in connection with the business to which they\ pertain, be ambiguous. Thus, in Hibler v. McCartney, supra, it was permitted to be explained that the expression “dangers of the river” used in a hill of lading, really by the usage of the business, included also dangers by fire. In Soutier v. Kellerman, 18 Mo. 509, the contract called for the sale of shingles at a certain price per thousand, a perfectly clear expression ordinarily and abstractly considered; yet it was held competent to show that by the usage of the business two bunches of shingles of certain dimensions, regardless of the number of shingles actually contained in the bunches, constituted a thousand, and that a delivery upon such a basis was within the terms of the contract. In the English case of Smith v. Wilson, 3 Barn. & Ad. 728, the contract of sale called for 1,000 rabbits, yet the purchaser was permitted to insist upon a delivery of 1,200 rabbits, in virtue of a usage of that trade by which 1,000 rabbits had come to mean 100 dozen, or 1,200 rabbits. So, in a contract for the furnishing and laying of bricks at so much per thousand, it was permitted to be shown that the expression “per thousand” in that business really meant a portion of the completed building, of certain dimensions, without reference to the actual number of bricks therein contained. Lowe v. Lehman, 15 Ohio St. 179. See, also, Humphreysville Copper Co. v. Vermont Copper, etc., Co., 33 Vt. 92; Dwyer v. City of Brenham, 70 Tex. 30, 7 S. W. 598; Wilcox v. Wood, 9
In Barton v. McKelway, 22 N. J. L. 165, a contract for the delivery of certain trees from a nursery provided that the trees were to be not less than one foot high. The dispute was as to the measurement, and evidence was held competent of a usage in the trade to measure only to the top of the ripe, hard- wood, and not to the top of the tree. See, also, Hinton v. Locke, 5 Hill (N. Y.) 437; Wilcox v. Wood, supra; Ford v. Tirrell, 9 Gray 401, 69 Am. Dec. 297; Morningstar v. Cunningham, 110 Ind. 328, 334, 335, 59 Am. Rep. 211.
It is objected that said fourth paragraph does not show that the usage had existed for any considerable length of time. It is not necessary that a usage should have existed from time immemorial, or that it should have existed for any considerable length of time; it is sufficient if it were known to the parties - at the time they entered into the contract. Lawson, Usages and Customs,, §17; Clark, Contracts, 583, 584; Morningstar v. Cunningham, supra; Chateaugay, etc., Iron Co. v. Blake, 144 U. S. 476, 486, 12 Sup. Ct. 731, 36 L. Ed. 510; Patterson v. Crowther, 70 Md. 124, 130, 16 Atl. 531; Thompson v. Hamilton, 12 Pick. 425, 23 Am. Dec. 619. It is directly alleged in said fourth paragraph, “That this custom was well known to both the plaintiffs and said Louis Rastetter & Son,” and that the dealings between the parties -were had with reference to this custom. It is evident, therefore, that the court did not err in overruling the motion to strike out. Eor
In support of his sixth assignment of error, that the court erred in overruling appellant’s motion for judgment upon the answers to the interrogatories, notwithstanding the general verdict, it is urged by counsel for appellant that said fourth paragraph, and, indeed, the entire complaint, proceeds upon the theory of an action for goods sold and delivered, while the answers of the jury to the interrogatories submitted by appellant clearly show that appellant’s firm never, at any time, accepted the goods in question, that the action for goods sold and delivered can be maintained only by showing an acceptance, and that,- upon the familiar principle that the plaintiff must recover upon the theory of his complaint, or not at all, the appellant was entitled to judgment |upon the answers to the interrogatories, notwithstanding the general verdict. While there is not a unanimity of judicial opinion upon the question of acceptance of the goods sold in an action such as this, we think the rule established by the better reason is that, in an action for goods sold and delivered, the seller is entitled to recover the contract price if he has delivered the property to the purchaser, or done such acts as vested the title in the purchaser, or would have vested the title in him if he had accepted it. Dwiggins v. Clark, 94 Ind. 49, 48 Am. Rep. 140; Pittsburgh, etc., R. Co. v. Heck, 50 Ind. 303, 19 Am. Rep. 713; Neal v. Shewalter, 5 Ind. App. 147, 153; Gardner v. Caylor, 24 Ind. App. 521, 526, 527; Ballentine v. Robinson, 46 Pa. St. 177; Adams, Cases on Sales, 25; Bement v. Smith, 15 Wend. 493; Nichols v. Morse, 100 Mass. 523; Rodman v. Guilford, 112 Mass. 405; McLean v. Richardson, 127 Mass. 339; Myer v. Tighe, 151 Mass. 354, 24 N. E. 49; Smith v. Edwards, 156 Mass. 221, 30 N. E. 1017; White v. Solomon, 164 Mass. 516, 42 N. E. 104, 30 L. R. A. 537; New England, etc., Co. v. Standard Worsted Co., 165 Mass. 328,
It is also contended that the usage must have existed throughout the State, while the answers to the interrogatories show that the alleged usage prevailed in northern Indiana only. It is perfectly well settled that commercial usages need not be coextensive with the State. Harper v. Pound, 10 Ind. 32, 36; Grant v. Lexington, etc., Ins. Co., 5 Ind. 23, 61 Am. Dec. 74; Spears v. Ward, 48 Ind. 541; 545; Cox v. O’Riley, 4 Ind. 368, 373, 58 Am. Dec. 633; Morningstar v. Cunningham, 110 Ind. 328, 334, 59 Am. Rep. 211; Fulton Ins. Co. v. Milner, etc., Co., 23 Ala. 420, 427, 428. Even the usage of a particular person or firm may enter into and become a part of a contract with such person or firm, if it be known to the other contracting party. Morningstar v. Cunningham, supra; Hursh v. North, 40 Pa. St. 241, 243; Fulton Ins. Co. v. Milner, etc., Co., supra; Lawson, Usages and Customs, §17; Clark, Contracts, 583, 584.
It is next insisted by appellant that there was no evidence proving that the usage alleged was known to appellant’s firm. Several witnesses by their testimony supported the allegations of the fourth paragraph of complaint in regard to the usage among sawmill men and those dealing with them. It
Appellant complains of the reftisal of the court to give the instructions requested hy him. Appellant’s exception to -this action of the court was joint as to all of the instructions so refused, and, under a well settled rule, is not available _ if any one of said instructions was correctly refused. Ewbank’s Manual, §28. As some of said instructions were correctly refused, said exception is not available.
Other objections are urged under the motion for a new trial; but, so far as material, they are founded upon propositions already considered and determined against appellant. Judgment affirmed.