63 Ind. App. 455 | Ind. Ct. App. | 1917
This action was brought by appellee against appellants, Will H. Robbins and Charles H. Johnston, doing business under the firm name of W. H. Robbins & Co., to recover the purchase price of 1,250 pounds of coffee alleged to have been sold to appellants by appellee. The demurrer to the amended second paragraph' of complaint for insufficiency of facts was overruled. Appellants filed an amended second paragraph and an additional third paragraph of answer to the amended second paragraph of complaint. Appellee demurred to each of such paragraphs of answer for insufficiency of facts alleged to constitute a defense to its cause of action and each of such demurrers was sustained. Thereupon appellee withdrew its first paragraph of complaint and appellants withdrew their first paragraph of answer. Appellants failed and refused to plead further and elected to stand on their said answers and the rulings of the court on the demurrers thereto, and the court rendered judgment for appellee against appellants in the sum of $207.50.
From this judgment appellants appealed and have assigned as error the overruling of their demurrer to the amended second paragraph of complaint, the sustaining of appellee’s separate demurrer to the second amended and the additional third paragraph of appellants’ answer.
Omitting formal and unquestioned allegations, the complaint is, in substance, as follows: Appellee was a whole
Letter:
“Will IT. Robbins Charles TI. Johnston
“W. TL Robbins & Company
Wholesale Grocers and
Commission Merchants,
Clover and Timothy Seed.
Greensburg, Indiana, 3-8, 1913.
“Brazil Syndicate,.New York, Gentlemen:
Quote us 25-50’s Santos 4’s same as last.
Yours truly, W. H. Robbins & Co.-
Telegram:
New York, Mar. 10, 1913.
“W. TI. Robbins & Co.,
Greensburg, Indiana,
Santos fours sixteen and half subject to return confirmation.
Brazil Syndicate R. & B. Co., Inc.”
Telegram:
“Greensburg, Indiana, Mar. 10, 1913. “Brazil Syndicate R. & B. Co. New York.
Telegram received. Ship twenty-five fifties Santos fours at quotation. W. TL Robbins & Co.”
On March 19, 1913, in response to said letter and telegrams, appellee shipped to appellants by the usual and
The memorandum accompanying the demurrer to the complaint is, in substance, as follows: The complaint does not aver that the goods sold were delivered to the purchasers; the averments do not show an unconditional purchase of the goods f.o.b. New York City; the averments do not show that the coffee shipped was the “same as last,” nor do they explain the meaning' of such phrase; the complaint shows that the goods were never delivered to the purchaser but were delivered to the Erie Railroad Company; the "averments do not show an unconditional sale of the coffee without the right of inspection at Greensburg, Indiana, and confirmation or rejection and compliancy with conditions of payment; the averments do not show that appellants received notice of the shipment or that the seller performed all the conditions of the sale to be performed by it. The theory of the complaint is that the letter and telegrams constitute a contract of sale; that appellants accepted the proposition and terms of appellee for the sale of twenty-five
The amended second paragraph of answer admits the execution of the letter and telegrams set out in the complaint, hut it avers that the phrase “same as last” in appellants’ letter of March 8, 1914, had reference to a former shipment of coffee by appellee to appellants and that both parties then and there understood the same and that it had a special meaning and referred to the condition and terms of delivery and payment for said former shipment and both parties knew and understood that by the quotation asked for in said letter the coffee was to be
The gist of the memoranda accompanying the demurrers to the> special answers is that the answers do not show that the contract of sale is indefinite, uncertain or ambiguous; that the meaning of the phrase “same as last” is not uncertain, indefinite, or ambiguous, when read in connection with the whole contract set out in the complaint.
In Olds Wagon Works v. Coombs, supra, (p. 65) Judge Mitchell used language appropriate to the case at bar, viz.: “In interpreting a contract the language employed therein is the exclusive medium through which to ascertain its meaning; but in case the terms employed are ambiguous,' or susceptible of more than one meaning, the situation of the parties and the circumstances under which the contract was made may become a proper subject of inquiry in order to
In Leiter v. Emmons, supra, (p. 25) this court, by Robinson, C. J., said: “As it was a contract made with reference to a particular business, it is presumed that it was made with reference to the ordinary course of such business. In such case it would be proper to consider the general and known course of business of appellants. While it is true that usage cannot control an express contract, yet where a contract is ambiguous, the presumption is that it was made with reference to the known usage or general course of the particular business. In such case the question becomes one of fact to be determined as any other question of fact. ’ ’
If, as alleged in the answer, appellee undertook to deliver
The judgment is reversed, with instructions to overrule each of the demurrers to the special answers, and for further proceedings not inconsistent with this opinion.
Note.—Reported in 114 N. E. 707. Sales, delivery of goods to carrier as delivery to purchasers, 20 Ann. Cas. 1027; Ann. Cas. 1916A 1046; 35 Cyc 193. See under (2) 35 Cyc 289; (3) 35 Cyc 195; (4) 35 Cyc 97; (5) 9 Cyc 577.