13 N.Y.S. 529 | N.Y. Sup. Ct. | 1891
Lead Opinion
This action was brought to recover $1,431.90, for breach of-' the following contract: “Hew York, April 27th, 1887.
“Hew York Land Blast Works: You are hereby authorized to manufacture for us fifteen hundred (1,500) embossed glass signs; size, seven by nine, framed in like sample, and worded as follows, to-wit: [Like sample.] Eight-hundred to be delivered as soon as possible, balance within eighteen months,for which we agree to pay two thousand dollars ($2,000.00) for 1,500 signs, [Signed] “Horace R. Kelly & Co.”
The defenses interposed were that the signs delivered were not like sample, and were not delivered within the time as called for by the contract. As to the first defense there was conflicting evidence as to whether or not the signs delivered were like the sample; and, while some fault might be found to the admission of evidence under objection of one of plaintiff’s witnesses as to the difficulty in obtaining in the market the leather back similar to the sample, the injury thereby done would not be sufficient to call for the reversal of the judgment based upon a verdict which, upon all the facts relating to this issue, the jury found adverse to defendant. To entitle plaintiff to recover it was incumbent to show that the goods were delivered “as soon as possible,” so as to be within the terms of the contract. As the exceptions taken to the judge’s charge and to the exclusion and admission of testimony are to be determined by the consideration of what was meant by this expression “as soon as possible, ” it is necessary at the outset to have this phrase defined. In Attwood v. Emery, 1 C. B. (N. S.) 113, it was said: “The expression is one that is susceptible of several different significations.” In that ease Cress well, J., says: “The case has been argued upon the assumption that the plaintiff’s engagement was to execute the work with more speed than would have been required had the words been ‘ within a reasonable time.’ * * * If defendant had intended to have the hoops within the limit he should have taken care to express himself accordingly. I think this contract means no more than a
Taking the judge’s charge as a whole, I do not think any fault can be found therewith; for, though he defines the words “as soon as possible” as synonymous with “a reasonable time,” he qualifies the latter expression in such a way to bring it within the rule, so that the jury were correctly instructed with regard to plaintiff's duty in reference to delivering the signs with all possible expedition. In other parts of the case, however, we do not find the same care observed, and, notwithstanding the objection made by the defendant, the court and the plaintiff treated the expression “as soon as possible” as synonymous .with “a reasonable time.” Thus the plaintiff asked the witness: “ What, in your opinion, would be a reasonable time for the making and delivery and framing of 800 embossed signs such as I show you?” This question is faulty in two respects: First, as calling for an opinion upon a question which the court had ruled was a question of law; and, secondly, as assuming that “a reasonable time” and “as soon as possible” were one and the same -expression. The same fault is to be found with the questions asked by plaintiff as they appear upon page 34 of the printed record. »These questions ■directly pointed to one of the main issues about which the parties were contending, and, while it would have been proper to have allowed witnesses who were competent by reason of their experience to state how long it would have d;aken to manufacture the signs, this would not, as the question asked and .answered did, intrench upon the province of the jury. Guttwillig v. Zuberbier, 41 Hun, 365. The latter, under the instructions of the court as to the •construction to be given to the contract, were to determine what these witnesses were allowed to conclude, viz., whether the delivery was made in time. 'The defendant’s grievance in respect to this testimony is accentuated when •we refer to a similar question asked by the defendant, which in all respects was like those admitted on plaintiff’s behalf, except that instead of using the •phrase “a reasonable time” the one used was that of the contract, namely, “as soon as possible.” This question was as follows: “Your contract is800 .signs, to be delivered as soon as possible. The date is April 27th. State •what you consider ‘as soon as possible.’” This question was objected to as being a question of law, and the objection was sustained, and defendant excepted. It will thus be seen that, while we agree with the excluding of the last question, it seems but proper that, where the same questions were asked .and answered in favor of the plaintiff, a similar rule at least should have been applied in favor of the defendant, and the testimony so objected to should have been excluded. These errors cannot be regarded as immaterial, because they went to the whole gist of the action; and upon a reading of the whole • case it is evident that the confusion introduced relative to plaintiff’s duty in respect to time of delivery must necessarily have prej udiced the defendant. In Brady v. Cassidy, 104 N. Y. 147, 10 N. E. Rep. 131, it was held that “ when •the terms and language of the contract are ascertained in the absence of technical phrases, or of terms the meaning of which is obscure, or of latent ambiguities, rendering the subject-matter of the contract uncertain and doubt-ful, the office of interpreting its meaning belongs to the court.” See, also, Dwight v. Insurance Co., 103 N. Y. 353, 8 N. E. Rep. 654. The language used in this contract was neither ambiguous nor technical, and the construction thereof was for the court, and not for the witnesses. We are unable to reconcile the rulings made for and against the plaintiff. “An unequal application of the rules of evidence offered by one party, and excluding evidence • of the same character on the same point offered by the other, is good ground of reversal.” Holten v. Holten, 5 Wkly. Dig. 14. It is unnecessary, therefore, to consider the other questions raised upon this appeal, as the judgment must, for the reasons stated, be reversed, and a new trial had, with costs to defend■ant to abide the event.
Concurrence Opinion
(concurring.) I concur in the result. It does not appear that adjudications can alter the import of plain words in a contract. It seems to me that the fact that as without any words of expedition in the contract the plaintiff would have been bound to furnish the goods within a reasonable time, the addition of such words shows conclusively that the parties had in mind something in addition to xvhat the law implied. “Within a reasonable time” seems to mean within such time as can be done following the ordinary course of business; “as soon as possible” seems to mean as soon as can be done, using the greatest diligence.
Daniels, J. i concur in the result.
