117 Va. 840 | Va. | 1915
delivered the opinion of the court.
This action of assumpsit was brought by E. Sutherland & Co. to recover of H. C. Gibson $500, damages alleged to have been sustained by reason of the defendant’s breach of a written contract by which he sold the plaintiffs one hundred cattle. The defendant filed a plea of non assumpsit, and a special plea of set off in which it is alleged that
The contract out of which the controversy arises, dated June 6, 1913, and signed by the defendant, H. C. Gibson, is as follows: “I have this day sold E. Sutherland and Co. one hundred of the pick cattle out of 127 that are being grazed on the Copper Creek Duff farm, and being the cattle bought from R. C. Duff to be weighed from the tenth to fifteenth of October, 1913. At six and one-half cents per pound to be paid for when weighed.”
It is not disputed that the place for selecting, weighing and paying for the one hundred cattle was at the scales on the Duff farm in Russell county where the cattle were grazing. The defendant had bought the cattle from Duff, and on the morning of the 15th of October, about nine o’clock, the cattle were weighed and delivered by Duff to the defendant, Gibson, who waited until ten o'clock and then drove the cattle, together with eighty additional head that he mixed with them, a distance of eight miles to Castlewood where he had ordered cars for the purpose of shipping the cattle to Lancaster, Pennsylvania, to be there sold on that market. When the defendant reached Castlewood between one and two o’clock of the 15th day of October, he there met E. Sutherland and F. M. Moss, constituting the plaintiff firm of E. Sutherland & Co., who were on their way to the Duff farm to select, weigh and pay for the cattle in accordance with the contract When
Over the objection of the plaintiffs the trial court admitted evidence on behalf of the defendant tending to establish the custom relied on, and instructed the jury that if they believed from the evidence that such custom was established then it was incumbent upon the plaintiffs to be present at the Duff farm ready to weigh and pay for the cattle on the 15th of October at the weighing hours of that day prescribed by the custom, and that if they failed to be present during such hours it would constitute a breach of their contract and they must find for the defendant.
We are of opinion that, under the circumstances of this case, it was error to admit the evidence mentioned and to give instructions 3, 6 and 7 based upon such evidence, and to refuse instructions 1 and 2 asked for by the plaintiffs. It is well settled that where a particular day or
The contract in the case before us is clear, explicit and easily understood. It expressly provides that the limit of time for weighing and paying for the cattle was to be the 15th day of October, without an intimation that it was to be finally consummated between daylight and nine o’clock of that day. In addition the evidence tends to show that the parties contemplated that the contract would be consummated in accordance with its express terms and not in pursuance of any existing custom. Only two weeks before, the- defendant told the plaintiffs that the cattle must be weighed on the 15th of October, without a hint that he expected it to be done between daylight and nine o’clock of that day.
It is true there are cases where parol evidence is admissible to show the custom of the locality where the contract was made, or the usage of trade with reference to which, in the absence of any special agreement, the parties are deemed to have contracted. This class of cases is well illustrated by that of Richlands, &c., Co. v. Hiltebeitel, 92 Va. 91, 22 S. E. 806, where the memorandum of the agreement merely set forth the various prices to be paid per thousand for certain brick work and did not specify any mode by which the quantity of brick laid was to be ascertained and settled for. This court held that under such circumstances proof of custom or the usage of the trade was admissible to show that the method of ascertaining the number of brick laid was by measuring the work done and allowing so many bricks to the cubic foot. See also Hansbrough v. Neal, 94 Va. 722, 27 S. E. 593. Where, however,
It is unnecessary to consider in detail the objections taken to instructions 1, 2, 4 and 5, given for the defendant. In the view we have taken of the case those instructions were irrelevant and should have been refused.
The judgment complained of must be reversed, the verdict of the jury set aside and a new trial had not in conflict with the views herein expressed.
Reversed.