Opinion
January Term, 1899.
Rudolf Dulon, for the appellants.
Robert B. Honeyman, for the respondents.
The fair inference to be drawn from the testimony, whether offered by the plaintiffs or the defendants, is that it was the common practice to purchase cement by the barrel and not by weight, and that when so purchased a barrel was expected to weigh about 180 kilos, and that a good delivery would be of barrels which weighed within 10 pounds or 12 pounds of 180 kilos. That is to say, there being 2.20 and a fraction pounds in a kilo, 180 kilos, therefore, equalling 396 pounds, where the contract was for the purchase of barrels of cement it was expected by both parties that they would contain about that number of pounds, but it was not regarded as a fatal variance if they fell no more than 2 pounds in weight a barrel below that figure. The reason given for the willingness to accept barrels thus below the standard weight as a good delivery, arose from the fact that even if the barrels were up to weight when packed and shipped from Belgium, they might, through a process of sifting while on the voyage, lose in weight.
Were the present contract merely for the sale of barrels of cement, therefore there would be a foundation for the introduction of evidence as to custom or usage on the question of how many pounds of cement the barrels should contain in order to be a good delivery under such a contract. We think, however, that it will not be disputed that the parties to a contract having reference to Belgian cement have the right to contract as to the exact amount of cement in weight that should be delivered. In other words, it was entirely competent for the parties to agree, one to sell and the other to purchase a certain number of barrels of cement, and to stipulate in definite terms as to the precise weight of the barrels. When parties so contract, it has been repeatedly held that "usage will never be admitted to vary or contradict an express contract" ( Wigglesworth v. Dallison, 1 Smith L.C. [8th ed.] pt. 2, p. 960, note), or, as expressed in Silberman v. Clark ( 96 N.Y. 522), where the contract is unambiguous, the meaning of the language used cannot be changed or varied by parol evidence.
It will, therefore, be seen that the question presented is as to whether the parties here have contracted in specific terms as to the quantity of cement that should be contained in the barrels. If we take the language of the contract, we find that this was more than a sale of 8,000 barrels of cement, because there was an express provision that the barrels were "to weigh 180 kilos," and the only thing uncertain or ambiguous about the-words arises solely from the use of the foreign measure of weight. In the present case, however, this presents no great difficulty, for there is no dispute about the meaning of a kilo, it being conceded by both parties exactly what it represents in American pounds. There is, furthermore, no question but that the barrels in the three shipments tendered did not come up to the contract as to weight, and it only remains to determine whether it was competent to excuse the failure in complying with the terms of the contract by evidence of usage or custom of the trade, that barrels of less weight were a good delivery.
We think that such evidence was not competent. The principle of law by which such evidence may be introduced, as concisely stated in Robinson v. United States (13 Wall. 363), is, that evidence as to "custom or usage was properly received to ascertain and explain the meaning and intention of the parties to a contract, whether written or parol, the meaning of which could not be ascertained without the aid of such extrinsic evidence, and that such evidence was thus used on the theory that the parties knew of the existence of the custom or usage and contracted in reference to it." In the present case it is conceded that a kilo is equivalent to two and twenty one-hundredths and a fraction pounds, and no explanation is necessary as to the meaning of the language employed. Both parties clearly understood for what they were contracting, and they took the additional trouble to express their intention in precise words.
It was not made to appear that the barrels weighed 180 kilos, either in Belgium or at New York, the plaintiffs merely claiming that there was an inevitable sifting on the voyage and that delivery was not intended on the New York dock, but on board ship at Antwerp. Such a contention does not aid plaintiffs, for, as stated, there is no proof that the barrels ever contained 180 kilos of cement in Belgium; and there is force in the defendants' claim that the contract specifies the weight which should be delivered in New York.
The contention of the plaintiffs with regard to the first of the three shipments in question (the one known as the Salerno shipment), that the defendants should be held for damages for its non-acceptance on the special ground that they had originally rejected that shipment solely for the reason that it had not been made by a certain line of steamers, and the defendants had so notified the plaintiffs, is also of no moment. As pointed out by the learned judge below, the only evidence of the weight of the barrels of that shipment as well as the others, being the testimony of the United States government customs weighers, which showed that on arrival the cement was under weight, there was good cause for rejection even if the first refusal was wrongfully made, the plaintiffs not having elected to consider the contract rescinded on notice of the defendants' first rejection.
In bringing this action, therefore, for damages for the defendants' refusal to accept the three shipments of cement, the burden of proof was on the plaintiffs to show that the tender made was a good one and within the terms of the contract. Instead of so doing, no evidence was offered, other than that of the bills of lading and the consular invoice, both of which merely referred to the barrels as of 180 kilos, to show that the barrels had ever weighed the stipulated amount, either in Belgium or Antwerp, the port of shipment, or in New York, the port of delivery. Upon arrival when weighed, the shortage was manifest, and the plaintiffs undertook to substitute for evidence of performance evidence of custom to explain why the barrels when they arrived in New York were not up to weight. The burden was on the plaintiffs to show that the contract was fulfilled, and this was not shown. Evidence as to the matter of custom, if admissible at all, could only be rightfully received after the plaintiffs had proved themselves able and ready to furnish the full weight of cement called for by the contract.
As stated, we do not think that such evidence as was admitted with regard to custom was competent, and the case of O'Donohue v. Leggett (29 N.Y. St. Repr. 989) is directly in point. In that case, which was an action on a contract which called for the delivery of 1,700 piculs of coffee and the amount unladen from the ship proved to be but 1,645.50 piculs, the court said: "The contract was in no way indefinite or qualified as to the quantity, but the sellers, by means of it, undertook to deliver this quantity, and their contract could not be legally performed by delivering that amount (1,645.50 piculs), as there was no waiver on the part of the defendants to the right to demand full and complete performance of the agreement. Where a contract is clear and definite, as this was in this respect, evidence of custom or usage to change or vary it cannot be legally received."
To summarize, therefore, where the language employed in a contract is vague, indefinite and ambiguous, then parol evidence is competent to explain it; or where trade terms, uncertain or indefinite in meaning are used, then evidence of trade usage or custom may be resorted to in order to ascertain their intent and meaning. This, however, is but the formulation of a fundamental rule applicable alike to contracts, wills and all written instruments, that what is to be ascertained is the real intent and meaning of the parties to the instrument. The only thing doubtful in the contract under consideration is the word kilo, the measure of weight used in a foreign country. Unquestionably it is competent to show its meaning, but when this is ascertained all doubt is removed. There is here, moreover, no dispute about the meaning of the word, both sides agreeing that it is equivalent to two and twenty one-hundredths and a fraction pounds. Although its precise meaning is thus conceded, the appellants contend that it is competent to go further and show by parol, or by a trade usage or custom, that it means something else. The danger of resort to such evidence is clearly shown by this record wherein the witnesses differ, some testifying that it means two and twenty one-hundredths and a fraction pounds, which is its definite and literal meaning, and others that it may be something more or less, thus making it an indefinite and uncertain measure of weight. Although impossible to reconcile such conflicting testimony, we have some reasons for inferring that the witnesses approached the subject from different points of view. Thus, where cement is sold, not by precise weight but by barrels, it is generally regarded in the trade that it is sufficient if a barrel approximates in weight 180 kilos.
This contract, however, was not for 8,000 barrels merely, but was one for the sale of 8,000 barrels, "barrels to weigh 180 Kilos gross."
Under such a contract, where the meaning of the language used is definite and certain, the only result of admitting evidence of usage or custom would be to render it ambiguous and to substitute for the contract made one entirely different.
We think the order appealed from should be affirmed, with costs.
VAN BRUNT, P.J., and McLAUGHLIN, J., concurred; PATTERSON, J., dissented.
I concur with Mr. Justice O'BRIEN. The plaintiffs agreed to deliver in the city of New York 8,000 barrels of cement at $1.62½ for each barrel "ex dock," barrels to weigh 180 kilos gross. This contract was made in New York, dated in New York, the cement to be delivered upon the dock in New York, and the barrels were to weigh 180 kilos at the point of delivery upon the dock in New York. The contract is specific and unambiguous. It called for barrels of cement weighing 180 kilos each, and it was barrels weighing 180 kilos only that the defendants were bound to accept. As stated by Mr. Justice O'BRIEN, there was no dispute as to the equivalent in pounds of a kilo, but I think that the word "kilo" is now a recognized unit of weight in this State, of which the court will take judicial notice. It is so recognized in the Revised Statutes of the United States (§ 3570), which declares the equivalent in our system of the various terms of weights and measures in the metric system, and enacts that in the construction of contracts and all legal proceedings the equivalent established shall be recognized. In all English dictionaries it is recognized as a word incorporated into the English language. Thus, in the Standard Dictionary, the word "kilo" is defined as an abbreviated form of kilogram, and kilogram is defined as, "in the metric system, a unit of mass (or weight), originally defined as the mass of one cubic decimeter of water at its maximum density, but now, practically, as the mass of a certain piece of platinum preserved in the archives of the International Metric Commission at Paris," equaling 2.20462125 pounds, or 15,432.35 grains. The same definition is contained in the Century Dictionary. In the Imperial Dictionary the word "kilogram" is defined to be a French measure of weight equal to about two and two-tenths (2.2) pounds avoirdupois. In Worcester's Dictionary it is defined as a French weight equal to 2.206 pounds, and in Webster's Dictionary it is defined as "in the new system 1,000 grams, and equal in weight to 2 pounds 5 and a half drams." Thus, in our dictionaries, the word is recognized as one of known significance in the language, and its equivalent in pounds is stated and has thus become a word in common use in the English language, of which the courts will take judicial notice. The evidence is conclusive and undisputed that the barrels of cement tendered by the plaintiffs to the defendants did not weigh 180 kilos when they were delivered at New York "ex dock." The equivalent of 180 kilos in pounds would be upwards of 396 pounds, and there is no evidence to show that a single barrel was of the weight called for by the contract. The burden of proof was upon the plaintiffs to show that the barrels tendered were as called for by the contract, and, as stated by Mr. Justice O'BRIEN, evidence of a usage is not admissible to contradict the plain and unambiguous provisions of a contract. Evidence of usage would not have been admitted to prove that barrels meant boxes, or that 7,950 barrels meant 8,000 barrels. I can see no reason why evidence of custom should be competent to show that 179 kilos meant 180 kilos, or that 388 pounds meant 396 pounds.
I think the order appealed from should be affirmed.
I am not able to concur in the opinion of the court on this appeal. I think the order should be reversed and the verdict reinstated. The contract between the parties was for 8,000 barrels of Portland cement, the particular words upon the meaning of which the case turns being "barrels to weigh 180 Kilos gross." There is nothing on the face of the contract itself to show whether that provision referred to the weight at the port of shipment in Belgium or the weight on arrival at New York. The defendants in their brief admit that the contract was virtually for goods "to arrive." They bought merchandise to be imported. They must have known that those goods could not be entered unless they were invoiced at the correct sworn weight expressed in the foreign terms of weight obtaining in the country whence the shipments were made, for the law so requires. There is nothing in the contract as to the number of pounds. It is shown by evidence that a kilo by strict calculation is the equivalent of 396 pounds avoirdupois, but the defendants offered proof to show that the standard weight of a barrel of cement is 400 pounds. It was shown that Portland cement put up in barrels and transported across the ocean will always sift, and that there will always be some loss in weight. In setting aside the verdict, the trial judge has construed the contract as containing a strict requirement that the barrels should average at the time of delivery 396 pounds. On the trial, the view he took of the subject was, to use his own words addressed to the plaintiffs' counsel: "I think you have got to deliver under this contract barrels of cement of a reasonable average weight according to the custom of the trade." While that may not be precisely correct, I think the fair statement of the duty of the plaintiffs is that they were required to make deliveries in accordance with the intention of the parties. If that intention were that the barrels should average on the dock 396 pounds strict weight, then that which was done in part performance of the contract by the plaintiffs was insufficient. But if the parties intended that delivery should be made of barrels to weigh 180 kilos gross, according to commercial usage, then it was for the jury to say on the proven facts whether that which was done by the plaintiffs under the contract up to the time at which it was repudiated by the defendants, was sufficient performance that far. The plaintiffs' claim is that it was thoroughly understood in the trade that, in consequence of the fact that with all Portland cement transported across the ocean there will be sifting and leakage, it was the usage among all dealers in cement to accept, as good deliveries of 180 kilos, packages that should average not less than 388 pounds, thus allowing for the inevitable leakage of even sound packages. The court admitted testimony of that usage, and, as I think, properly, and the case is controlled by it if the jury found, as they must have done, certain necessary conditions to make that usage effective.
It is undeniable that evidence of a custom or usage inconsistent with the terms of a contract is not competent, and that it can only be resorted to to explain the intent of parties, when that intent cannot be ascertained without that evidence, and that it never can be given to contradict or vary the terms of a contract. ( Collender v. Dinsmore, 55 N.Y. 200.) In this case there is nothing to show that either party to this contract expected or understood or intended that 396 pounds actual and absolute weight should be required on delivery as the equivalent of 180 kilos. It is fair to presume that they were contracting with respect to commercial kilos, as understood among dealers in imported cement at the port of New York. Evidence to show what that was as bearing on the intent of the parties is admissible. In Miller v. Stevens ( 100 Mass. 518) evidence was allowed to show that in a written contract for the purchase of barrels of petroleum, the word "barrel" meant a vessel of a certain capacity and not the statute measure of capacity. There is a provision in the Revised Statutes of the United States (§ 3570) declaring the equivalent in our system of the various terms of weights and measures of the metric system, and enacting that in the construction of contracts, and in all legal proceedings, the equivalents established shall be recognized. It is not claimed, or suggested even by counsel, that that statute controls this case, and hence it is unnecessary to say anything further respecting it.
The evidence offered in this case was that by barrels "to weigh 180 Kilos" was intended that which was recognized by all dealers as being 180 kilos for the purposes of a contract and not the exact equivalent in pounds of a foreign standard of weight. In Whitney v. The Hop Bitters Manufacturing Company (2 N Y Supp. 438; affd., 121 N.Y. 682), referring to the terms of a contract requiring that bottles which, by express stipulation, were to weigh "twenty-two ounces and of uniform weight and color," it was held that these words were not to be understood in a strict sense, the court saying: "They are to be understood in the particular sense in which they were used in the trade, a product of which is the subject of the contract, and that evidence of usage is admissible to explain words used in such particular sense is well established."
There is nothing in the case of O'Donohue v. Leggett ( 134 N.Y. 40) which affects this question. There, evidence of a custom was disallowed because it would in effect have altered the contract very materially. That is to say, evidence of a custom for a buyer to accept or reject coffee after the receipt and examination of samples, there being no provision whatever in the contract relating to samples. In this case there is nothing in the evidence offered which contradicts the terms of the contract, but it simply goes to show that these parties were contracting with reference to that which was thoroughly understood in the trade to be, in commerce, the equivalent of a barrel containing 180 kilos, Belgian weight, on the arrival of such a package in New York.
There was sufficient testimony to show the existence of the usage or custom in the particular trade. With that evidence the written contract is applied to the subject-matter to explain expressions used in a special sense by particular persons as to a particular subject, and to give effect to language in the contract as it was understood by those who made use of it. When such usage is proven, it is deemed to be a part of the contract and to enter into the intention of the parties, and so they are presumed to contract with reference to the usage shown to exist at the particular place in which and relate to the trade as to which they enter into agreement. It is so far established and so far known to the parties that it must be supposed that their contract was made with reference to it. ( Walls v. Bailey, 49 N.Y. 469.)
If the contract, to recover damages for the breach of which this action was brought, had said in so many words that the barrels on delivery must be of the average weight of 396 pounds, there would have been a fixed term of the contract which could not be varied; but when weight is to be determined by foreign standard, to ascertain which proof must be given, it is open to inquiry as to what the parties really intended to contract for. I think this is one of those cases in which evidence is admissible to show that the parties were dealing with a term as understood at the place and in the trade in which the contract was made.
As this is a particular usage of a particular trade, all that has been said would be of no consequence unless the knowledge of the usage were brought home to the defendants. On the evidence it was for the jury to find whether the usage existed and whether the defendants knew of it.
I think the order setting aside the verdict was wrong and that it should be reversed, the verdict reinstated and the plaintiffs be allowed to enter judgment upon it.
Order affirmed, with costs.