Alderman Bros. Co. v. Westing House Air Brake Co.

• Decision Date: 12 March 1918
• Citation: 92 Conn. 419,103 A. 267
• Parties: ALDERMAN BROS. CO. v. WESTING HOUSE AIR BRAKE CO.
• Court: Connecticut Supreme Court

103 A. 267

92 Conn. 419

ALDERMAN BROS. CO.

v. WESTING HOUSE AIR BRAKE CO.

Supreme Court of Errors of Connecticut.

March 12, 1918.

Appeal from Superior Court, New Haven County; Gardiner Greene, Judge.

Action by the Alderman Bros. Company against the Westinghouse Air Brake Company. From judgment for plaintiff, defendant appeals. New trial ordered for error.

See, also, 91 Conn. 383, 99 Atl. 1040.

The complaint alleges that the defendant sold to Jacob Swirsky of New Haven three carloads of brass chips containing 244,160 pounds at the rate of 15 1/2 cents per pound; that the defendant sent the three carloads of metal to New Haven and bills of lading accompanied by sight drafts; that Swirsky assigned all his right, title, and interest to the plaintiff, who paid the drafts and now owns the goods; and that upon weighing the metal which reached New Haven there was found a shortage of 39,625 pounds, amounting, at 15 1/2 cents a pound, to $6,141.87. The answer admits and alleges that the defendant "agreed to sell" to Swirsky certain brass chips as per a verbal contfact entered into between Swirsky and the defendant "confirmed in defendant's letter to Swirsky on that day." The material parts of the letter, which was signed by the defendant, but not signed by Swirsky, are as follows:

"April 26, 1916. Mr. J. Swirsky—Dear Sir: We wish to confirm our verbal sale to you this day of the following material. Our accumulation of brass turnings (not less than 200 tons) at 15 1/2 per lb. * * * All of the above prices are f. o. b. cars Wilmerding, Pa. Terms sight draft on arrival at destination."

The answer further alleges that pursuant to the contract the defendant delivered to the carrier at Wilmerding three carloads of brass chips weighing 244,160 pounds, consigned to the defendant care of J. Swirsky, and that sight drafts accompanying the bills of lading were sent to the defendant's agent in New Haven "notify Mr. J. Swirsky." The plaintiff's reply denied that the goods were delivered to the carrier "for shipment to J. Swirsky."

Upon these pleadings the parties went to trial, and, the fact of a considerable shortage at New Haven being established by uncontradicted testimony, the substantial question was whether the loss should fall on the plaintiff or on the defendant. Upon this question the court charged the jury, in substance, that if the loss occurred in transit without the fault of either party, the title at the time of the loss was in the defendant, and that therefore the loss must fall upon it. The material rulings on evidence are sufficiently stated in the opinion.

Frederick H. Wiggin, of New Haven, for appellant. Benjamin Slade and Charles Cohen, both of New Haven, for appellee.

BEACH, J. (after stating the facts as above). One Forrester, called by the defendant, testified that he was the agent of the defendant who wrote the letter Exhibit G and handed it to Swirsky in defendant's factory at Wilmerding, and that he had previously on the same day had a conversation with Swirsky about the sale of the brass turnings referred to in Exhibit G. He was asked to state the conversation, and on objection the court ruled that parol evidence was inadmissible to vary the terms of the contract stated in Exhibit G. On the same ground parol evidence was excluded which was offered for the purpose of showing that Swirsky had no credit on defendant's books; that by the custom of the trade scrap metal, when sold to customers without established credit, was shipped "sight draft against bill of lading," and that at Swirsky's request the phrase "sight draft on arrival at destination" was substituted for the sole purpose of extending the time of payment. These rulings were erroneous. The letter Exhibit G does not purport to be a written contract, for it is not signed by both parties. It was argued that the defendant was estopped by the form of its answer from claiming that the entire contract was not embodied in the letter. That cannot be so, for both the answer and the letter refer to the contract as an antecedent verbal contract, characterized in Exhibit G as a verbal sale. Exhibit G identifies the subject-matter and states the terms of price, delivery, and payment, but all this is by way of confirming the antecedent verbal sale, and until that is inquired into we cannot tell whether or not all the terms of the contract are embodied in Exhibit G.

Testimony was properly admitted to the effect that the accumulation of brass turnings was pointed out to Swirsky at or before the making of the contract, and while it lay in a pile by itself on the floor; and Forrester's testimony as to the entire transaction was admissible, including the custom of the trade and the real reason for using the phrase "sight draft on arrival at destination." As we cannot tell what testimony may be offered at the new trial, it is desirable to point out what effect should be given under the Sales Act to the fact that the bills of lading were drawn to the seller's order, indorsed in blank, and forwarded to the seller's agent in New Haven with sight drafts attached.

If the verbal transaction of April 26th was a present...