Breen v. Moran
| Decision Date | 14 December 1892 |
| Citation | 53 N.W. 755,51 Minn. 525 |
| Parties | Thomas M. Breen v. John D. Moran |
| Court | Minnesota Supreme Court |
Argued November 9, 1892
Appeal by defendant, John D. Moran, from an order of the District Court of Ramsey County, Egan, J., made April 23, 1892 denying his motion for a new trial.
Walter C. Doherty had a contract with the City of St. Paul to construct the Phalen Creek Sewer, and he sublet the work to defendant. The defendant contracted with plaintiff, Thomas M Breen, for such granite blocks as should be needed in paving the floor of the sewer, to be cut at St. Cloud and shipped by rail and delivered on board the cars at St. Paul. The faces of the blocks were of two sizes, one four by eight inches and the other six by six inches. The amount used was to be determined by measurement of the face in the work as completed. For the square blocks plaintiff was to be paid $ 1.40 per square yard and for the others $ 1.70.
Plaintiff claimed for 3,357 square yards of square blocks, and 680 square yards of oblong, amounting to $ 5,855.80, on which he had been paid $ 5,163.30, and this action was to recover the balance, $ 692.50, and interest. The jury returned a verdict for $ 712.28. Defendant moved for a new trial, and being denied, appeals. The controversy was over the condition of the blocks and the proper method of measuring the quantity. The facts on these points appear in the opinion.
Order reversed.
Warren H. Mead, for appellant.
Munn Boyesen & Thygeson, for respondent.
Evidence of custom is admissible to determine what the parties meant to explain the contract when it is ambiguous. Hewitt v. John Week Lumber Co., 77 Wis. 548; Hinton v. Locke, 5 Hill, 437; Patterson v. Crowther, 70 Md. 124; Walls v. Bailey, 49 N.Y. 464; Smythe v. Parsons, 37 Kan. 79.
The contract was executory; the granite blocks were to be of certain dimensions; this was a condition, not a warranty, and that condition was waived by accepting and using the blocks. Thompson v. Libby, 35 Minn. 443; Haase v. Nonnemacher, 21 Minn. 486; Maxwell v. Lee, 34 Minn. 511; Gaylord Mfg. Co. v. Allen, 53 N.Y. 515; Locke v. Williamson, 40 Wis. 377; Reed v. Randall, 29 N.Y. 358; McCormick v. Sarson, 45 N.Y. 265; Coplay Iron Co. v. Pope, 108 N.Y. 232: Beck v. Sheldon, 48 N.Y. 365.
One Doherty having by contract with the city of St. Paul undertaken to construct a large sewer in that city, the defendant afterwards, under subcontract with Doherty, assumed to perform that work. For use in the construction of the sewer the defendant purchased from the plaintiff granite blocks, the specified dimensions of some of which were four by eight inches, and of the others six by six inches. The price agreed upon was $ 1.70 per "square yard" for the former, and $ 1.40 per "square yard" for the latter, delivered to the defendant at St. Paul. This action is for the recovery of an alleged unpaid balance of the price of such blocks. The real contest is as to the number of "square yards" of blocks delivered, and this involves the question as to how the measurement should be made. All the blocks sold were used in the sewer, so that a determination as to the measurement of blocks in the sewer would also determine the quantity sold.
We may state in brief what is sufficiently apparent from the case, that when the contract of sale was made it was mutually understood that the stone was purchased for this particular use, the plaintiff being engaged in quarrying and selling such stone, and that the parties contracted with reference to that fact. It is uncertain from the terms of the oral agreement how the measurement of the blocks was to be made. It might be by estimating the aggregate area of the surfaces having the specified dimensions, -- four by eight inches and six by six inches, -- or it might be by measurement of the area after the stone should be laid in the sewer. But the circumstances under which, and with reference to which, the contract was made may be considered for the purpose of making clear the real agreement and mutual understanding of the parties, not fully expressed. As bearing upon the question as to what the parties meant by the words "square yard," it was proper to introduce proof of a local custom to estimate the quantity of stone sold for such purposes by measuring the area of the completed structure or work composed of such stone. Walls v. Bailey, 49 N.Y. 464, and cases cited. It is said that this was not admissible, because the custom had not been pleaded. We are of the opinion that a custom in its proper sense, even though local, need not ordinarily be pleaded. Lowe v. Lehman, 15 Ohio St. 179. Upon evidence directed to the proving of such a custom, the jury were allowed to take as a measure of the quantity of stone sold the area of the entire floor or bottom of the sewer for the pavement of which these blocks were used. There would be a considerable difference between this measurement and the aggregate superficial measurement of the stone blocks, estimating them to be of the specified sizes, -- four by eight and six by six inches,...
To continue reading
Request your trial