Burton v. Jennings

• Decision Date: 14 February 1911
• Docket Number: 139.
• Citation: 185 F. 382
• Parties: BURTON v. JENNINGS.
• Court: U.S. Court of Appeals — Second Circuit

185 F. 382

BURTON v. JENNINGS.

No. 139.

United States Court of Appeals, Second Circuit.

February 14, 1911

On writ of error to the Circuit Court for the Southern District of New York to review a judgment entered upon the verdict of a jury in favor of the defendant in error (plaintiff below) for $4,679.89. The action is founded upon a contract made in the spring of 1904. It was tried once before, resulting in a similar verdict. The two trials aggregated nine days. The first judgment was reversed because of an erroneous ruling of the trial judge in holding that the contract was modified by a subsequent letter of the defendant. Burton v Berthold, 166 F. 416, 92 C.C.A. 168. The salient facts appear in the former opinion of this court and need not be repeated here.

John S Berthold having died September 14, 1909, the action was continued in the name of the plaintiff as surviving partner. The parties will be referred to as they appear in the court below.

Appell & Taylor (George H. Taylor, Jr., of counsel), for plaintiff in error.

Hyland & Zabriskie (Nelson Zabriskie, of counsel), for defendant in error.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

COXE Circuit Judge (after stating the facts as above).

This court decided that the contract between the parties consisted of the order inclosed in defendant's letter of April 14 1904, and the acceptance of the order by the plaintiffs on April 19, thereafter. The relevant parts of the order are as follows:

'Quality Sound Square Edge Rough Long Leaf Yellow Pine. Price Forty & 50/100 Dollars Delvd (40 50/100 per M ft.). Point of delivery Newark, New Jersey via Penn. R.R.'

Then follows a statement of the sizes of the lumber. The order concludes as follows:

'Your privilege of increasing the 12x14 & larger to any extent you may desire providing you deduct an equal amount for the 10x12 and 12x12. Ship no waney stock.'

Considerable correspondence followed the acceptance of this order which it is unnecessary to consider, in view of our former decision that the contract was complete on the acceptance by the plaintiffs and was not modified by what took place thereafter. The subsequent correspondence may, however, be resorted to in explanation of any ambiguities in the agreement. We have, then, an agreement by which the plaintiffs promised to deliver to the defendant 200,000 feet of sound, square edge, rough, long leaf yellow pine with no waney stock, for $40.50 per thousand feet. The plaintiffs, who resided in St. Louis, ordered the lumber in controversy from Western mills and it was delivered as provided by the agreement. The defendant refused to accept it as not complying with the conditions of the contract. It was sold and the plaintiffs sue to recover the difference between the amount received and the contract price. Of course the construction of a contract, if its language be plain and unambiguous, is for the court, but when it is couched in terms of art, it is necessary, in order to ascertain its meaning, to have recourse to those having knowledge of the trade nomenclature. If those familiar with the business in question differ as to what the words mean, it is proper to submit the question to a jury for solution. It may be safely asserted that 'sound square edge rough long leaf yellow pine not waney' conveys no very clear or definite meaning to one unfamiliar with the lumber business. Neither the court nor the jury could render an intelligent decision unless they understood what the contract meant.

It is argued by the defendant that the contract is unambiguous, that its construction was for the court and that it was error to submit to the jury questions relating to its meaning. Assuming the major premise to be correct, the conclusion naturally follows, but we think that the contract needed explanation, and, as there was a conflict as to its proper interpretation, it was for the jury to settle, in limine, the meaning of the trade terms employed. The court expressly charged that the contract was not modified by the subsequent correspondence but that, in view of the testimony as to custom, regarding which the witnesses were not in accord, he would submit to the jury the dispute as to its meaning. The question is presented by numberless exceptions but they will all be disposed of when we determine whether it was proper to introduce evidence of custom; if it were, and that evidence was conflicting there can be no doubt that it was properly submitted to the jury for solution. We think the jury were justified in finding the following facts:

First.-- That the defendant's order was a very unusual one for the New York market both as to size, length and quantity of lumber and that it would be a practical impossibility to fill such an order...