Fletcher v. Interstate Chemical

• Decision Date: 12 June 1920
• Docket Number: No. 405.,405.
• Citation: 110 A. 709
• Parties: FLETCHER v. INTERSTATE CHEMICAL CO.
• Court: New Jersey Supreme Court

110 A. 709

FLETCHER

v. INTERSTATE CHEMICAL

CO.

No. 405.

Supreme Court of New Jersey.

June 12, 1920.

(Syllabus by the Court.)

Appeal from District Court of Jersey City.

Action by Herbert Fletcher against the Interstate Chemical Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued February Term, 1920, before TRENCHAED, BERGEN, and KALISCH, JJ.

Frank G. Turner, of Jersey City, for appellant.

R. P. Wortendyke, of Jersey City, for appellee.

TBENCHARD, J. The defendant company gave the plaintiff an order in writing to deliver to it three presses "similar to our present Shriver presses," which order the plaintiff accepted. Pursuant thereto the plaintiff delivered three presses to the defendant, and this suit was brought to recover the unpaid part of the contract price (and for some other articles furnished). The defendant filed a set-off and recoupment for expenses which it claims resulted from making the presses conform to the contract. The trial judge, sitting without a jury, found for the plaintiff and the defendant appeals.

We are of the opinion that the judgment should not be disturbed. We think that the motion for a judgment for the defendant was rightly denied. The contract price of the presses was $1,231. The presses were delivered to the defendant, and it was a fair inference from the evidence that the only complaint respecting them was that they "were not according to the specifications," and did not "include pressure gauge, syphon and trough." The plaintiff promptly went to defendant's factory, and he testifies that the defendant then complained that there were no "troughs and pressure gauges," and that "a few wood screw heads were knocked off," and that the defendant promised that if these were furnished it "would make settlement of the bill." The plaintiff further testified that he supplied the screw heads, "furnished the pressure gauges," and "allowed him (defendant) for furnishing the troughs." Shortly thereafter the defendant paid $1,000 on account of the purchase price, and has always retained and used the presses. We think the testimony amply supports the judgment for the plaintiff (the judge having made proper allowance for the defendant's expenditure for the troughs).

The defendant's contention at the trial was, and now is, that its motion for judgment should have been granted because the presses were not "similar to our present Shriver presses," as required by the order, and this argument is based upon the insistence that the use of the word "similar" meant that they must be "exactly like" the Shriver presses. We think that there is no merit in that contention. The cardinal rule in the construction of all contracts, including contracts of sale, is that the court must, if possible, ascertain and give effect to the mutual intention of the parties, as far as that may be done without the violation of legal principles. Melick v. Pidcock, 44 N. J. Eq. 525, 15 Atl. 3, 6 Am. St. Rep. 901; United Boxboard & Paper Co. v. McEwan Bros. Co. (N. J. Ch.) 76 Atl. 550. While a written instrument must be construed according to the intent of...