Haas Brauch & Co. v. Store

• Court: New Mexico Supreme Court
• Writing for the Court: BICKLEY, J.
• Citation: Haas Brauch & Co. v. Grooms Sanitary Store, 31 N.M. 611, 249 P. 1014, 1926 NMSC 43 (N.M. 1926)
• Decision Date: 27 August 1926
• Docket Number: No. 2910.,2910.
• Parties: HAAS BRAUCH & CO.v.GROOMS SANITARY STORE.

31 N.M. 611

249 P. 1014

HAAS BRAUCH & CO.

v.GROOMS SANITARY STORE.

No. 2910.

Supreme Court of New Mexico.

Aug. 27, 1926.

Syllabus by the Court.

Whether a contract is a bargain and sale or an executory agreement for a sale depends upon the intentions of the parties, to be gathered from all the terms and stipulations of the contract taken in connection with the circumstances of the transaction, and is generally a question of fact.

The case being tried to the court sitting as a jury and no findings of fact or conclusions of law being asked or given, it is presumed from the general finding in favor of the appellee that all the issues were found in appellee's favor which were necessary to support the general finding.

Appeal from District Court, Otero County; Ed. Mechem, Judge.

Action by Haas Brauch & Co., against the Grooms Sanitary Store, a copartnership. From a judgment for defendant, plaintiff appeals. Affirmed.

Whether a contract is a bargain and sale or an executory agreement for a sale depends upon the intentions of the parties to be gathered from all the terms and stipulations of the contract taken in connection with the circumstances of the transaction, and is generally a question of fact.

York & Gardner, of Alamogordo, for appellant.

J. Benson Newell, of Alamogordo, for appellee.

BICKLEY, J.

Appellant, a corporation (plaintiff), sued appellee, a copartnership (defendant), on an open account for merchandise furnished appellee in the amount of $179.56. Appellee filed its answer admitting that it was indebted to appellant in the said amount, but counterclaimed in the amount of $120 by reason of a breach of contract between appellant and appellee in the sale of beans, claiming that appellant failed to deliver 40 sacks of beans according to the contract price, and that it was compelled to purchase beans in the open market and was compelled to pay $120 in excess of the contract price. Appellee tendered the sum of $59.56, the amount which they admitted owing appellant. Appellant answered the counterclaim admitting the contract for the sale of 40 sacks of beans on October 26, 1922, but claimed that said contract of sale was conditioned “on arrival” of the beans at El Paso. Upon such issues trial was had before the court without a jury, and judgment was rendered in favor of appellant for $59.56, which was the amount sued for less the amount claimed by defendant on its counterclaim. There were no separate findings of fact or conclusions of law made by the court and none asked by either of the parties.

On behalf of defendant testimony was offered that on October 25th the representative of the plaintiff sold to defendant 25 sacks of pinto beans, representing that his house in El Paso had the billing on the beans and that there was no question but that defendant would get them, while if purchase was made from others defendant might be disappointed. Copy of the order is as follows:

“October 25, Vuillaume Grooms Sanitary Gro., Alamagordo N. M. 25 sack Pinto beans, 8.00. On arrival.”

On the next day defendant ordered an additional 15 sacks of beans, which order was as follows:

“October 26, Vuillaume Grooms Sanitary Gro., Alamagordo N. M. December 31st delivery. 25 can Y. F. peaches 5.75; 25 can apricots 6.65; 15 sacks pinto beans 8.00.”

The negotiations resulting in the contract were conducted by a personal representative of the plaintiff and a representative of the defendant. Defendant's representative testified without objection that the representative of the plaintiff told him that the plaintiff had a bill of lading showing that the beans had been shipped from Colorado to plaintiff; that they were then in transit, and that the beans might be in El Paso at the time the order was solicited; that he, the representative of the defendant, understood that the phrase “on arrival” had reference to the time of delivery of the beans, and that from the conversations it appeared that they might be two or three days late in arriving on account of transportation delays; that plaintiff's representative explained that these words, “on arrival,” were inserted so as to show that defendant was not in any hurry for the beans. The second order did not contain the words “on arrival.”

Appellant says in its brief that there is but one question in the case, namely, “the proper construction of the phrase ‘on arrival.”’ Appellant cites 23 R. C. L. Sales, p. 1333, § 154, to the effect that:

“A frequent form of contract is for the sale of goods ‘to arrive’ or other equivalent words, that is, a sale of goods expected by the parties to arrive from a distance. It has uniformly been held that contracts of this description are conditional, the words ‘to arrive,’ or other equivalent words, not importing a warranty that the goods will arrive, and the obligation to perform the contract by an actual transfer of the property being, therefore, in the absence of other words showing a contrary intent, contingent upon its arrival.”

That may be good law, and yet the appellant not be entitled to a reversal in this case. It is claimed by the defendant that the circumstances and assurances of the plaintiff's representative did show an intent contrary to the usual meaning of such words “on arrival.” The same article in 23 R. C. L., at section 221, declares that:

“Parol evidence is generally held admissible to show the meaning intended by the parties, where terms used in a contract of sale have an ambiguous or uncertain meaning.”

There was no showing or offer by appellant to show that the phrase “on arrival” had any definite trade meaning.

The appellant cites Rogers v. Woodruff, 23 Ohio St. 632, 13 Am. Rep. 276, to the effect that evidence is inadmissible to prove that the parties intended otherwise than as defined by the text heretofore quoted (section 154). This statement seems not to be in accord with the general rule, but, if a correct statement of the law, it does not avail appellant, because it made no objection to the introduction by defendant of the evidence tending to show that the parties understood the phrase “on arrival” to...