Hurst v. W.J. Lake & Co., Inc.
| Decision Date | 06 December 1932 |
| Citation | 141 Or. 306,16 P.2d 627 |
| Parties | HURST v. W. J. LAKE & CO., Inc. [*] |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.
Action by Roscoe P. Hurst against W. J. Lake & Co., Inc., in the nature of assumpsit to recover an alleged balance of $5 per ton on 140 tons of horse meat scraps purchased by defendant from plaintiff pursuant to a written contract. From a judgment for defendant allowing defendant's motion for judgment on the pleadings after the complaint, answer, and reply had been filed, plaintiff appeals.
Reversed.
R. R Bullivant, of Portland (Clark & Clark, of Portland, on the brief), for appellant.
P. J. Gallagher and George B. Guthrie, both of Portland, for respondent.
From the portion of the pleadings which we are required to deem true, it appears that March 20, 1930, the plaintiff and the defendant entered into an agreement in writing, a copy of which follows:
Buyer: W. J. Lake & Co., Inc. Seattle, Washington.
Commodity: Horse meat scraps.
Quantity: 350 tons of 2000 lbs. each.
Price: $50.00 per ton f. o. b. cars Portland.
Terms of Payment: Net cash in Portland on delivery with analysis certificate.
Time of Shipment: Prior to April 20th, 1930.
Route: As directed by buyer.
Specifications: Minimum 50% protein, ground and sacked in 100 lb. net each.
Additional specifications on supplementary page.
Pursuant to the contract, the plaintiff delivered to the defendant 349.25 tons of horse meat scraps which contained the following percentages of protein, and for which the defendant paid the following sums of money: 180 tons contained an excess of 50 per cent. protein, and the defendant paid for it $50 per ton; 29.25 tons contained 48.66 per cent. protein, and the defendant paid therefor $45 per ton; 140 tons contained protein varying from 49.53 per cent. to 49.96 per cent., for which the defendant paid $45 per ton. The following allegation of the complaint we are required to deem true:
"That at the time the written contract heretofore referred to for the sale of horse meat scraps was entered into on or about the 20th day of March, 1930, both plaintiff and defendant then were, and for some time prior thereto had been, engaged in the business of buying and selling horse meat scraps; that at the time said contract was entered into there was a custom and usage of trade in said business well known to both plaintiff and defendant as to the meaning of the terms 'minimum 50% protein' and 'less than 50% protein' used in the agreement between plaintiff and defendant. That by virtue of said custom so prevailing in said business of buying and selling horse meat scraps it was well known and understood among all members of the trade, including both plaintiff and defendant, that the terms 'minimum 50% protein' and 'less than 50% protein' when used in a contract for the sale of horse meat scraps with reference to a test of its protein content, meant that a protein content of not less than 49.5% was equal to and the same as a content of 50% protein. That it was further a part of said custom that where said terms 'minimum 50% protein' and 'less than 50% protein' should be used in a contract of sale it was and is the duty of the buyer to accept all horse meat scraps and pay for the same at the rate provided for a product which would test a minimum of 50% even though the chemical analysis of the product should show that the horse meat scraps actually should test as low as 49.5% protein content.
That said custom in all its particulars was well known to both plaintiff and defendant and entered into and formed a part of the contract between plaintiff and defendant.
"That the said terms 'minimum 50% protein' and 'less than 50% protein' as used in said contract between plaintiff and defendant were known, understood and used in said contract by both plaintiff and defendant to have the meaning and significance given to said terms by the custom and usage heretofore alleged; that it was the intention of both the plaintiff and defendant that the said terms as used in said contract should mean that the defendant was and should be required to pay the plaintiff at the 50% protein content rate for all meat scraps delivered by plaintiff to defendant which should test as low as 49.5% protein content."
Based upon the contention that the above-quoted portion of the complaint, admitted as true by the defendant, shows that the 140 tons with a protein content of 49.53 per cent. to 49.96 per cent. should have been regarded as within the 50 per cent. protein classification, the plaintiff argues that the circuit court erred when it sustained the defendant's motion for judgment on the pleadings.
It will be observed from the foregoing (1) that there is a group of dealers who trade in the commodity known as horse meat scraps; (2) that both plaintiff and defendant are members of that group; (3) that the terms "minimum 50% protein" and "less than 50% protein" are trade terms to which the group has attached meanings different from their common ones; (4) that this usage, prevalent among this group, demanded that, whenever those terms appeared in a contract for the sale of horse meat scraps, it became the duty of the buyer to accept all scraps containing 49.5 per cent. protein or more, and to pay for them at the rate provided for scraps containing full 50 per cent. protein; and (5) that the defendant was aware of all of the foregoing when it attached its signature to the aforementioned contract.
The flexibility of or multiplicity in the meaning of words is the principal source of difficulty in the interpretation of language. Words are the conduits by which thoughts are communicated, yet scarcely any of them have such a fixed and single meaning that they are incapable of denoting more than one thought. In addition to the multiplicity in meaning of words set forth in the dictionaries, there are the meanings imparted to them by trade customs, local uses, dialects telegraphic codes, etc. One meaning crowds a word full of significance, while another almost empties the utterance of any import. The various groups above indicated are constantly amplifying our language; in fact, they are developing what may be called languages of their own. Thus one is justified in saying that the language of the dictionaries is not the only language spoken in America. For instance, the word "thousand" as commonly used has a very specific meaning; it denotes ten hundreds or fifty scores, but the language of the various trades and localities has assigned to it meanings quite different from that just mentioned. Thus in the bricklaying trade a contract which fixes the bricklayer's compensation at "$5.25 a thousand" does not contemplate that he need lay actually 1,000 bricks in order to earn $5.25, but that he should build a wall of a certain size. Brunold v. Glasser, 25 Misc. 285, 52 N.Y.S. 1021; Walker v. Syms, 118 Mich. 183, 76 N.W. 320. In the lumber industry a contract requiring the delivery of 4,000 shingles will be fulfilled by the delivery of only 2,500 when it appears that by trade custom two packs of a certain size are regarded as 1,000 shingles, and that hence the delivery of eight packs fulfills the contract, even though they contain only 2,500 shingles by actual count. Soutier v. Kellerman, 18 Mo. 509. And, where the custom of a locality considers 100 dozen as constituting a thousand, one who has 19,200 rabbits upon a warren under an agreement for their sale at the price of 60 pounds for each thousand rabbits will be paid for only 16,000 rabbits. Smith v. Wilson, 3 Barn. & Adol. 728. Numerous other instances could readily be cited showing the manner in which the meaning of words has been contracted, expanded, or otherwise altered by local usage, trade custom, dialect influence, code agreement, etc. In fact, it is no novelty to find legislative enactments preceded by glossaries or brief dictionaries defining the meaning of the words employed in the act. Technical treatises dealing with aeronautics, the radio, engineering, etc., generally contain similar glossaries defining the meaning of many of the words employed by the craft. A glance at these glossaries readily shows that the different sciences and trades, in addition to coining words of their own, appropriate common words and assign to them new meanings. Thus it must be evident that one cannot understand accurately the language of such sciences and trades without knowing the peculiar meaning attached to the words which they use. It is said that a...
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