Kinney v. Horwitz

• Decision Date: 30 January 1919
• Citation: 105 A. 438,93 Conn. 211
• Court: Connecticut Supreme Court
• Parties: KINNEY v. HORWITZ et al.

105 A. 438

93 Conn. 211

KINNEY v. HORWITZ et al.

Supreme Court of Errors of Connecticut.

January 30, 1919

Appeal from Superior Court, New Haven County; Donald T. Warner Judge.

Action by Harry E. Kinney against Max Horwitz and others, copartners in business under the name of the Newark Produce Company. Judgment for plaintiff, and defendants appeal. No error.

Barnett Berman, Charles Cohen, and Philip Pond, all of New Haven, for appellants.

Harrison Hewitt and Charles E. Clark, both of New Haven, for appellee.

GAGER J.

This is an action to recover the price of a carload of potatoes shipped by the plaintiff in Maine to the defendants in New Haven, as copartners in business in New Haven under the name of the Newark Produce Company. The potatoes arrived in New Haven on January 24th, and on the evening of the same day a postal card notice of the arrival was sent the defendants. On February 5th the car was placed on a side track for unloading, and early on the morning of the 5th notice by telephone was given the defendants of the arrival of the car. The potatoes remained in the car, untouched by the defendants, until February 13th, when they were destroyed by fire. The trial court held that the property in the potatoes was in the defendants at the time of the fire, and that they were liable for the price. There are several reasons of appeal which are well summarized by the appellants as follows:

(1) The plaintiff did not prove compliance with the statute of frauds, which is a bar in this action.

(2) The plaintiff did not prove performance of the condition precedent to the accrual of the defendants' obligation to pay, to wit, presentation of the draft.

(3) The risk of loss was on the plaintiff, who was the owner of the goods at the time of their destruction.

(4) The trial court should not have found against the defendant because of any delay, since the complaint did not allege delay and the issue of delay was not raised by the pleadings.

(5) The plaintiff's complaint states a cause of action for breach of an executory contract of sale, upon which a judgment for the contract price should not have been founded.

(6) The plaintiff, if entitled to any judgment, should have been limited to the recovery of nominal damages.

That the contract for the sale was within the statute of frauds is admitted, and the defendants claim that they are not liable because the contract was not executed in compliance with the statute. The finding shows the contrary. R. E. McLatchy Company were brokers of produce in Boston, and had done business for both plaintiff and defendants. January 30, 1912, the plaintiff notified McLatchy Company that he had a carload of potatoes for sale. McLatchy Company by telephone communicated with the defendants in New Haven, who authorized McLatchy Company to offer plaintiff $1.22 per bushel for a car of potatoes delivered to them at New Haven. Thereupon McLatchy Company wired plaintiff: " Ship one car of potatoes to Newark Produce Company, New Haven, $1.22 delivered. R. E. McLatchy Company." The plaintiff, immediately upon receipt of this telegram, wired back to McLatchy Company: " Will ship car to New Haven. H. E. Kinney." By letter McLatchy Company, on receipt of this telegram, confirmed this sale to the defendants. On the same day the brokers made the following entries on their books: " H. E. Kinney, Burnham, Maine, 1912, Jan. 30-1-Newark Produce Co. $6; " and upon a card index, the following: " Newark Produce Co. New Haven, Conn. 2 Jan. 30, 1912; 1 car pots. $1.22, H. E. Kinney." The written contract is contained in the order to Kinney signed by the brokers by authority of the defendants, the acceptance of the offer signed by Kinney, followed by written confirmation sent defendants by the broker. The entries are in conformity. This order of the broker is a " note or memorandum in writing of the contract of sale signed by the party to be charged or his agent in that behalf." Statutes, § 6131. The contract so evidenced contains the essentials of the contract, to wit, the subject of the sale, the names of the parties to the contract, the price and the place of delivery. This is sufficient to satisfy the statute. O'Sullivan v. Overton, 56 Conn. 105, 14 A. 300; Nichols v. Johnson, 10 Conn. 198; Roach v. Lane, 226 Mass. 603, 116 N.E. 470. That the signature of the brokers authorized by the defendants is sufficient see Butler v. Thomson, 92 U.S. 412, 23 L.Ed. 684; Coddington v. Goddard, 82 Mass. (16 Gray) 436; O'Sullivan v. Overton, supra.

The court also found a custom of the trade in the following language:

" By the custom of the trade a contract for the sale of a carload of potatoes for $1.22 delivered at New Haven carried with it the provisions that payment should be made by means of a draft for the purchase price drawn by the vendor on vendees, payable upon the arrival of the goods to which draft should be attached and properly indorsed bill of lading of the goods, which bill of lading was to be delivered to the vendees upon payment of said draft, and, further, that the vendees should have the right of inspection of the goods before the payment of the draft, and said custom entered into and formed part of said contract for the sale of said potatoes."

This finding as to custom in no way contradicts the written evidence of the contract. It states how, in the trade, payment was to be made in the absence of contract to the contrary, and its usage becomes a part of the contract. As stated in Leach v. Beardslee, 22 Conn. 404:

" In such case it may be taken that the usage entered into and became part of the contract."

This principle is well established in reference to all contracts, whether written or verbal. Judge Story in the Schooner Reeside, 2 Sumner, 567, F. Cas. No. 11,657, as quoted with approval in Seymour v. Page, 33 Conn. 66, said:

" The true and appropriate office of a usage or custom is to interpret the otherwise indeterminate intentions of parties and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions and acts of a doubtful or equivocal character." Wiggin v. Federal Stock & Grain Co., 77 Conn. 516, 59 A. 607; Skiff v. Stoddard, 63 Conn. 219, 26 A. 874, 28 A. 104, 21 L.R.A. 102; Kilgore v. Bulkley, 14 Conn. 390.

It is therefore not only proper, but necessary, in order to do justice between the parties, to construe the contract with reference to the custom as found by the court.

The defendants further claim that the plaintiff did not show performance of the condition precedent to the accrual of the defendants' obligation to pay, to wit, presentation of the draft. There are two answers to this claim: The court has expressly found due and regular presentment to the defendants on the day of its arrival in New Haven, February 2, 1912. Technical presentment is not necessary to charge the person primarily liable. Statutes, § 4428. Before there could be any laches or culpable delay on the part of the defendants they must, of course, have notice of the arrival of the draft, bill of lading, and goods, but the finding shows actual presentment of the draft, full and prompt information that the draft and bill of lading were at the Second National Bank, and the defendants were further informed on February 4th of the arrival of the potatoes, and on February 5th of the arrival of the car, and that it had been placed on tracks in position for unloading. So that it appears from the finding that by the morning of February 5th the defendants were possessed of all information called for by the contract or necessary to be known by them to act with reference to the draft, the bill of lading, and the potatoes. That the finding of the court was amply justified is apparent from a letter written by defendants to plaintiff December 26, 1912, in which they say:

" We were waiting for the man who bought the car, whom we expected to come home before Christmas; but he did not come home. *** Again, in reference to the car laying on the track, we were going to pay the draft on the car of potatoes when we were informed by the railroad that the car was burned. We have no idea how long the car was laying on the track or when we were notified of its arrival."

The inference is strong that the delay of the defendants was purely for their own convenience in connection with a resale. However that may be, the defendants delayed at least a week after full notice, and before the destruction of the potatoes, without making or attempting to make an inspection, or take the potatoes.

Perhaps the most serious claim of the defendants is that at the time of the fire the risk of loss was on the plaintiff. It appears: That the plaintiff on shipping the goods took out a bill of lading to the order of " H. E. Kinney, New Haven, Conn. Notify Newark Produce Company, New Haven, Conn Inspection allowed." That the plaintiff attached this bill of lading to a draft upon defendants under their firm name of the Newark Produce Company for $769.56, payable on the arrival of the goods, and indorsed the bill of lading. " When draft paid deliver to Newark Produce Company, H. E. Kinney," and delivered the draft with the bill of lading attached to his bank for collection, which forwarded it to the Second National Bank of New Haven, at which bank it arrived February 2d. Immediately thereafter followed presentments and notices as to the draft and bill of lading and notice of arrival of potatoes as above stated. On February 13, 1912, the car caught fire, and the potatoes were destroyed, and on February 14th the defendants, after notice of the fire, refused to pay the draft, and have never paid the draft or for the potatoes. It does not appear that defendants ever...