North American Ginseng Co. v. Gilbertson

• Decision Date: 15 December 1925
• Docket Number: 36970
• Citation: 206 N.W. 610,200 Iowa 1349
• Parties: NORTH AMERICAN GINSENG COMPANY, Appellee, v. A. O. GILBERTSON, Appellant
• Court: Iowa Supreme Court

206 N.W. 610

200 Iowa 1349

NORTH AMERICAN GINSENG COMPANY, Appellee, v. A. O. GILBERTSON, Appellant

No. 36970

Supreme Court of Iowa, Des Moines

December 15, 1925

Appeal from Floyd District Court.--M. F. EDWARDS, Judge.

ACTION upon a written contract, to recover the advance payment on the purchase of a quantity of ginseng. The defendant set up a counterclaim for damages, alleging a breach of the contract by the plaintiff. A jury was waived, and the cause tried to the court. Judgment was entered in favor of the plaintiff and the defendant appeals.

Affirmed.

J. C Campbell, for appellant.

Ernest Hausberg, for appellee.

STEVENS J. FAVILLE, C. J., and DE GRAFF and VERMILION, JJ., concur.

OPINION

STEVENS, J.

I.

On the 23d of May, the parties to this action entered into a written contract for the sale of a quantity of ginseng, as follows:

"St. Ansgar, Iowa, 5-23-23.

"Memorandum of Sale.

"Sold to the North American Ginseng Company, Inc. about 1000 pounds of dry Ginseng free of Culls, fiber and Broken Root, at $ 14.50 per pound.

"Prices on Culls, Fiber & Broken as follows:

"Price for Fiber $ 3.00 per pound.

"Ginseng to be shipped by Express about November 1st, 1923, addressed to the North American Ginseng Company, Inc., 126-130 West 22nd St., New York.

"Received as deposit and part payment on account $ 1,000.00. Balance to be paid when delivered to Express Co. at St. Ansgar.

"Upon making shipment seller agrees to value above shipment to Express Company at 10% above billing.

"Approved: North American Ginseng Co., Inc. per H. A. Schoenen, Buyer. Signed: Gilbertson Seed & Herb Co. by A. O. Gilbertson. Pr. Seller."

Appellant failed to deliver the ginseng, and, on December 11th, appellee demanded the return of the cash payment, and later commenced this action to recover the same. The execution of the contract is admitted, but appellant alleged, by way of counterclaim, that appellee breached it by refusing to receive the ginseng as soon as it could be dried and made ready for shipment. Appellant alleged in its answer and counterclaim that there exists a well established custom or usage among growers and dealers in ginseng that delivery shall not be made until the root has been thoroughly dried or matured, according to well established methods of treatment; that the ginseng in question did not mature so that the roots could be dug and dried in time for delivery November 1st, nor prior to December 11th, when appellee demanded the return of the advance deposit; that the custom and usage were well known and understood by the parties to this action; and that the contract of sale was entered into with the same in mind, and contemplated that delivery would be made as soon as the ginseng was matured and dried, as above stated. He further alleged that it was known and understood by both parties that the exact time when the ginseng would be ready for delivery could not be determined at the time the contract was executed, and that the exact date was not inserted therein for this reason. Upon motion of appellee, the court struck these allegations of the answer. This ruling presents the first question for our consideration.

By reference to the contract, it will be seen that the ginseng sold was to be "dry, free of culls, fiber and broken root." No plea or proof of usage or custom, which is sometimes treated as a part of the contract, could add anything to the contract. The usage and custom pleaded were as to the maturing of the root for shipment, and, as the contract required that it be dry, it fully took the place of any custom or usage as to this matter. The question is not one so much of custom or usage as it is of the circumstances surrounding the transaction and the admissibility of evidence thereof as tending to throw light upon the meaning intended by the parties by the words "about November 1st."

We assume that ginseng, which requires years to mature, is, nevertheless, to some extent seasonable, and that it reaches maturity in the fall. The term "about November 1st" admits of some flexibility, but it must, nevertheless, be held to mean substantially the date fixed, or a near approximation thereto. Six weeks after November 1st could hardly be said to have been within the contemplation of the parties. The term admits of no such flexibility when used in a contract to fix a time for the delivery of a commercial product. Freeman v. Hedrington, 204 Mass. 238 (90 N.E. 519); O'Brien v. Higley, 162 Ind. 316 (70 N.E. 242); White & Co. v. McMillan, 114 N.C. 349 (19 S.E. 234); Loomis v. Norman Printers Supply Co., 81 Conn. 343 (71 A. 358); Paine v. Commissioner of State Land Office, 66 Mich. 245 (33 N.W. 491).

The court permitted appellant to introduce testimony showing the treatment accorded the ginseng in question, and as to the time when it was ready for shipment, as well as of the decline in the market price from $ 12.50 to $ 10 per pound. We are of the opinion that delivery of the ginseng was not made or offered within the time clearly required by the terms of the contract, and that the court properly struck the plea of custom or usage from appellant's...