Scott v. Hartley
| Decision Date | 31 October 1890 |
| Citation | 126 Ind. 239,25 N.E. 826 |
| Parties | Scott et al. v. Hartley. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Marion county; N. B. Taylor, Judge.
John S. Tarkington and A. J. Beveridge, for appellants. Sullivan & Jones, for appellee.
This is an action upon a contract entered into by telegram and letter. It is a contract in writing, and therefore the rules governing written contracts must be applied in determining the rights of the parties. By the contract, the appellee sold and agreed to deliver to the appellants 7,500 bushels of corn, the place of delivery being Philadelphia, Pa. The complaint alleges a delivery of the corn at the place and within the time agreed upon, and a refusal on the part of the appellants to receive and pay for the same, to the appellee's damage, etc. The telegrams and letter, of which the contract is composed, read as follows:
The appellants submitted a demurrer to the complaint, which the court overruled, and they reserved an exception. They then filed an answer, and a cross-complaint, to which the appellee filed demurrers, which were sustained, and the appellants had an exception noted. The appellants elected to stand by their answer and cross-complaint, and refused to plead further; whereupon, after due inquiry, the court gave judgment for the appellee. The foregoing proceedings having occurred at special term, the appellants appealed to general term, and assigned error as follows: (1) The court erred in overruling the demurrer to the complaint; (2) in sustaining the demurrer to the answer; (3) in sustaining the demurrer to the cross-complaint. The court, in general term, affirmed the judgment at special term, and the appellants prosecute this appeal. Counsel for the appellants do not urge the first error. There was but one paragraph in the answer, and the cross-complaint was likewise limited. There is no question arising upon the third error that is not presented by the second. We will therefore confine ourselves to a consideration of the answer. As we have said already, the answer is in but one paragraph. The appellants claim immunity from liability because of their failure to receive and pay for the corn by reason of a custom or usage which they insist pre vailed among grain dealers, and entered into and formed a part of the written contract. The answer alleges that long before and at the time the contract was made it was “the well-known, usual, general,uniform, and reasonable usage, and the known and usual course of trade and business, of persons engaged in the said business of the purchase and sale of grain,” that when grain was purchased in Indiana to be delivered in Philadelphia, or other cities in the eastern states, the delivery to be made by the seller to the purchaser, or his consignee, in any such city, at a stated price on the “track,” or “net,” or “net track,” such grain was to be delivered on the railroad track at such city without the payment of freight by the seller, and that the purchaser, and not the seller, should receive such grain, and pay the freight thereon from the place of shipment to the place of delivery, and thereupon charge the amount of the freight so paid back to the seller, and deduct it from the purchase price of the grain, and thus fix the net price. It is then alleged: “And, accordingly, it was the general usage in said business and trade for the purchasers of grain to be shipped to said cities to contract with the transportation companies, and pay them for the shipment of such grain at such rate for freight as they might agree upon, and on such contract for freight the price to be offered and paid depended, varying more or less with the rate of freight charges to be paid by the purchaser under such contract.” No apparent reason appears in the answer why it should be more to the interest of the purchaser that the freight charges should be paid at the place of delivery rather than at the place of shipment. It is stated in argument, however, that the appellants, or their consignee, belonged to a class of shippers to which transportation companies allowed a rebate in the nature of a bonus from regular rates, which was the foundation for the custom or usage alleged, and, by the prepayment which the appellee made, they were deprived of the benefit thereof. If the facts, as given in the argument, appeared in the pleading, it might be a question worthy of consideration whether or not a usage resting upon such a foundation would not be against public policy,-a question to which we have given no consideration.
The transaction here in question transpired before the act of congress regulating interstate commerce came into force, and hence we do not consider it with reference to that law. This brings us to the question more particularly discussed by counsel. Conceding that it sufficiently appears that there existed a usage such as the appellants claim does, does it enter into and control the rights of the parties under the contract here involved? We are apprised of the rule contended for by the appellants, but the difficulty is in its application. Where the terms of a written contract are uncertain or ambiguous, they are open to explanation, and parol evidence is admissible of an existing usage or custom if it will tend to clear away the one or to remove the other. So, where there are words or phrases peculiar to a trade or business found in a written contract, they are open to explanation by parol evidence, and the same may be said of abbreviations. To this extent, we think the authorities cited by appellant's counsel go, and no further. The authorities which support this rule are abundant. But there is another rule equally well settled and supported, which excludes parol evidence of a usage or custom for the purpose of varying the terms or conditions of a written contract when it is free from uncertainty or ambiguity. The controlling reason in support of this rule is that, if such evidence is allowed, the law makes and enforces a different contract than the one executed by the parties. The proper distinction is made, we think, in the late case of Smith v. Clews, 114 N. Y. 190, 21 N. E. Rep. 160. That was an action brought to recover the possession of two diamonds and their settings, called a “pair of diamond...
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...743; Alspaugh v. Dillon, 83 Conn. 65, 70, 75 A. 82; Gibbs v. People's National Bank, 198 Ill. 307, 311, 64 N.E. 1060; Scott v. Hartley, 126 Ind. 239, 245, 25 N.E. 826; 3 Bouvier's Law Dictionary, p. 2332. The statement of the price ‘$8500 net’ means that the defendants were entitled to rece......
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