Caleb F. Linsley v. Noble Lovely, 26 Vt. 123

The opinion of the court was delivered by Bennett, J. The only question litigated in the court below, was whether the action was prematurely brought or not. The questions raised upon the bill of exceptions, are somewhat numerous ; and have been discussed with much ability by counsel 5 and it becomes the duty of the court to dispose of them, as far as the interest of the parties may require.

It is claimed by the plaintiff, that the bills of the goods sold and delivered to the defendant’s agent, at the time of the sale, embody the contract, and preclude the introduction of parol evidence to show that the sales were made upon a credit of six months. The bills simply state, that on a given day, the defendant bought of the plaintiff certain articles, at given prices, with a memorandum on the margin, “ six per cent off for cash.” The bills are not subscribed by either of the parties; but we do not put our decision on that ground.

If the hill of sale expresses the contract of the parties, it cannot be controlled by parol evidence any more than any other written contract. But the bills of sale in this case do not import a contract; and here is the error in the argument. The bills were given, not to express a contract, but in consequence of one having been previously made; and they are simply declaratory of a fact; and out of this, with other things, a contract is to be made.

The question is not, whether the defendant can contradict any fact stated in the bills; but whether he can show the true contract of the parties, consistent with those written declarations. The case of Ford v. Yates, 40 Com. Law Rep. is perhaps the strongest case to be found in favor of the plaintiff’s views on this question.

In that case, there was a written contract to deliver goods, and no time for the payment of them, mentioned in it; and it was held, that the delivery and the payment were contemporaneous acts; and that parol evidence was not to be received, to show that the payment was to be made at a future day. .The court in that case, assumed the ground, that the memorandum entered into by the broker, was a binding memorandum of the contract of the purchase and sale under the statute of frauds 5 and it is only upon that supposition, that the case is to have weight as an authority.

The cases in this state have all gone upon the ground that the bill of sale embodied a contract. Lockett et al. v. Nicklin, 2 Exch’r Rep. 93 is not, I apprehend, to be distinguished in principle from the case at bar; and in that case the parol evidence was received. II. We think Draper was a competent witness after the execution of the release to Mr. Hickok. He released all claims, which he had, as an individual, or as a partner of Draper, Aldrich & Frink, upon the funds in the hands of Hickok.

It is a common principle, that where two or more have a joint personal interest, the release of one is the release of all, and bars the others. Pierson v. Hooker, 3 Johns. 70. Bulkley v. Dayton, 14 Johns. 387. In this latter case, the release was in form like the one in this bill of exceptions. It was a release by one partner of all right and claim as a partner; and yet its effect was held to be a discharge of the whole partnership debt. IH. We cannot see that Hickok had any certain interest in the event of this suit.

He held the funds as the assignee of Lovely, as a mere stake-holder; and in regard to his interest, as it is said, growing out of the covenants of his deed of Lovely’s real estate, it may be answered, that Hickok has a full indemnity in his hands, in case the plaintiff recovers, out of which the judgment may be satisfied; and it is a non sequiter that the plaintiff would even levy on the real estate, in case of a recovery, and thereby disturb the easements in Hickok’s deed. In such a ease, the interest of the witness must, at most, be contingent. Enters v. Peres, 2 Rawle 279.

Besides we think, that when he had been called as a witness, and sworn in chief and examined, though upon a question to the court touching the interest of another witness, still the party calling him, cannot object to the opposite party’s examining him, upon the merits of the cause to the jury. It is none the less a waiver of the interest of a witness by the party calling him, though called to lay the ground for the exclusion of another witness. IY. So much of the deposition of Goodrich as goes to state how he “understood ” the purchase to have been made, we think admissible.

His understanding on that occasion was the understanding of Lovely, his principal; and to determine what or when a contract is made, we must ascertain the understanding of each of the parties. The weight of this would he for the jury. When he states, how he is confident the contract was understood on the part of the plaintiff, and that he or his agent understood it to be a sale upon six months’ credit, this is nothing but the opinion of the witness, and is one of the facts to be found by the jury, from the evidence in the case. In admitting this part of the deposition there was, we think, error.

If at the time of the sale, Goodrich had supposed that the plaintiff had understood the transaction to be a sale for cash, and had taken no means to correct the error, but perfected the sale with an intent to claim it to have been a sale upon a credit of six months, this might be important for the plaintiff; and doubtless he might prove it. V.

In regard to the custom or usage, we may remark, it can never be given in evidence, to vary or control an express contract; but its office is, to aid in ascertaining what the true contract of the parties was, and its nature and extent, which otherwise might be indeterminate and uncertain, arising from implications, presumptions, and acts more or less equivocal. The office of an usage is strictly one of exposition, and is allowable to be given in evidence as one means of arriving at the intention of the parties; and can never be received to thwart it, when it is clearly and fully expressed.

The usage set up in this case, that it may discharge the office of exposition, must be found to be the general usage of the whole of that class of houses in the city of New York, to which the plaintiff belonged; and so well established and uniformly acquiesced in, and for such a length of time, that the jury might be fairly justified in inferring that it was known to the contracting parties, and that it entered into their minds, and made, by implication a part of their contract.

If such an usage is not proved, it should be laid out of the case; and if the offer is not to prove such an usage, the evidence should be excluded. Nothing short of this will answer. In the present case, there was, as the court below held, a failure to prove an usage, (which in most cases would be a question for the jury,) and the jury were directed to lay it out of the case, as an usage. VI. We see no objection to the parol testimony to explain the meaning of the words endorsed on the bills of sale, “ six per cent off for cash,” or to the charge of the court upon it.

The words are of an equivocal character, and in such' a case, it is competent to prove to the jury how they are understood by an usage among men engaged in the same class of trade with the plaintiff. 2 Cow-en & Hill’s notes to Phillips on Ev. 1418-19.

Though the usage was not proved, yet the court told the jury, “ that the course of dealing in that branch of trade, in which the plaintiff was engaged, was proper to be considered by them, in reference to what was the actual agreement between the parties, providing the circumstances attending the transaction were such as to satisfy them, that the ordinary course of dealing really formed the basis of the contract of the parties.” We think there was error in this part of the charge, and that it was eminently calculated to mislead the jury.

A general custom or usage must be proved before it can have effect, and it must be such a one as the law recognizes; and unless such a one is offered to be proved, the evidence should be excludedand in this very case, if the offer had been to prove just what appeared on the trial, and no more, the court would, no doubt have excluded the evidence. It is difficult then to see how, “ the course of dealing in that branch of trade,” in the language of the charge, if an usage is not proved, can be taken into account by the jury, in determining what was the actual contract of the parties.

We think the charge in effect, is, that though the usage was not proved so as to make it evidence, tending to prove a sale upon an implied credit of six months, yet, still it was so far proved chat it might be weighed by the jury in determining what the contract was.

If the evidence does not prove a general usage, it cannot be received as an item in the testimony, as tending to show in connection with other testimony, the true contract of the parties; and we think the plaintiff was entitled to a charge, that the evidence of the usage was not such, as should affect him, as any proof that the parties intended the sale in question to be a credit sale. The case of Beirne v. Dowd, in the court of appeals in New York, 1 Selden 95, has a close analogy in principle with this case, and we think, that case was well decided.

If the evidence had showed that it had been the uniform and unvaried custom of this plaintiff himself, to sell his goods upon a credit of six months ; and that this was known to the defendant, at the time he purchased, it would have been quite another question, whether this should have gone to the jury, as evidence tending to prove an implied credit. The charge of the court in other respects, we see no objection to. The bills, and the testimony relative to the meaning of the words endorsed upon them-, was properly for the jury, and was submitted to them upon the correct principle.

We think there was evidence tending to prove that the plaintiff might have been present at the time of the sales by the clerk, and if so,, he could not complain that the clerk exceeded his authority. Besides, if not present, the clerk is to be regarded as> the general agent of the plaintiff, and if he exceeded Ms authority in selling upon a credit, the plaintiff must be bound by it, if neither the defendant nor his agent was chargeable with notice of the extent of the authority of the agent. For the reasons assigned, we must regard it as a mis-trial, and the judgment is reversed.