Milk v. Christie — 1 Hill & Den. 102

Majority

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Milk vs. Christie & Todd.

Headnote

A middle letter in one’s name is no part thereof, and a variance in this respect between a written contract as set forth in the pleadings, and that produced in evidence, is immaterial.

A contract to deliver 1000 “ bushels of good merchantable wheat,” &c.,is complied with by the vendor’s tendering a quantity of wheat, merchantable in fact, and equal in the aggregate to 1000 bushels statute weight, though it will not fill the statute measure of eight gallons to the bushel.

In general, the term bushel in a contract, calls for a quantity equal to eight gallons; but in respect to wheat, rye and Indian com, there is an exception; and in sales of these, the term bushel is satisfied by a quantity equal in weight alone to the statute requisition, unless the parties have otherwise agreed.

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Assumpsit, for not accepting a quantity of wheat, tried at the Tompkins circuit, February 12th, 1840, before Monell, C. Judge. The declaration contained a count upon the special contract, and also counts for goods sold and delivered.

The plaintiff gave in evidence a contract in Avriting, dated September 27, 1838, by which he contracted to sell to the defendants “One thousand bushels of good merchantable wheat, at the price of two dollars per bushel, to be delivered at said Christie & Todd’s mill, on or before the 15th day of October next, and cash payable on delivery of each load as it may be delivered.” The contract then declared what portion might be spring and what Avinter Avheat, and provided for settling any dispute as to such proportion. By these provisions, one-sixth of four hundred bushels might be spring wheat; and if any of the other six hundred bushels should be spring wheat, the latter was to go into the contract at fifteen shillings per bushel. The defendants agreed to accept and pay, on the above terms.

It was doubtful, on the face of the contract, whether the signature of the plaintiff was Wm. H. Milk or Wm. W. Milk. On its being offered in evidence, the defendants’ counsel objected for variance, because the contract was described in the declaration as signed Wm. H. Milk; but the objection Avas overruled. The plaintiff’s real name was Wm. W.

The plaintiff then gave evidence tending to prove a tender of the wheat, according to the terms of the contract, the wheat being in fact merchantable, and equal in the aggregate to 1000 bushels at the statute weight. But many particular bushels, taking it at eight gallons per bushel, the statute measure, would not reach the statute weight, of sixty pounds per bushel. The defendants expressed a willingness to receive all the wheat tendered, Avhich was clean and weighed sixty pounds to the bushel measure; but declined to receive any which Aveighed less, as not coming up to the contract.

The judge, at first, thought the contract to mean mer

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charitable wheat, weighing 1000 bushels in the aggregate; • and considerable evidence' was therefore received on the question of merchantable quality, independently of the measure for each particular bushel.

The defendants had received some of the wheat; and had not declined to receive any which weighed sixty pounds to the bushel.

The witnesses for the plaintiff, and defendants, expressed different opinions as to the meaning of the words merchantable wheat; those for the plaintiff saying, that weighing sixty pounds to the bushel was not essential; those for the defendants, that it was; several,r on both sides, being either millers, or otherwise experienced dealers in the article.

The judge charged the jury, that the plaintiff was bound to prove, that he had delivered, or offered to deliver, at the defendants’ mill, within the time stipulated, one thousand bushels of wheat of the kind and quality mentioned in the contract, and not of an inferior quality. “ That a bushel of good merchantable wheat, according to the revised statutes relative to the standard of weights and measures and the revisers’ note, shall contain at the mean pressure of the atmosphere, at the level of the sea, eighty pounds of distilled water, at its maximum density, which, by law, is equal to eight gallons, or thirty-two quarts; and that the bushel of wheat shall consist of sixty pounds. In other words, that good and merchantable wheat, must weigh sixty pounds to the bushel. He was of a different opinion before examining the statute, and the revisers’ note, supposing that if the purchaser got his sixty pounds of wheat, which was of a fair quality in other respects, it was of no consequence as to the bulk or measurement. But he now felt constrained to give the statute a different construction, and one which, if correct, would call for the intervention of the legislature; for not one crop in twenty in this state will now weigh sixty pounds per bushel. If the jury are of opinion that the wheat tendered was good merchantable wheat, within the construction given by the court, they will find a verdict for the plaintiff, for such damages as they find the differ

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enee to be between the price to be given and the cash price of such wheat on the day of completing the contract.” But if of a different opinion, they would Slid for the defendants.

The jury found for the plaintiff with $222,65 damages.

The defendants’ counsel moved for a new trial op a case.

S. Love, for the defendants.

C. Humphrey, for the plaintiff.

The middle letter was no part of the name; and was, therefore, properly rejected as surplusage, both in the pleadings and evidence. The name then stood in both William Milk. (Franklin v. Talmadge, 5 John. R. 84.) Again, the casé may be put in this way: William W. sues by the name of William H.; and the misnomer is not pleaded in abatement. It is then enough to see, that the true contract produced in evidence was in fact made with the real plaintiff, by whatever name. (Waterbury v. Mather, 16 Wendell, 611, 612 to 615, and the authorities there cited.)

Under the charge of the judge, the jury must be understood as having found that the wheat tendered was merchantable, within the sense of that word as understood by the plaintiff’s witnesses, at least; and if the construction of the statute, .contended for by the plaintiff’s counsel, be correct, we cannot interfere with the verdict. Whether the wheat ¡came within that construction, was a question fairly open for the jury upon the evidence, and was fairly submitted; and we must take it, on their finding, that the wheat was merchantable, unless the statute requires, upon such a .contract as the one before us, that merchantable wheat should combine, in each several bushel, both the measure and weight required - by the statute. The jury either repudiated this construction, thus, if the defendants

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be right, finding against law; or they adopted it, and thus found against the weight of the evidence.

The defendants acted throughout upon a very narrow and inconvenient, not to say an unjust construction of the contract, obviously with the view to get rid of what turned out to be a hard bargain. Yet they are entitled to be discharged from the contract, if the statute be so strict as the learned judge supposed. The provisions to which he referred are 1 R. S. 618, § 19, and Id. 621, § 40, 2d ed. Section 19 declares, that “ The bushel shall contain at the mean pressure: of the atmosphere, at the level of the sea, eighty pounds of distilled water, at its maximum density.” Section 40, that “ Whenever wheat, rye or Indian coril, shall be sold by the bushel, and no special agreement as to the measurement or weight thereof shall be made by the parties, the bushel shall consist of sixty pounds of wheat, and of fifty-six pounds of rye or Indian corn.” The last section, standing alone, is ob • viously satisfied by mere weight. Wheat, otherwise merchantable, weighing sixty pounds, makes one bushel, and a great • er or less quantity makes bushels or parts of bushels, while rye and corn would be weighed, calling fifty-six pounds of either, one bushel. Such is the ordinary course among dealers. But it 'is supposed that the last section must be read with the previous, 19th; thus combining precise measure, as well as weight; in other words, that to make a bushel, it must not only be of the prescribed weight required by the 40th section, but must also precisely fill the measure required by the 19th. We think otherwise. The 19th section, the 14th, and others of a similar character, in the statute concerning weights and measures, (1 R. S. 616, 2d ed.) relate to the size or capacity of standard measures, deposited in the office of state. These are to be copied, distributed and authenticated, for the use of such as deal in measure simply. A contract expressing measure would, accordingly, mean the statute capacity; not weight. But the 40th section comes in and makes wheat, rye and corn exceptions. ' As to these, though the sale be expressed in bushels, a term for dry

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measure, it shall be construed to mean weight simply. We are referred, by the defendants’ counsel, to the remarks of Professor Renwick, as adopted 'by the revisers. ( 3 R. 8 . 545, 2d ed. pi. 4.) But nothing there said is calculated to raise the construction on the statute, for which the defendants contend. He is there treating of dry measure. His remarks regard capacity, not weight. No reference is made to the provision in the 40th section, by which the word bushel, in the peculiar case of wheat, rye and corn, is made prima facie a term of weight, and not of measure.

On the whole, we cannot bring ourselves to doubt, that the legislature intended, by the 40th section, simply to enact what had long been the universal practice of dealers, in the peculiar kind of grain there mentioned, under contracts of sale by the bushel. It was thought very inconvenient to make the word bushel, in contracts between them, conform to the general meaning affixed to it as a mere measure of capacity. The section was passed in affirmance, not in reversal of commercial language, as every merchant, probably every agriculturist, in the state, have long understood it. Both section 19, and the recommendation of Professor Renwick, standing in the form of an unqualified statute, would have departed from common parlance in respect to three kinds of grain. Section 40 introduced the proper qualification.

We are of opinion that the motion for a new trial must be denied.

New trial denied.