Williams v. Gridley

The plaintiffs were jobbers in bicycles, engaged in business in Springfield, Mass., under the firm name of P. A. Williams & Co. The defendant was engaged in the manufacture of bicycles at Syracuse, N. Y. The parties entered into a contract in writing, as follows:

“Syracuse, N. Y., Nov. 18th, 1902.

“H. M. Gridley, Syracuse, N. Y.—Dear Madame In addition to our order of Oct. 24th, 1902, you may enter our order for 3,000 (three thousand) of your Olive bicycles, model' No. 53, same to be stripped, or, in other words, less tires, pedals, saddles, handle bars, tools and bag, at'$8.75 each f. o. b. Syracuse, N. Y. Terms: Sight draft as soon as goods are ready for shipment, weekly, we to give you shipping directions for same.

“All wheels to be enameled Olive with red head, with Oifve transfer on all wheels. All to be filled by April 1st, or as soon as possible.

“All wheels to be baselined that are sent to our home office at Springfield, Mass.; you to purchase of us such parts as we may offer you at the market price to complete the above order, same to be paid by you on receipt of goods, we agreeing as far as possible to have the goods delivered F. O. B. Syracuse, N. Y., you to furnish us specifications of the parts required. Specifications on above order to be as follows, Frames to be “22” unless special orders are received for other sizes, same to be equipped with Fauber Special Hangers.

“Very respectfully yours, P. A. Williams & Co.

“Accepted by H. M. Gridley.”

The referee found that under and pursuant to said contract the defendant, prior to April, 1903, furnished and delivered to the plaintiff 469 wheels, and that the same were paid for in full prior to the commencement of this action, and that there still remained undelivered on April 1, 1903, 2,531 wheels, and that the defendant failed to deliver oi to offer to deliver said 2,531 wheels to the plaintiffs on or before April 1, 1903; that it was the understanding, agreement, and intention of the parties, at the time of the execution of said contract, that all the wheels contracted for were to be ready for delivery to the plaintiffs on or before April 1, 1903; that the market value of the wheels specified in said contract, as modified, f. o. b. cars at Syracuse, N. Y., on or about April 1, 1903, was $12 per wheel; that the plaintiffs, by reason of the

It appears that the phrase “as soon as possible” was not in the' contract when it was first prepared, but was inserted before execution. The plaintiffs, under objection and exception, were permitted to give parol evidence as to the purpose of the parties in introducing into the -contract the phrase “as soon as possible.” The plaintiffs’ witnesses testified that the reason for the insertion of this phrase was that the defendant objected to the contract as originally prepared, because she understood that the plaintiffs would not be required to take the wheels until April 1st,: whereas she wanted the plaintiffs to take them as soon as they were ready, and 'that upon her request the phrase was inserted. The defendant’s witnesses testified that the insertion of the phrase was made because she protested that, as prepared, the contract bound her to deliver the wheels by April 1, 1903, and that she might not be able to obtain the requisite material. The reception of this parol evidence was error. “The rule that parol evidence is inadmissible to add to or vary the terms of a written contract precludes evidence of the negotiation which preceded or conversations which accompanied the making of it in relation to the subject-matter thereof, unless necessary to explain ambiguous provisions, the meaning of which cannot be ascertained with certainty by an inspection of the written instrument.” Corse v. Peck et al., 102 N. Y. 513 , 7 N. E. 810 . There is no ambiguity in the provision of the contract as it was finally made to read:

“All to be filled by April 1st, or as soon as possible.”

This phrase has a definite legal meaning. The contract as originally prepared required payment by the plaintiffs “as fast as goods are ready for .shipment, weekly,” and gave the defendant until April 1st to fill the order. The additional phrase, “or as soon as possible,” did not make the contract indefinite as to the time of performance. “As soon as possible” meant that the defendant was to fill the order, within a reasonable time, under the circumstances. Church, C. J., Brink v. Hanover Fire Ins. Co., 80 N, Y. 112 ; Atwood v. Emory, 1. C. B. (N. S.) 110. Under the contract as it was completed thére were two periods of time fixed by its terms for filling the order. First, by April 1st; second, if not then, “as soon as possible.” In construing a written instrument for the purpose of ascertaining the intention of the parties, resort must be had to the instrument as a whole, and effect must be given to every part thereof, when it can be done without violence. Martin J., Sattler v. Hallock, 160 N. Y. 298 , 54 N. E. 667 , 46 L. R. A. 679 , 73 Am. St. Rep. 686 . If possible, effect must be given to every expression in a contract. Mason, J., Ward v. Whitney, 8 N. Y. 446 . The finding of the referee that the wheels contracted for were to be ready for delivery to the plaintiff on or before April 1, 1903, leaves the phrase “o'r' as soon g.s possible” wholly without force or effect. The finding constrúes the contract as if the .only provision thereof, as to the time of delivery was the phrase,'“All to be filled by April‘1st.” With that phra'se standing alone,

The judgment should be reversed. All concur, except HIS COCK, J., not voting.