Newhall v. Appleton — 22 N.Y. St. Rep. 670

Majority

p. 670

George T. Newhall, Resp’t, v. William H. Appleton et al., App’lts.^[1]

(Court of Appeals, Second Division,

Filed April 16, 1889.)

Headnote

"1. Contract—Evidence of usage—When admissible.

In an action brought to recover upon a contract for obtaining subscriptions to certain publications, the defendants offered evidence to show that the words in the contract sued on, “ fifteen dollars an order for each and every order obtained,” in the subscription book business had a definite and well established meaning. Held, that the evidence was admissible as tending to show what such meaning was.

2. Same—Evidence to show intention admissible.

Evidence of custom is admissible not to change or varya contract made, but to ascertain with greater certainty what was the intention of the parties at the time of its making.

Appeal from a judgment of the general term of the superior court of the city and county of New York, which affirmed a judgment for money in favor of the plaintiff, -entered upon the report of a referee.

Edward Winslow Paige, for app’lts; William W. Badger, for resp’t.

—This action was brought to recover upon a contract for obtaining subscriptions to certain publications known as the “American Encyclopedia,” “Picturesque Europe” and “Turner’s Gallery.” The complaint contained •averment of a contract by defendants to pay the plaintiff “fifteen dollars for each and every order he obtained for said encyclopedia, and four dollars for each and every order •he obtained for said other publications.” The answer admitted a contract to pay the plaintiff those sums upon the orders, under which five volumes of the encyclopedia, and ten parts of each of the other publications, respectively, had been taken and paid for by the subscriber, and not otherwise, and further alleged payment of the amount due under the contract.

Upon the trial the plaintiff gave evidence that an oral contract, as averred in the complaint, had been -made between him and defendants.

The defendants, thereupon, offered evidence to show that in the subscription-book business, the words used in the contract, had a definite and well established meaning, and that meaning was as set forth in the answer. That the words “ fifteen dollars an order for each and every order ob

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tained for the encyclopedia,” meant, and are well understood in the subscription-book business to mean, fifteen, dollars an order for each and every order obtained for the encyclopedia, under which, five volumes have been taken, and paid for by the subscriber, and not otherwise. While four dollars an order for the other publications meant, four dollars an order, under which ten parts each, respectively, had been taken and paid for by the subscriber, and not otherwise. The learned referee refused to receive the evidence, and thus rendered it impossible for the defendants to successfully present the only issue tendered by their answer. We think this was error.

“ Every legal contract is to be interpreted in accordance with the intention of the parties making it. And usage, when it is reasonable, uniform, well settled, not in opposition to fixed rules of law, not in contradiction of the express terms of the contract, is deemed to form a part of the contract, and to enter into the intention of the parties, when it is so far established, and so far known to the parties, that it must be supposed that their contract was made in reference to it.” Walls et al. v. Bailey 49 N. Y., 464 -9, citing Starkie on Evidence, 637, 710; 1 Greenl. on Evidence, §§ 292-294; Broom Leg. Max., 882, 889, 890; 2 Parsons on Cont., 541. And evidence is always admissible to explain the meaning which usage has given to words or terms, as used in any particular trade or business, as a means of enabling the court to declare what the language of the contract did actually express to the parties. Wharton on Ev., § 962; Dana v. Fiedler, 12 N. Y., 40 ; Hinton v. Locke, 5 Hill, 437 . The principle stated in the authorities cited,, authorized the introduction of evidence, on the part of the defendants, tending to show that, by the usage or custom of the subscription-book business, the words used ih the-contract, had a well defined meaning, which was understood by both parties to the contract, and what such meaning was. The evidence of custom was admissible, not to change or vary the contract made, but to ascertain with greater certainty, what was the intention of the parties at the time of its making.

The question now decided, was not directly passed upon by this court on the former appeal. The evidence erroneously rejected on the trial now under review, was admitted on the first trial, and the defendants succeeded upon the issue.

The plaintiff appealed, and a reversal was had, not upon the issue as presented and passed upon, but because the trial court improperly admitted the books of the defendants, for the purpose of showing thc'r (ransactions with other agents.

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The judgment must be reversed, and a new trial granted; costs to abide event.

All concur.