Iasigi v. Rosenstein — 48 N.Y. St. Rep. 751

Majority

p. 751

Joseph A. Iasigi, App’lt, v. Clara Rosenstein, Resp’t.

(Supreme Court, General Term, First Department,

Filed October 20, 1892.)

Headnote

1. Contract—Construction—Evidence of custom.

By a contract for the sale of seed it was to he sent by March steamer shipment from Turkey, and payment was to be made a certain time after delivery on dock in New York, goods to be removed on arrival of steamer, and the steamer’s name was given. In an action for refusal to receive the goods on their arrival upon another steamer, Held, that the contract was not ambiguous, but provided for a direct shipment from Turkey to New York, and that evidence of a custom of the trade to transship such goods in England, and that no vessels came direct from Turkey to New York, was inadmissible to vary the terms of the contract.

3. Same.

The fact of transshipment to another vessel than that named in the contract is not unimportant, and plaintiff is not entitled to recover for a rejection of the goods, although the answer does not allege that the change was of any consequence and it is conceded that in other respects the seed tendered complied fully with the description in the contract.

p. 752

Appeal from judgment dismissing the complaint.

Action for breach of contract for the purchase of canary seed to be shipped from Turkey by the steamer Aleppo.

Frederic R. Coudert and David Keane, for app’lt; H. Aplington, for resp’t.

No-order having been entered denying a, motion for a new trial, and no request having been made by the plaintiff to go to the jury, no question of fact is presented for review ; and the only exceptions before the court are those taken by plaintiff to the rulings refusing to admit evidence with respect to the custom prevailing in regard to the shipment of goods from Turkey to New York. The parties to this action entered into three contracts of substantially the .same tenor, but of different dates, for the purchase of 1,100 bags of Smyrna ■canary seed, to be shipped in March, 1887, on the steamer Aleppo from Turkey. The ground upon which the seed was rejected, and on which at the trial the complaint was dismissed, was the insistence of defendant that the contracts required a -direct shipment from Turkey to New York on the steamer Aleppo, while the evidence shows that, though the seed was shipped from Bodosto in Turkey on the steamer Aleppo, the latter conveyed the cargo no further than Liverpool, where the seed contracted for was reshipped, and arrived in New York on the steamer Aurania. The question, therefore, is whether a contract such as was here made between the parties, which provided that the seed was “ to arrive, March shipment, per steamer Aleppo from Bodosto,” has been fulfilled by a delivery in the city of New York by the steamer Aurania. It is insisted by appellant that the contracts do not expressly say that the shipment should be to New York on the Aleppo, but merely on the Aleppo from Turkey; that the intention of the parties was that the shipment should be made from Turkey •on the Aleppo, but not that the Aleppo should come to New York, the parties having known that such was not the custom or usage. To establish a custom and usage tending to show that there was no direct steamer coming from Turkey to New York, and that the invariable custom and usage was to transship at Liverpool, the plaintiff offered evidence which, upon objection, was excluded ; and the exception to the exclusion of such evidence presents the questions raised by this appeal.

It must be regarded as settled law that, where contracts are plain, unambiguous, and easily understood, no proof of custom or ■evidence extrinsic of the contracts themselves can be res irted to, it being the duty of the court to give to the language e nployed its ordinary and reasonable meaning Another well-r ^ognized rule of construction is that no evidence of custom o usage is competent to vary or contradict the express terms of a written contract; resort to custom and usage being permissible only where it is necessary to supply an. omission or annex an incident entirely consistent with the written terms of the contract. As ■stated by Starkie on Evidence, 710: “In many instances evidence

p. 753

of custom and usage is admissible for the purpose of annexing'incidents to the terms of a written instrument concerning which the instrument is silent, although if any condition or term in the contract is necessarily repugnant to or inconsistent with the custom, the latter is excluded.” It is true that merchants contract ordinarily with reference to "established customs and usages in their particular business; and where the contract is not in writing, or, if in writing, an ambiguity exists therein, or the contract is silent as to some incident connected therewith, it is competent to have resort to custom or usage for the purpose of showing what the contract made between the parties was. Notwithstanding, however, the existence of customs and usages in a trade or business, it is perfectly competent for the parties to enter into a written contract whose terms are inconsistent with such usages. And when the terms are clear and unambiguous, and, by giving to the language employed its ordinary and well-defined meaning, but one construction is open, it is clear that the terms of the agreement cannot be impaired or destroyed by evidence extrinsic of the contract relating to custom or usage.

We think that the contract here, fairly construed, regard being had to the language used, was one by which the plaintiff contracted to sell the seed to arrive by the steamer Aleppo from Turkey to New York; and that evidence tending to show a custom of the trade, or that vessels never came directly from Turkey to New York, would be permitting the plaintiff to interpolate into the contract terms which would change the construction that the language used would require us to give to it. It is insisted by appellant that 'whether the seed came from Turkey directly by the Aleppo, or was transshipped at Liverpool to another vessel, is unimportant, and should not have attached to it weight sufficient to justify a rejection by defendant of the contract Our attention is called to the fact that the answer does not allege that this circumstance of the change is of any consequence, and that it does not state any facts to show that it was of any importance, pecuniarily or otherwise, to the defendant; it being conceded, moreover, that in all other respects the seed tendered and rejected complied fully with the description contained in the express terms of the contract. We are not at liberty, however, to determine the relative importance of terms in a contract, nor have we the power to reject any provision of a contract which the parties themselves have inserted, and which they may have deemed important; nor in an action such as this was it necessary for the defendant to show in what respect he was injured by such change.

The plaintiff brought this action to recover-damages for a breach of the contract, and before a recovery could be had in such an action it was essential for him to show that he had fully complied with all the terms and conditions of the contract to be performed on his part. The question, however, as to whether the manner of shipment is important has been passed upon adversely to the position assumed by the appellant in m'any cases, and it has been held that the mode of shipment is not an immaterial

p. 754

or unimportant accessory, “affecting only the method of performance,. but is of the substance of the agreement, because identifying its subject-matter.” Bidwell v. Overton, 35 St. Rep., 574 . See, also, Benj. Sales, §§ 588, 600; Hill v. Blake, 97 N. Y., 216 ; Welsh v. Gossler, 89 id., 540. Here the means of identifying the seed the defendant agreed to purchase was the arrival of the Aleppo with such seed on board; and seed, even of the same quantity and quality, brought to Hew York by any other steamer than the Aleppo, would certainly not be the seed the defendant contracted to purchase from the plaintiff, the words as to the mode of shipment being part of the description of the subject-matter. Benj. Sales, § 588, says: “ In sales of goods to arrive it’is quite a usual condition that the vendor shall give notice of the name of the ship on which the goods are expected, as soon as it becomes known to him, and a strict compliance with the promise is a condition precedent to his right to enforce the .contract.”' Certainly the failure to give the name of the vessel in a case where the goods in all other respects answer the description of á contract is no more important than a provision in the contract relating to the mode of shipment. If we were at liberty to determine their relative importance, we should say that more weight was to be attached to the mode of shipment than to the name of the vessel; because, while both were intended for the purpose of identifying the property, the mode of shipment might have, in case of loss, an important bearing upon the question of the insurance upon the cargo, and a change in the mode of shipment might result in a forfeiture of the policy. In this case the name of the vessel having been ascertained to be the Aleppo, and having in the last contract expressly agreed to a shipment from Turkey by - the Aleppo, had the defendant taken out a policy of insurance covering any interest which he might have in the seed to arrive, under the usual terms and conditions of such a policy, unless arrangements with the insurance company were made for transshipment at Liverpool, the policy could not have been enforced if a loss had occurred to the goods during their transit from Liverpool to Hew York. Apart, therefore, from the method of shipment being a necessary part of the description, we have suggested one way in which we think the defendant might have been injuriously affected, and in respect to which the method of shipment would be ' an important term or provision of the contract It is true that under the contract here, providing, “no arrival, no sale,” the defendant might have no insurable interest We are discussing, however, the bearing which the presence of such a condition, in the absence of express stipulations in the contract to the contrary, would have upon the rights of the parties. It is unnecessary, however, to further discuss the question, it being sufficient for this appeal to say that a fair and reasonable construction of the contracts having required a direct shipment from Turkey to Hew York on the Aleppo, it could only be fulfilled by the arrival of such vessel in Hew York. Such construction being clearly and plainly indicated by the language used in the contracts, it was not competent to resort to evi

Concurrence

p. 755

dence of custom or usage to vary their terms. We think, therefore, that the learned trial judge properly excluded such evidence of custom, and that, in the absence of such evidence, the plaintiff having failed to show a compliance with the term in regard to the mode of shipment from Turkey to Mew York, the complaint was properly dismissed. The judgment should, therefore, be affirmed, with costs.

Van Brunt, P. J., concurs.

I concur, for the reason that the fair construction of the contracts is that the goods were to be sent from Turkey to Mew York by the steamer Aleppo. In the first and second contracts there is a fair implication that the parties contracted for a continuous transit by one vessel. The name of the steamer was to be subsequently reported, and the contracts provided for removal of the goods from the dock on arrival of that steamer. In the third contract the steamer is named, and the same provision for removal of the goods on arrival of the steamer is contained in it. If there were such a usage as the plaintiff claims existed, the terms of the contract seem to imply that the parties specially agreed without reference to it.