De Cernea v. Cornell — 49 N.Y. St. Rep. 871

Majority

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Albert De Cernea, Resp’t, v. Russell R. Cornell et al., App’lts.

(City Court of New York, General Term,

Filed December 7, 1892.)

Headnote

Evidence—Custom.

Where the contract in question is clear, unequivocal and free from any ambiguity or doubt as to the meaning of the language used, evidence of an alleged custom of the trade, to modify the written agreement, is inadmissible.

Appeal from a judgment in favor of the plaintiff, entered upon a verdict of a jury, directed ata trial term.

The plaintiff, doing business in the city of Philadelphia, Pa., under the name of Albert DeCernea-& Co., entered into a written agreement with defendants, who constituted the firm of Cornell & Ward, in the city of Hew York.

The agreement was executed, on the part of the defendants, by their agent, E. P. Arnold, and was as follows:

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“Philadelphia, Dec. 28, 1891.

11 Messrs. Cornell & Ward, 150 Duane Street, New York City:

“ Dear Sirs—Please make and ship us at once 1,000 reams of 20x30 light bakers’ straw paper, 16 lbs. to 100 sheets; to be put up in 5 ream bundles. Price to be 19 cents per ream, f. o. b. Philadelphia, less 2 per -cent cash, ten da^s from delivery. Paper must be in every respect equal to sample submitted by your representative, Mr. B. P. Arnold.

“ Yours very truly,

“Albert DeCernea & Co.

(“ Dictated)

“Accepted by E. P. Arnold,

“ Representing Cornell & Ward.”

(Being plaintiff’s Ex. A.)

Defendants failed to deliver.

Plaintiff made demand, which was refused.

He, thereupon, went into open market and purchased the paper at thirty-eight cents per ream, a loss of $190 on the quantity named in the contract, at the price named therein.

The defendants, in their answer, admit substantially all the material allegations of the complaint; and, for a defense, by way of avoidance, allege that the execution of the contract was procured by fraud on the part of plaintiff, and further set up an alleged custom of trade, to modify the written agreement, and allege “ that said plaintiff fraudulently procured said Arnold to sign said writing, knowing that it did not contain said terms previously agreed upon, and with the intent to deceive.”

After the testimony was closed, plaintiff’s attorney asked the trial justice indirect a verdict for the plaintiff.

“The Court: The defendants seek to avoid a contract signed by them, and seek to avoid the responsibility on the ground that they did not read the contract. That is no defense. I, therefore, instruct you to find a verdict for the plaintiff for the sum of $190.00."

“ Defendants’ Attorney : I ask your honor to let the case go to the jury, on the question of fraud on the part of the plaintiff in procuring the defendants’ agent to sign that contract. Motion denied. Exception taken.”

Reeves & Todd, for app’lts; Edward Wells, Jr., for resp’t.

The making of the contract (Plff’s Ex. A) was admitted, and the defense set up was that the contract in question was drawn in reference to a certain trade custom, and that the said plaintiff fraudulently procured Arnold, the representative of the defendants, to sign the contract, knowing that it did not contain the terms previously agreed upon, and with the intent to deceive said Arnold.

The defendants sought to introduce evidence of the existence of such trade custom, which evidence was properly rejected by the trial justice.

The contract in question was clear, unequivocal and free from

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any ambiguity or doubt as to the meaning of the language therein used.

The size of the paper was therein stated to be 20x30 inches, thus clearly indicating the size of the paper ordered and required by the plaintiff, and there is no evidence of any conversation between the parties at the time of or prior to the signing of the contract, wherein paper of the size of 15x20 was mentioned or referred to.

There was no evidence of any fraud on the part of the plaintiff, in procuring Arnold’s signature to the contract, to be submitted to the jury, and no errors committed by the trial justice in the rulings made by him.

Judgment appealed from must be affirmed, with costs to the plaintiff and respondent.

Van Wyck and McCarthy, JJ., concur.