Booth Bros. & Hurricane Isle Granite Co. v. Baird

It is conceded that, in the absence of evidence establishing that the term “ superficial yard,” as used in the contract, has by long-established usage come to mean the measurement of superficial yards as made by the engineer of the city of Brooklyn in chai’ge of the work, there could have been no recovery for the space occupied by railroad tracks and manholes.

"Whether the referee was right in deciding that the contract should be read as if it had been written, “Por all blocks used by you in the city of Brooklyn, one dollar and sixty-five cents., per superficial yard, to be determined by the measurements made by the engineer of the city of Brooklyn in charge of the work,” we shall consider.

It has long been the law of this State that usuage, in relation to matters embraced in a contract, 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, and so far established and known to the parties that it may be supposed the contract was made in reference thereto, is deemed to form part of it, and may be shown in order to enable the court to declare what the contract expressed to the parties. (Walls v. Bailey, 49 N. Y. 464 ; Newhall v. Appleton, 114 id. 140; Smith v. Clews, Id. 190.)

In Walls’ case, in which Folger, J., delivered a well-considered opinion, reviewing at length the authorities bearing on the question, a contractor, who had agreed to plaster defendant’s building at a certain price per yard, made no deduction in his bill for cornices, baseboards, or openings for doors and windows.

On the trial it was proved that it was the uniform and well-settled custom of plasterers in Buffalo to so measure. It was held that the evidence was proper, and raised a presumption that defendant contracted with reference to that usage.

The judgment was reversed, however, because the defendant was not allowed to testify that he did not have knowledge of the custom claimed, and this was because the plaintiff had established a local usage as distinguished from one that is general.

The distinction pointed out after full discussion, was, that there are usages so general, and so universally received and acted upon, that they have become a part of the common law, and no one can

It was the local usage in Brooklyn that the plaintiffs attempted to establish. It is not suggested by the testimony that the usage claimed is general. Indeed, it affirmatively appears that such custom does not prevail in the city of New York. These deductions, such as the defendants contend for here, are required.

The defendant Hart testified that down to the time of the making of the contract he never knew or. heard of any such custom, usage or practice as that contended for by the plaintiffs. His testimony brought him within the ruling of Walls’ case, but as he was a party to the action the referee was not bound by his testimony, although not directly contradicted.

"While he made no finding upon the subject, and may have treated this case as one where the general rule as to the effect of usage upon parties applies rather than the restricted rule applicable to a special locality, we must, nevertheless, assume that lie has found as a fact that he did know of it. And so assuming, we pass it without special consideration, because we think the evidence fails to show that the term “superficial yard,” as between contractors and producers of granite, has by local usage become so firmly established to mean “ superficial yards, as determined by the measurements of the engineer in charge of the city of Brooklyn,” as to be engrafted upon all contracts containing it on the assumption that the parties contracted with reference to it.

A brief analysis of the testimony will suffice to justify our conclusion. The first witness called by the plaintiffs on the question of usage was John Pierce, who testified that he had had considerable experience'in selling paving blocks, and that he had never sold them in any other way than on the engineer’s measurement. But there is nothing in his testimony which shows that the words “ superficial yard,” as used in this contract, had a definite and well-established meaning in the trade,- such as is claimed for them by the plaintiffs. The inference to be drawn from his testimony seems to be otherwise, for he stated that he usually sold the blocks by written contract, and that while he received pay for them on the basis of the engi

Charles S. Ferguson, the assistant secretary of one of the plaintiffs, did testify that there was a custom among granite block sellers and layers in the cities of Brooklyn and New York in relation to the method of measurement, when blocks are sold by the superficial or square yard, and that such custom is to take the measurements filed by the city engineer. His testimony, therefore, may be said in a general way to fairly meet the situation, although he -failed to state a single instance where a written contract, in which the term “ superficial yard ” was used, was construed by the parties to mean that which he says was the established custom.

William Kelly, one of the defendants not appealing, also testified in a general way that it was the custom to make settlement according to engineers’ measurements.

He does not suggest an instance where a written contract providing that payment should be at a certain price per superficial yard was construed by the parties to mean superficial yards as determined by the measurement of the city engineer. Indeed, he testifies that prior to the making of the contract in question he had had but one contract where railroad tracks ran along the length of the pavement, and that was on Front street in Brooklyn. With reference to that contract he testifies: “ It was agreed that they were to be paid by engineers’ estimates. I made an agreement and signed it, to pay Booth Brothers that way, and I paid them by engineers’ measurements.” Had a similar agreement been made here, there could have been no such question as is now presented! While his testi

The defendant John O. Smith also testified that he made payments to the plaintiffs, under this contract, according to the engineer’s measurements, but he admits that he purchased of the plaintiffs all of the blocks which he used during the six years last past in Brooklyn by the thousand.

His personal experience touching the established local meaning-of the term “ superficial yard ” is confined to this contract, and,, therefore, does not tend to establish that it had a meaning other and. different from that given to it by the dictionary prior to the making-of this contract. No other witnesses were called by the plaintiffs-upon this branch of the case.

Their testimony does not justify a finding that at the time of the making of the contract the local usage of the term “ superficial yard ” was firmly established in the granite trade to mean something different from that which the term ordinarily imports.

"When, however, this testimony comes to be considered in connection with the evidence introduced by the defendants, it will appear that there never was any such established custom. It is testified to, and not disputed, that until 1885 it was the custom to purchase blocks by the thousand. That custom has been continued by many, but some of the contractors have from time to time made contracts for blocks to be paid for by the yard. "Whatever of custom there is, therefore, has grown up during a period of less than six years-immediately preceding the making of this contract. One of the witnesses produced by the defendants to prove that there was no such custom, was Yan Brunt Bergen, who for many years had the general superintendence and charge on behalf of the city of all the paving done for it. It is fair to assume that his position was-such that any custom between contractors and sellers of granite would be more likely to come to him than to the average businessman.

He testified that the fact is that the city, in paying the contractor, measures in the railroad iron. And it is so understood when the contracts are let, and the bids are made accordingly. But he

He gave an instance where the city had purchased granite blocks of one of these plaintiffs within two years of the time of the making of the contract in controversy.

The stone was purchased by the square yard of pavement on the requisition of the commissioner. One of the plaintiffs talked with the witness about making allowance for the space occupied by the railroad tracks before requisition was made, but the representatives-of the city refused to make any such allowance, and the result was-a requisition which was an equivalent to the contract in question. It-was subsequently carried out, the expression being treated as meaning precisely what would be its ordinary dictionary meaning. This-transaction of itself affords the most satisfactory proof that Booth Brothers, who are plaintiffs here, and the superintendent of paving' in the city of Brooklyn, did not know of the existence of any such, custom as the plaintiffs claim on this trial. One of the earliest-departures from the plan of buying blocks by the thousand was-through a contract between the Rockport Company, one of these-plaintiffs, and Dady and Oox, contractors. This contract was spoken of in considering the testimony of Pierce, the president of the company. We refer to the subject again because of the testimony of Dady and Cox. Cox points out that the real difference between Pierce and his firm was, that they refused to pay for the space taken by the railroad iron, while Pierce demanded payment for railroad-iron on engineer’s measurements.

But, finally, he says Pierce agreed to accept actual measurement' and a settlement was had on that basis. Dady testifies that after the-settlement was made, Pierce said that hereafter he would have a provision for engineers’ measurements inserted in their contracts. That-statement Pierce did not deny, nor did he attempt to make it appear' that he ever caused to be executed a contract other than the one in question, in which it was not provided that payments should be made according to the engineer’s measurements if the parties-had so agreed.

Thomas Monahan, who is largely engaged in paving streets with Belgian block, cobble stone and other material, says that he usually

John H. O’Rourke had but one contract by which he agreed to pay for blocks by the yard prior to June, 1889 ; up to that time he bought mostly by the thousand. In answer to an inquiry whether the engineer’s measurements are usually specified in contracts or agreements, whether in writing or verbal, he answered: “ I .can only speak for myself; when I made a contract with Hr. Pierce (president of one of the plaintiffs) it was always agreed virtually between us that it was engineer’s measurement; * * * that is all the custom there is about it, the agreement that I make; I think that is all.”

Edward J. McKeever testified that the firm of which he was a member purchased blocks of one of the plaintiffs by the yard and paid for them by actual measurements. This the plaintiffs felt •called upon to answer in rebuttal, and they ju’oduced the contract by which the parties agreed that the settlement should be upon the basis of engineer’s measurements, but if the engineer’s measurements should include space occupied by rails that such space should be •deducted and allowed on the final payment. This only emphasizes what was undoubtedly the fact, that in some cases it was agreed in the first instance that the engineer’s estimate should be accepted as final without any deduction for rails or manholes, while in others it was agreed that there should be deductions.

"We have already referred to the testimony of the defendant Hart to the effect that he never knew or heard of any such custom or •usage as that claimed by the plaintiffs and found by the referee ; .and he refers specially to a contract made between him and the plaintiff, the New York Granite Company, in which the price was fixed by the company as follows : One dollar and seventy-five cents per square yard on the engineer’s measurement “ when laid in the street.” A reply was prepared by its president (Pierce), and by it Hart was made to say, “ I hereby accept your proposition ” at so much per square yard “ on engineer’s measurement when laid in the .street.”

In this particular case, therefore, it will be observed that he was .careful to’ have engineer’s measurements incorporated twice, evi~

The testimony in this voluminous record would permit of a more extended discussion of the evidence bearing on this subject, buf our purpose has been, as briefly as possible, to make it deal that there is nothing in this testimony to support plaintiffs'' claim that by an established custom the term “ superficial yards” has come to mean superficial yards according to the city engineer’s measurements. If the evidence may be said firmly to establish anything about the question, it is that sometimes the parties agree to include rails and manholes in the measurements of stone and pay for the space they occupy as such, and in other cases they do not. "Whatever they agree to, if the contract is reduced to writing, finds expression in it. The term “ superficial yard ” is not used in one case to mean the engineer’s measurements without deduction for rails and manholes, and in the other that only actual measurement of stone shall be paid for.

According to the testimony of Engineer Dwyer, whether this contract shall be read as its language imports, or as the plaintiffs claim the evidence shows it should be read, involves to one of these appellants something over $10,000, and justifies him in insisting that the plaintiffs shall be compelled to establish it before he shall be deprived of the right apparently secured to him by the provisions of the contract. We agree with him that the. testimony contained in this record does not establish the custom which has been claimed to exist.

The judgment should be reversed as to the appellants Hart and Baird, and a new trial granted, with costs to the appellants to abide the event.

Van Brunt, P. J., and Follett, J., concurred.

Judgment reversed as to appellants Hart and Baird, and new trial ordered, with costs to appellants to abide event.