& TRIAL (§ 252*)—INSTRUCTIONS-CONFORMITY were to pay for it 17 cents per pound and no TO EVIDENCE.

In an action for a balance due for butter sold, where it was agreed that a new contract was made by the parties which superseded the former one for the sale of the butter, the court properly refused charges relating to telegrams and letters which passed before the closing of the original contract.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 604; Dec. Dig. § 252.*]

Appeal from Superior Court, New Haven County; William S. Case, Judge.

Action by the Floral Creamery Company against Dillon & Douglass. From a judgment for plaintiff, defendants appeal. firmed.

Af

Charles S. Hamilton, for appellants. Richard H. Tyner and Louis M. Rosenbluth, for appellee.

more, free from all charges against them for transportation, and that Black assented thereto and thereupon gave their manager the delivery check for the goods. They also claimed that, if there was any mistake or misunderstanding by Black as to the plaintiffs' directions, they must bear the loss from any such mistake or misunderstanding.

The court at the request of the defendants instructed the jury that the plaintiffs by their telegram constituted Black their agent to negotiate with the defendants for the ultimate delivery of the butter, and that they were bound by any act or representation of Black to the defendants or by any condition which he may have acceded to in turning over the car load of butter, and that if the defendants accepted the goods on condition that they should pay 17 cents and no more, free from all charges against them for delivery of the goods, the verdict should be for the defendants; and that the plaintiffs must bear any loss resulting to them from any mistake or misunderstanding of Black with respect to their directions. Under this instruction, which certainly was very favorable to the defendants, the verdict must have been for them had the jury found that any such agreement as claimed by them was made between Black and their manager. As the verdict was for the plaintiff, the jury must have found that no such arrangement was made.

THAYER, J. A car load of butter was shipped from the plaintiff's creamery in Kansas to the defendants in New Haven under an agreement that it should be fancy fresh creamery butter, and that the defendants should pay for the same the outside New York quotations net on the day of arrival delivered to the defendants. The defendants advanced $3,000 towards the payment for the butter before its arrival in New Haven upon a draft accompanied by the bill of lading sent through the banks; the Kansas bank through which it was forwarded having agreed to indemnify the defendants. Upon the payment of the draft the bill of lad- The court instructed the jury, in substance, ing was assigned to the defendants. When as requested by the plaintiffs, that, if they the car arrived the butter was inspected by found from the evidence that the terms and the defendants, who refused to receive it, conditions of the contract were contained in claiming that it was not fresh creamery but- the telegram, they should find the amount ter, but a different and inferior article. The due to the plaintiffs for the butter at 17 plaintiffs had notice of this through the de- cents per pound for the number of pounds fendants and the railroad company. There- which were actually delivered to the defendupon some negotiations by telegraph took ants, and from the sum so found, if it should place, and finally the plaintiffs telegraphed exceed the admitted payments, deduct those the railroad freight agent, Mr. Black, at New payments, and the verdict should be for the Haven: "Let Dillon & Douglass have butter amount of such balance with interest. The at seventeen cents net to us or reconsign to defendants object to the first part of this Moffit Wentworth & Co., Phila." This tele- instruction upon the ground that the telegram, except the portion relating to the re- gram was not sent to the defendants, and consignment of the butter, was shown to the that it was only claimed that Black comdefendants, and they thereupon accepted and municated its contents to the defendants, and received the butter paying the transportation that they orally made the bargain with refcharges due thereon to the railroad company. erence to the butter. The complaint alleges There seems to have been no dispute between that the defendants accepted the butter unthe parties as to the foregoing facts. The der an offer of the plaintiffs communicated question in dispute between them was wheth- to them by Black, agreeing to pay 17 cents er the defendants could properly deduct the per pound net to the plaintiffs. By order of amount of the transportation charges paid court the plaintiffs made the telegram a part by them from the price of the butter at 17 of the complaint as showing the offer which cents per pound. The defendants claimed was made. The complaint thus stated, subthat the telegram referred to made Black stantially, that the defendants accepted the the plaintiffs' agent so that they were bound butter upon the terms and conditions containby his acts, and that at the time of the ac- ed in the telegram. If this was true, the ceptance of the butter by the defendants' telegram contained the terms and conditions manager he stated to Black that it was ac- of the contract. The plaintiffs claimed to cepted upon condition that the defendants have proved that Black submitted the teleFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

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gram to the defendants, and that they accept- | assignment must be based upon the ground ed the butter upon the terms and conditions that such evidence was improperly admitted. stated in it. The terms of the offer so sub- If the instruction was improper for the reamitted became the terms of the contract, if son assigned, it was harmless, because the the offer was accepted, in the same manner meaning of the words in the trade which that they would had the telegram been ad- was claimed to be proved was their ordidressed and sent directly to the defendants, nary meaning applied to the circumstances in or had Black orally repeated the offer con- which they were used in the present case. tained in it and the defendants had then accepted the offer. The court instructed the jury, in the portions of the charge referred to, in accordance with the claims of the parties, that, if it should be found that the contract under which the butter was accepted was that which the defendants claimed was made, the verdict should be for them, but that, if the telegram expressed the terms of the contract, the jury should find for the plaintiffs. The charge was not open to the objection which is urged against it.

The jury were told in the charge that it was agreed that the original contract for the disposal of the butter was rescinded after the car reached New Haven, and that the question in dispute between the parties was to be determined by the settlement by the jury of the terms of the agreement upon which the car was turned over to the defendants. The defendants object to this part of the charge upon the ground that it was not agreed as stated therein, that the fact as stated was claimed by the plaintiff, but that the defendants claimed that that part of the original contract which provided that the butter was to be delivered in New Haven net to the defendants still remained in force. No such claim appears either in the court's statement of the defendants' claim or in their requests to charge. On the contrary, it appears therein that they claimed that an entirely now agreement was made between the parties by their manager and the plaintiffs' agent Black, by which the defendants were to pay 17 cents per pound less freight and transportation charges for the butter, and that this was to be found by the jury from what took place between the parties at the time of the acceptance, or, if not from that, then from the telegram in question taken in connection with all the other telegrams and letters which had passed between the parties. The statement of the court to which objection is taken was in accordance with the facts as far as appears by the record.

There was evidence offered and admitted against the defendants' objection tending to prove the value of the butter. The answer contained a general denial of the allegations of the complaint. If the plaintiffs failed to prove that the butter was to be paid for at the agreed price alleged, they might recover what the butter was reasonably worth. Brewster v. Aldrich, 70 Conn. 51, 54, 38 Atl. 894; Shmilovitz v. Bares, 75 Conn. 714, 716, 55 Atl. 560. The evidence therefore might, under the pleadings, become material, and the court properly refused to exclude it as immaterial.

Some time before the trial, the testimony of several witnesses was taken by the plaintiff by deposition in Kansas. Among the questions propounded to them were those to which reference has been made relating to the meaning in the butter trade of the words "net to us." There was no cross-examination of these witnesses; but when the depositions came to be read in court various objections were made to these questions, mostly upon the ground that they were improper in form and that a proper foundation for asking them had not been laid. These objections were overruled. All objections not going to the substance of the testimony should have been taken at the time the testimony was given so that informalities could be corrected. Butte Hardware Co. v. Wallace, 59 Conn. 336, 341, 22 Atl. 330; Hennessy v. Met. Life Ins. Co., 74 Conn. 699, 708, 52 Atl. 490. This rule sustains most, if not all, of the rulings upon objections to this testimony; but if otherwise, the defendants were not harmed by its admission because the meaning of the words in the butter trade, as testified by these witnesses, is the meaning of the words taken in their ordinary sense under the circumstances to which they applied. The butter had been shipped to the defendants to be paid for at a much higher price than was fixed by the telegram. They had refused to take it. It was held by the common carrier who had a lien upon it for the transportation charges. These must be paid by the party holding the bill of lading before he could obtain the goods. The defendants had made a large advancement on the goods. They had the bill of lading. The parties had not agreed concerning the disposition and settlement for the goods. The carrier desired to have the goods removed. The plaintiffs sent the telegram in question to the freight agent telling

Evidence was offered by the plaintiffs to show that the words "net to us," used in the telegram which is part of the complaint, have a special meaning in the butter trade, and the jury were instructed as to their duties should they find that by the general usage of the trade the words had such meaning. This is assigned for error upon the ground that there was no evidence to prove that there was any custom which fixed any peculiar meaning to the words. As the evi-him to let the defendants have the goods at dence bearing upon the question was objected to, and its admission is made the subject

17 cents per pound, "net to us," or to reship them to other parties. Under the circum

were to be sent to other parties unless the 13. EVIDENCE (§ 450*)—ParROL EVIDENCE-AMdefendants took them at the price named BIGUITIES. without deductions. Net means "free from land or in the reference therein to other writ Ambiguities in a written contract to sell charges or deductions" (Webster's Diction-ings sought to be identified as those to which ary); “obtained after deducting all expenses" the contract refers may be explained by parol (Standard Dictionary). "Net to us" in the evidence. telegram, under the circumstances under which it was sent, which were known to all parties, could mean only that the price given was to be 17 cents per pound free from all charges and deductions. This, in substance, is what the witnesses said was their meaning in the trade.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

amended their complaint by alleging that Lewis, after the preparation of said memorandum, submitted it to the persons whose approval thereof was required, and that such approval was given in writing, as appeared from the copies of writings filed.

The defendants Hawkes and Tuttle demurred to the complaint, urging, among other things, that it was insufficient, in that it disclosed the lack of an enforceable agreement within the requirements of the statute of frauds.

Richard H. Tyner and Earnest C. Simpson, for appellants. J. Birney Tuttle, for appel

ed into an agreement with the plaintiffs, | court passed an order that the plaintiffs subject to their approval and subsequently should file a copy of all the writings relied upapproved by them, whereby they undertook to on by them to establish the agreement set up in convey to the plaintiffs within a reasonable the complaint. This order was complied with time certain described real estate in New by the filing of two receipts for the money Haven known as Nos. 27 and 29 High street, paid down, an unsigned memorandum made of which they were the legal and equitable by Lewis purporting to express the result owners, in consideration of the assumption of his negotiations with the plaintiffs and by the latter of an existing mortgage there sundry letters which passed between Lewis on of $6,000, a cash payment by them of and his principals before and after his ne$2,000, of which $200 was to be and was gotiations with the plaintiffs were concluded, paid down, and the giving back of a second and the unsigned memorandum made. The mortgage upon the property of $1,000; that memorandum, after stating the terms of the plaintiffs have ever since been ready and sale, concludes: "This agreement to be subwilling to carry out said agreement and per- ject to the approval of the heirs of the esform their part of it, and have made de- tate of Dorothy Williams." It is not quesmand that the conveyance be made to themtioned that the persons intended by this deas agreed; and that the defendants have scription were the alleged owners of the neglected and refused to make such convey- | property-Lewis' principals. Simultaneously ance. It is further alleged that the defend- with the filing of these papers the plaintiffs ants Hendricks, Mr. and Mrs. Kelsey, and Miss Williams, in violation of their said agreement, have conveyed their several interests in said premises to the defendant Hawkes; that Mrs. Hendricks at the time of her decease was a resident of Brooklyn, in the state of New York; that she left as her only heir at law and next of kin a daughter; that she left a will which named her said husband as executor and trustee; that Mrs. Hendricks was the owner of an undivided one-fourth of said property; that, in order to enable a conveyance of her said interest to be made, application was made to the court of probate in New Haven that a copy of her will might be filed and recorded in said court and letters testamentary be granted to the executor named therein; that PRENTICE, J. (after stating the facts as the defendants Hawkes and Tuttle there- above). The plaintiffs are seeking to enupon, and having full knowledge of the agree-force a contract for the sale and conveyance ment with the plaintiffs, in co-operation with others of the defendants to the plaintiffs unknown, conspired and undertook to pre vent the conveyance of the property to the plaintiffs; that in pursuance of such under-existence of a memorandum in writing evitaking and conspiracy, and to the end that the property might be conveyed to the defendant Hawkes, they obtained from the court of probate the appointment of Tuttle as administrator c. t. a. of Mrs. Hendricks' estate and trustee under her will, and authority to him to sell the interest of her estate in the property; that, in further pursuit of said undertaking, these defendants sought to induce the remainder of them not to convey the property to the plaintiffs, and that thereafter Tuttle, as administrator as aforesaid, Mr. Hendricks, Mr. and Mrs. Kelsey, and Miss Williams conveyed their several interests to the defendant Hawkes, who still retains them, so that the legal title to the premises is now in him and Miss Phipps. It is further averred that the premises are centrally located in the city of New Haven, are convenient to the plaintiffs' business, and were purchased by them for the purposes of residence.

lees.

of real estate. Pursuant to an order of court, they have spread upon the record as a part of their complaint all the writings upon which they claim to rely in establishing the

dencing the contract sought to be enforced such as will satisfy the requirements of the statute of frauds. For the purposes of the demurrer, which has been filed by two of the defendants, the demurrants are entitled to the assumption that there are no other writings which would help to establish the existence of such a memorandum. The possibility of the existence of certain parol proof supplementing the writings filed cannot, however, be ignored. For example, an agency carrying with it the power to execute a sufficient written memorandum may be created by parol. O'Sullivan v. Overton, 56 Conn. 102, 105, 14 Atl. 300; Moody v. Smith, 70 N. Y. 598; Long v. Hartwell, 34 N. J. Law, 116; Cave v. Mackenzie, 37 L. T. (N. S.) 218. So, also, ambiguities in the terms of a writing, or in the language of reference to other writings sought to be identified as those to which a signed writing refers, may be resolved by oral proof. Benjamin on

the action of the court below may be justified | significance as tending to show an acceptfor reasons arising from the statute of frauds, it must appear from the complaint and the writings filed, regarding them as including all pertinent writings, that the plaintiffs could not offer admissible evidence to establish the existence of the necessary mem-memoranda not intended for the other party orandum either by virtue of some one of said writings, or of all of them, taken together, or of any one or all of them, when supplemented by such parol proof as the law would permit to be received. Nichols v. Johnson, 10 Conn. 192, 198; Woodruff v. Butler, 75 Conn. 679, 681, 55 Atl. 167; De vine v. Warner, 76 Conn. 229, 232, 56 Atl. 562.