
    John P. Whitney et al., Resp’ts, v. The Hop Bitters Manufacturing Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Contracts—Performance—Evidence Sustaining finding of.
    This action was brought to recover the balance of the contract price of several hundred gross of glass bottles sold and delivered to the defendant under an oral contract by which the goods were to be delivered on board the cars at the place of making and the price payable on delivery, and a balance of the contract x>rice of several thousand gross of bottles manufactured and shipped by the plaintiffs to the defendant, under a written contract by which the plaintiffs agreed to manufacture and deliver five thousand gross of bottles according to a sample and description, in quantities as called for by the defendant, within one year from August 25, 1883, for which the defendant agreed to pay at the times and in the manner therein set forth. The answer admitted both contracts with the qualification in respect to the i rst, that it included a stipulation for the repacking of the bottles in a particular manner, and denied that either contract had been performed by the plaintiff, and denied that the defendant was indebted to the plaintiff in any amount, containing also appropriate aver- . ments for the recoupment of damages for breakage resulting from the failure of the plaintiffs to repack and properly place on board the cars the bottles purchased under the first contract, and also for the breakage of the same and for imperfection in weight and color of others of the bottles manufactured and delivered under the second contract. The cause was tried before a referee. Held, that the bottles sold under the first contract having been seen and examined by the president of the defendant at the time the sale was made to him, and the manner in which they were packed in trays being at that time plainly visible, the evidence sustained the finding of the referee that the package of these bottles was in conformity with the contract, and that they were properly stowed in the cars at the place of shipment, so that the risk of breakage in transportation was the defendant’s.
    2. Contracts—Interpretation of—Evidence of custom of trade is COMPETENT TO DEFINE TECHNICAL TERMS.
    
      Held, that evidence of the custom of trade in respect to variations in the color and weight of the bottles was properly admitted, not to contradict or vary the contract but to define such words therein as might be regarded as technical.
    3. Same—Construction of—Contract for delivery of goods by installments.
    
      Held, that the latter contract was not entire but plainly for the delivery of goods by installments, the time and quantity of each delivery to be determined by the order to be given by the defendant, and that the addition of the words “ and within one year from this date ” did not give the plaintiff the right to deliver the goods faster than they were called for, but was 'rather a stipulation on the part of the defendant to call for all the goods within the year.
    4. Same—Circumstances excusing performance.
    
      Held, that the notification of the plaintiffs by the defendant that it would receive no goods delivered after August 30, 1884, except such as should be ordered after that time, was sufficient to absolve the plaintiffs from further attempt to perform or tender of performance.
    Appeal from a judgment entered on the report of a referee.
    
      J. Welling, for app’lt; J. A. Stull, for resp’t.
   Dwight, J.

The action was to recover tho balance of the contract price of several hundred gross of glass bottles sold and delivered to the defendant under an oral contract by which the goods were to be delivered on board the cars at G-lassboro, N. J., and the price was payable on delivery. Also a balance of the contract price of several thousand gross of bottles manufactured and shipped by the plaintiffs to the defendant, under a written contract by which the plaintiffs agreed to manufacture and deliver five thousand gross of bottles according to a sample and description, in quantities as called for by the defendant, within one year from August 25, 1883, for which the defendant agreed to pay within sixty days from the delivery of each shipment or (at the option of the defendant) within ten days after such delivery, in which case the defendant was to be allowed a discount of two per cent.

The answer admitted both the contracts, with the qualification, in respect to the first, that it included a stipulation for the repacking of the bottles in a particular manner, and denied that either of the contracts had been performed by the plaintiff, and denied that the defendant was indebted to the plaintiff in any amount. It also contained appropriate averments for the recoupment of damages for breakage resulting from the failure of the plaintiffs to repack and properly place on board the cars the bottles purchased under the first contract; and also for the breakage of same and for imperfection in weight and color of others of the bottles manufactured and delivered under the second contract.

The questions presented by these defenses are mainly questions of fact, and have been passed upon by the referee on evidence which seems to us to support his several findings in respect thereto. The bottles sold under the first contract were seen and examined by the president of the defendant at the time the sale was made to him, and the manner in which they were packed in trays was plainly to be seen. We think the finding of the referee was sustained by the evidence to the effect that the packing of these bottles was in conformity with the contract, and that they were properly stowed in the cars at the place of shipment, so that the risk of breakage in transportation was the defendant’s.

Much the largest part of the evidence in the case relates to the defenses sought to be established to the claim of the plaintiffs to recover for the bottles which were shipped to the defendant under the written contract for the manufacture and sale of the 5,000 gross.

These defenses were, in effect, that of the few hundred gross of bottles actually received by the defendant under the second contract, a portion were broken and a portion did not conform in weight or color to the sample and descriptian mentioned in the contract; that the great bulk of the 5,000 gross of bottles had never been delivered, and that the refusal of the defendant to accept the delivery attempted to be made of nearly 4,000 gross of those bottles, was justified by the fact that they were not shipped in time, and that a portion of them did not conform to the contract in the respects above mentioned.

The facts, relating to those questions, found by the referee and, as we think, established by the evidence, are briefly as follows: The defendant ordered, during the year mentioned in the contract, less than 500 gross of the bottles, in separate orders, which were promptly shipped as ordered, and for which partial payments were made. Complaint was made by the defendant that some of these bottles were broken, and that some did not conform to the contract, and, with the consent of the plaintiffs, the defendant returned to them all the bottles rejected, and the price of such rejected bottles was credited to the defendant. All the bottles manufactured under the second (written) contract, had the name-of the Hop Bitters Company blown in the glass, and were, consequently, unsalable to anybody else. The last of the orders above mentioned was given by the defendant, August 6, 1884. On the twenty-sixth of August, the day after the expiration of the year mentioned m the contract, the plaintiffs wrote the defendant, as follows: “ The remainder of the bottles manufactured for you under contract of August 25, 1883, are now ready awaiting your orders for shipment. If an order is received from you before August thirtieth, we will ship; if not so received we will store, at your risk, and charge all expenses to you. After August thirtieth, any bottles shipped to you we will deliver F. O. B.—freight and all risks of road must be borne by you.” To this communication they received answer by telegraph, in the evening of August twenty-eighth, as follows: “You may deliver re-

mainder of bottles here on or before August thirtieth, 1884, on terms of contract of August 25, 1883.” The plaintiffs at once set about procuring the necessary cars (of which twenty-seven were required) for the transportation of the bottles on hand, amounting to nearly 4,000 gross, and on August thirtieth, completed the shipment, consigned to the defendant, at Rochester, N. Y.

On the 2d of September, before any of the bottles had arrived at Rochester, the defendant telegraphed the plaintiffs as follows: “We will receive no bottles from you, delivered here after August 30, 1884, not inspected here at your expense and perfect, and in such quantities as we hereafter order/’ to which the plaintiffs answered: “Bottles shipped on receipt of your message of the twenty-eighth, and now in transit. We cannot agree to conditions in message of second. See contract.”

On recepit of this message, and before the arrival of any of the bottles at Rochester, the defendant wrote the New York Central freight agent at that place: “ If any cars of bottles come to you from Whitney Bros., or others, marked or billed to us, you will not do anything with them for us, or in our name, or presume that we have anything to do with them whatever.” This direction seems to have been communicated, by the officials of the New York Central road, to those of a connecting line, over which the bottles were being transported, and an inquiry on the part of the latter, as to why the bottles were refused, was answered by the defendant, on September eleventh: “The bottles are not according to contract.” The president of the defendant had, after giving the direction for the refusal of the entire shipment, examined some of the bottles, which, in the meantime, had arrived at the depot of the New York Central Railroad at Rochester; the last of them arrived on the eighteenth of September. The whole shipment was, at first, unloaded and stored in the railroad freight depot, but they were afterwards removed, by the railroad company, to a warehouse in the city, where they remained stored at the time of the trial, the defendant having refused to receive any part of them. They were then liable to. be sold for charges, and, whenever sold, were likely to fall into the hands of the defendant at a low price, because of little or no value to anybody else.

The referee finds that the bottles so shipped by the plaintiffs were in substantial compliance with the contract under which they were made, being as nearly of the uniform weight and color prescribed by the contract, as it was practicable to. make them; and that they were well made and shipped and arrived at Rochester in good condition.

We think this finding is warranted by the evidence. The case is quite full and instructive on the subject of the manufacture of colored glass bottles. We learn that the bottle is blown in an iron mould, the interior conformation of which gives form to the exterior of the bottle. To accomplish this purpose, a small quantity of the material of the glass, fused at a great heat, is gathered from the crusible or smelting pot on the end of the blow pipe; the quantum of fused material cannot be weighed, nor can it be measured except by the eye of the operator. The bulb of melted glass on the end of the blow pipe, when its temperature is properly reduced, is inserted within the mould, and. by force of air blown from the lungs of the workman, is expanded until it fills the mould in all its parts. Necessarily the bottles so produced are of the same size externally, but the greater their weight the less their capacity, and their weight is determined by the amount of fused material gathered on the blow pipe. In the nature of things it is impossible that the weight of bottles produced should be absolutely uniform; and, naturally, the custom of the manufacturers of this commodity has established a rule which fixes the limit of variation from a uniform weight which is to be allowed. Evidence of such custom was properly received in this case and the finding that the limit so prescribed was not exceeded in the manufacture of these bottles is well supported.

We learn, also, that it is equally impossible to obtain an absolutely uniform shade of colorín a large quantity of bottles; that, with the same quantity and proportion of materials employed, the color will be affected by the degree of heat to which those materials are subjected, and that the degree of heat will be affected by such uncontrollable influences as the condition of the atmosphere and the force and direction of the wind. We have little hesitation in assenting to the conclusion of the referee that, in respect to both color and weight, the bottles in question conformed to the contract as nearly as was practicable under the neces • sary conditions of their manufacture.

The facts found by the referee constitute a complete delivery of the large shipment of bottles. They were shipped as soon as possible after the receipt of the order of August 28th, and if any unusual delay occurred in their transportation to Rochester, it would seem to have been due to the interference of the defendant in the attempt to prevent their delivery. The fact that this shipment did not complete the quantity of bottles contracted for is no defense to this action. An elaborate argument is made on the part of the defendant in support of the proposition that “the contract was entire, and called for entire performance, and that until such was made or tendered, there was no liability on the part of the defendant.” The proposition is quoted from the opinion of the court in the case of Catlin v. Tobias (26 N. Y., 217), and that case and the cases of Norrington v. Wright, 115 U. S., 188, and Champlin v. Rowley, 13 Wend., 258; S. C., 18 id., 187, are relied upon as sustaining the application of the doctrine to this case. We find the case strongly distinguished from the cases cited, and from any other case, to which our attention has been called, in which the doctrine of an entire contract has been applied. Aside from the fact that this was a contract for the manufacture of goods and not for their sale merely, upon which stress is laid by counsel for respondents, we find in the particular terms of the contract ample grounds for distinguishing this from the cases referred to. In Norrington v. Wright (supra), the contract was for the sale of 5,000 tons of rails, and the contract itself specified the time and the amount of each shipment, viz.: about 1,000 tons each month, beginning in February, and all to be shipped before August. The court say they are “ of the opinion that the plaintiff’s failure to make such shipments in February and March, as the contract required, prevents his maintaining this action.’ So also in Catlin v. Tobias (supra), the contract expressly prescribed the time within which all the goods should be delivered, viz.: within three months form the date of the contract; and in Champlin v. Rowley (supra), the court held, on the terms of the contract, that the delivery of the entire quantity of the hay sold, was a condition precedent to the payment of the price. In this case, on the other hand, the goods were, by the terms of the contract, to be delivered only as ordered by the defendant; the language of the stipulation is, “To be delivered in Rochester, N. Y., in car loads, free from all freight to us, and when we direct, and within one year from this date.” This is plainly a contract for the delivery of goods by installments, the time and quantity of each delivery to be determined by the order to be given by the defendant. The addition of the words “And. within one year from this date,” did not give the plaintiff the right to deliver the goods faster than they were called for, but must rather be considered as a stipulation on the part of the defendant to call for all the goods within the year.

This contract the plaintiffs have fully performed. They delivered all the goods that were called for, and as they were called for within the year, and, at the close of the year, having received no further orders, notified the defendant that the remainder of the goods manufactured were held subject to its orders; that they would ship all goods ordered before August 30th, but" if not ordered before that date, they would be stored at the defendant’s risk and charges. The order which the defendant gave in response to this notification was impossible of execution according to its terms ; it was probably intended as a snare. No part of the goods could have been shipped after the receipt of that order, on the evening of the 28th of August, so as to have reached Rochester on the 30th. The plaintiffs, however, proceeded to comply with the order as nearly as possible, and shipped nearly four thousand gross of bottles on the 29th and 30th. It was after that shipment, and before any portion of the goods had reached their destination, that the plaintiffs received the final communication from the defendant to the effect that it would receive no goods delivered in Rochester after August 30th, except in such quantities as should be ordered after that time. If nothing had occurred before the receipt of this dispatch to indicate the determination of the defendant not to accept performance of the contract by the plaintiffs, this would have been quite sufficient to absolve the latter from any further attempt to perform or tender of performance. No further order for bottles was ever given by the defendants.

Upon this case we cannot doubt the correctness of the findings of the referee, which, in effect, credit the plaintiffs with a substantial performance of the contract on their part, so far as they were required or permitted to perform it.

The objection on the part of the defendant that a portion of the bottles shipped by the plaintiffs were not manufactured m their own works, but in those of another firm at Brighton, N. J., we do not consider of importance. This contract was manifestly not one which was to be performed by the plaintiffs in person, nor necessarily under their personal supervision. The production required the labor of a great number of men, presumably under the direction of foremen and superintendents, and whether in their own factory, or in one especially employed by them to do the work, would seem not to be of the essence of the contract. The bottles in question were manufactured for the plaintiffs, expressly for this contract, in moulds furnished by them and under the inspection of one of the managers of their business. There was no evidence or offer to show that those bottles did not fully answer the requirements of the defendant’s contract.

We think there was no error in the rulings of the referee on questions of evidence which vitiate the judgment. The objection principally urged was that to the admission of evidence of the custom of the trade in respect to variation in the color and weight of bottles. As we have already intimated, we think this evidence was properly received.* It ■did not tend to contradict or vary the contract, but to define what may be regarded as technical terms employed therein. The proof shows that the terms “amber colored bottles,” “to weigh twenty-two ounces and of uniform weight and color,” as used in this contract, are not to be understood, in the strict sense of the words, themselves, for if they were so construed the contract would be impossible of performance. They are to be understood m the particular sense in which they were used in the trade, a product of which is the subject of the contract. And that evidence of usage is admissible to explain words used in such particular sense, is well established. Collender v. Dinsmore, 55 N. Y., 200; Walls v. Bailey, 49 N. Y., 470, quoting Boorman v. Johnston, 12 Wend., 566 ; Hinton v. Locke, 5 Hill, 437.

There are no other rulings in the case which seem to require discussion.

We are of opinion that the judgment is right and should be affirmed. All concur.  