
    Hiram D. Hurd et al., Resp’ts, v. Lorenzo J. Bovee et al., App’lts. Lorenzo J. Bovee et al., App’lts, v. Hiram D. Hurd et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    Evidence — When admissible to explain written contract.
    Where a memorandum of sale consisted of several items, as to one of which no price was stated and the time of payment for all the items was susceptible of different constructions, paroi evidence is proper to supply such deficiencies and to show the true contract.
    Appeal from judgment entered on the report of a referee.
    
      W. J. Peck, for app’lts; N. Morey, for resp’ts.
   Dwight, J.

These were cross actions; the first was for the price of a quantity of lumber sold and delivered; the second for damages for the non-performance of a contract for the sale and delivery of lumber. The alleged defense in the first action was the cause of action alleged in the second.

At the time of the bargain for the lumber, a memorandum was made by the plaintiff Hauenstein and signed by him in the name of his firm, and delivered to the defendant Bovee. It was in the following words:

“ Buffalo. N. Y., May 13, 1880.
“ Sold to Messrs. Bovee & Kelsey, to be delivered on cars here, 100 M. 1-inch shipping culls, to be shipped before July 1st at $11.25, they to pay the B. C. railway charges, and 100 Mi 1-inch shipping culls, to be shipped after August 25 and before Oct. 1, at $11, and 100 M. 16f-ineli and up wide coffin boards, sound, common, seasoned eight months. Terms two months.
(Signed.) “Hurd & Hauenstein.”

On the trial, evidence was received on the part of the plaintiffs, in the first action, to show what was the whole of the contract between the parties. The evidence was objected to and the exception to its admission presents the question principally discussed as the ground of this appeal. We think the evidence was properly admitted, because the memorandum showed on its face that it did not contain a complete contract between the parties. There is no price fixed for the 100,000 feet of wide boards, nor .any time fixed at or within which that portion of the lumber should be delivered. Moreover, the language “terms two months” is manifestly ambiguous. Does it mean two months credit on each delivery of the lumber sold, or two months credit on the whole, after the last shipment shall be made ? And the memorandum is all the more uncertain in this respect because no time is fixed or limited for the shipment of the last-mentioned 100,000 feet of lumber. The oral evidence of the contract actually made seems to have been properly received for the reasons stated, and under the authority of such cases as Union Trust Company v. Whiton, 97 N. Y., 172, and Brigg v. Hilton, 99 id., 517, 526.

The evidence on both sides shows that the provision for two months time, indefinite as it was, was not the memorandum when it was signed, but was added on the suggestion of the defendant Bovee that the terms of sale were omitted.

The oral evidence being admitted, the referee was justified in finding that the credit to be given was two months on each delivery, and not on the entire amount of lumber after the whole should be delivered. It could hardly have been the latter, in view of the fact that the period of delivery of the first two lots of lumber covered nearly five months of time, and therefore, on the defendant’s theory, the credit to be given to them .would have varied from two to seven months, even supposing the last-mentioned lumber was to have been delivered within the time prescribed for the delivery of the former lots.

The oral evidence received justified the further finding in addition to the facts evidenced by the memorandum, that the defendants were to give their notes for the several deliveries of lumber, at two months, and that they were to pay for the last lot of wide boards at sixteen dollars per thousand feet. There was nothing in the evidence thus received to contradict or vary any of the terms contained in the written memorandum. It merely supplied some details essential to the contract, but omitted from the memorandum, and, in one case, resolved a patent ambiguity in respect to the terms of payment.

The contract being thus established there could not well be any question, on the facts, of the right of the plaintiffs in the first action to recover. They first, on May 28th, shipped to the defendant’s order about 60,000 feet of the shipping culls, which were accepted and paid for, as the contract provided, by the defendant’s note at two months. With the transmission of this note the defendants requested the plaintiffs to ship no more until further orders. Accordingly the plaintiffs made no further shipment until July 31st, when, by further direction of the defendants they shipped about 50,000 feet of the same class of lumber, to the same consignees, named by the defendants, which was refused by the consignees as not being in compliance with their, the consignees’, contract with the defendants; and the plaintiffs, while protesting that it was in compliance with their contract with the defendants, finally consented to take the lumber back. It is instructive, in respect to the completeness of the memorandum in evidence, to observe in this coimection that the defendants rejected this lumber on the ground that some portion of it was less than six inches wide, and insisted that this was in violation of the contract actually made with the plaintiffs, although the width of the lumber is not mentioned in the memorandum.

Later, and shortly before the first of October, by direction of the defendants, the plaintiffs made another shipment of about 60,000 feet of the shipping culls, to the same consignees, which was accepted by the defendants as in compliance with the contract, but for which they did not pay by their note, or otherwise, and for which the recovery was had in the first of these actions.

The grounds assigned by the defendants for their refusal to give their note in payment for this shipment of lumber, was the same as that pleaded as a defense to the first action, viz.: that the contract was entire and that the plaintiffs were bound to deliver all the lumber mentioned in the memorandum before they were entitled to be paid for any. We have seen that this ground of defense was unavailing under the contract as • established on the trial and found by the referee. That contract, the referee was justified in holding, was broken by the defendants and not by the plaintiffs.

There was an objection by the defendants to the reception of evidence relating to the two shipments of lumber which preceded that for which the recovery was had. The objection was not much insisted upon on the argument here, and it was clearly not well founded. The evidence furnished a necessary part or the history of the transactions of the parties under their contract. It went to show the practical interpretation given to the contract by the defendants themselves, and that the contract had been performed by the plaintiffs up to the time of the refusal of the defendants to perform on their part.

On the whole, we regard the plaintiffs’ case in the first action and their defense in the second as well supported in fact and in law.

Both the judgments should be affirmed.

Barker, P. J., and Childs, J., concur.  