
    The American Seeding Machine Company, Appellant, v. Lee Stearns and Elmer Stearns, Respondents.
    Fourth Department,
    November, 1905.
    Contract for'sale of chattel:—ambiguity as to whether a sale or agreement to sell oh commission — when conduct of parties should be considered by jury in determining intention of parties.
    Where a-contract, upon its face", imports' an absolute arid unqualified sale of machinery,, .the mere fact that a clause at the end provides- that the alleged* vendors, after a. subsequent .sale of the goods by the vendee, will accept in •settlement, "good purchasers notes indorsed by agents drawing interest ” does , X; not, as matter of law, make the contract one to sell on commission.
    Where',, however, there is such latent ambiguity In the contract,, and the vendors, without alleged vendee’s assent, have taken back part ¡of the machinery left * after a fire, the fact should be considered by the jury as throwing light on.the intention of -the parties, and a nonsuit is error.
    Appeal by the plaintiff, .The American Seeding Machine Company,. from a judgment of the County Court of Cattaraugus county iñ favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 16th day of June, 1905, upon a non-suit granted by fhe court.
    
      Ernest E. Woodruff, for the appellant.
    
      James E. Bixby, for the respondents.
   Hiscock, J. :

This action was' brought to recover the purchase price of a drill claimed to have been sold by plaintiff to defendants. The defenses pleaded embraced the ones that the action was prematurely brought;' that plaintiff rescinded the contract of sale by retaking part, of the . machinery ; that the drill was shipped to defendants as agents* upon .commission. The learned county judge seems to have dismissed the complaint upon the last ground, and we think therein he committed error for* which .the judgment miist be reversed*.

-The drill was shipped under a written contract which, except for one expression, imports an absolute and- unqualified sale with an unconditional obligation upon the part of defendants to pay. It is headed as a “ sale contract,” and by it “ The American - Seediñg Machine Co. * * sells, and Stearns Brothers * * * buys agricultural implements as stated in annexed order at prices and terms as stated.” Then follows a description of the thing sold and a statement of manner of payment and various discounts which are all in terms appropriate to an absolute sale. -In addition, there is a clause relied upon by defendants reading as follows: “Additional terms. For wheat drills good purchasers notes indorsed by agents drawing interest * * * will be accepted in settlement, etc.”

We are not able to find any very clear evidence that the drill involved here was a wheat drill and, therefore, within the terms of this clause but shall assume that it was. In the absence of ambiguity and extrinsic evidence altering the rule, it would be our duty to interpret this contract and determine the rights of the parties there-. under as a matter of law. If we followed this course, we should hold that -the contract as an entirety was one of purchase and sale ■and not of shipment upon commission and that the plain and unequivocal meaning of the instrument in its other provisions was not •overturned by the use of the word “ agent ” in the clause quoted. The form of contract employed was apparently one in general use by plaintiff. It granted certain territory to the persons taking the latter’s implements. They were in a- popular sense “ agents ” for the- sale of plaintiff’s wares in that territory, and we think the description of them by that word was indicative of some such feature rather than of a legal relation of agency to plaintiff which turned terms of absolute sale into those of shipment upon ■commission.

It very likely was understood that defendants were buying- for the purpose of selling again rather than for their own use, and a. proper situation was presented for dealing upon consignment if so desired, but we should not be willing to say merely from the written engagements that this was the intention. It is of some significance that the clause especially referred to by defendants, although allowing an agent to turn his customers’ notes over to plaintiff in settlement, still required his indorsement thereof, thus reserving his personal responsibility as upon an absolute sale.

We think that the term “ agent ” and language used in connection therewith are not of themselves so decisive in meaning or controlling in effect as to change what otherwise seems to he the clear meaning of the instrument as one of absolute sale. (Goldsmith v. Levin, 8 N. Y. St. Repr. 313; McKecknie v. Ward, 58 N. Y. 541, 545.)

It is, however,, urged that subsequent to the execution of the contract certain things took place between the parties which throw light upon its interpretation and upon the intentions of the parties to be gathered therefrom. While, we do not give to these events the conclusiveness as matter of law which counsel does, we still do think that they are sufficient in connection with the alleged uncertainty of the language used in the- agreement to present an issue as to the intention of the parties.,

.

After the'drill had come into, the possession- of the defendants< most, of its parts were' destroyed by fire. Subsequently plaintiff’s agent called for the purpose of settling the account and he proposed to take back and credit upon account some wheels which were left. Before defendants had finally assented to this proposition the agent did ship back to plaintiff said wheels, writing to it to credit the value of the same upon the account, which was done. This reshipment without consent of defendants furnished some evidence from which a jury might say that the plaintiff thus acted because it regarded the contract as preserving in it the title, while defendants had possession as agents upon commission, and thus giving ■ to it the right to retake without consent. • ■

It is settled that where a contract is ambiguous and uncertain the acts of the parties .thereunder may be considered sometimes in interpreting its meaning and determining their intentions, and such interpretation- then becomes a mixed question of law and of fact.. (McClanathan, v. Friedel, 85 Hun, 175; Kenyon v. K. T. & M. M. A. Assn., 122 N. Y. 247; Dwight v. Germania Life Ins. Co., 103 id. 341, 353.)

We think this case upon the evidence as now presented comes within -this rule.

It also was- and is urged that- this action was prematurely brought, but we think this contention is not borne out by the evidence^

By the terms of -the contract spring sales were to be settled for by October- first. The contract provided that this drill was to be shipped February first, and the evidence discloses that it had come into defendants’ possession before June or July w,hen the fire occurred. Presumptively, therefore, there was a spring sale requiring settlement before the action was commenced.

For the foregoing reasons, as stated, the disposition of the case in the court below adversely to plaintiff as matter of law was error.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  