
    James W. Lyon, App’lt, v. Thornton N. Motley et al., Resp’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed August 1, 1894.)
    
    1. Contract—Construction.
    A contract should be so construed as to give effect to every word and expression contained therein.
    2. Same.
    The parties to a contract will be bound by that construction which they themselves give it.
    3. Same—Ambiguity.
    In case of ambiguity in a contract, evidence of custom in the particular business is admissible, in order to elucidate its meaning.
    4. Same—Return of goods.
    Where the vendee, under contract of sale, has the privilege of rejecting the goods, it is his duty to return them at the point specked in the original or modified contract.
    Appeal from a judgment rendered in favor of the defendants in the district court of the city of New York for the eleventh district.
    
      Charles S. Kellogg, for app’lt; Charles W. Dayton, for resp’t
   Bookstaver, J.

This action was brought to recover the value of goods alleged to have been sold by the plaintiff to the defendants who then were and now are co-partners in business under the firm name of Thornton N. Motley & Co. On the 18th o£ March, 1893, Bleecker Bangs, defendants’ buyer, gave to J. H. Sykes, plaintiff’s salesman, the following order: “Office of Thornton N, Motley & Co., 43 John street, New York, March 18th, 1893, B. 9897. Order No. B 9897. J. W. Lyon & Co., city. 1 Please ship the following goods at once. Twenty (20) large bales of wool waste as sample at 5J cents lb. delivered at our store; quality guaranteed and subject to return if rejected. Deliver all you can at once.’ Terms, 60 days from date of invoice. Do not render bill until entire order is delivered. Ship to 43 John street, N. Y. Mark-, care of--. Ship via truck. Charge to our account. Render bill promptly, giving order, number and stating when and how the goods were shipped. Render statement the 1st of month succeeding purchase.’’ (Signed) B. Bangs, Buyer. In accepting this order;' the following memorandum of sale was given:

“March 18th, 1893. Sold to Messrs. T. N. Motley, 43 John street, the following goods: 20 large bales of wool waste as sample at 5J cents, delivered at store. . Subject to terms of order B 9897. Terms 60 days cash. Shipping instructions, by truck before March 25, 1893, J. W. Lyon & Co., per (signed) J. H. Sykes.”

Pursuant to this contract plaintiff delivered ten bales of wool waste to the defendants, and they afterwards refused to allow the plaintiff to supply the remaining ten bales in completion of the contract, and on the trial claimed to have returned the ten bales that were delivered. In delivery of the ten bales in controversy, the defendants sold and shipped them to their customer, who rejected the same, and the defendants notified plaintiff by letter of March 30th, 1893, of the rejection, and asked him to advise them to what point he desired the rejected waste shipped. The first question arising upon this appeal is as to the true intent and meaning of the contract made between the parties.' Appellant contends it was merely a sale by sample and nothing more; the respondents contend that while it was a. sale by sample, it also provides for the return of the goods if rejected by their customer or customers. In the construction of such a contract the chief question is what was the intention of the parties in making it. When the contract was made, plaintiff knew that the goods were for a customer of defendants. Plaintiff’s salesman was told by defendant’s buyer that if the goods were not accepted, they would be returned, and this before the contract was made. These facts tend to show that the understanding of the agents of both parties that the clause in the contract “and subject to return if rejected” had a special significance and meaning. Again, it is a fundamental principal of construction that a contract should be so construed as to give effect to every word and expression contained therein. Miller v. Hannibal & St. J. R. R. Co., 90 N. Y. 430; Barhydt v. Ellis, 45 N. Y. 107. If the plaintiff’s construction should prevail, then there would be no meaning whatever to this clause, and there could be no object in inserting it In the light of the knowledge of the parties, we think the court below correctly construed the contract, and that the true meaning of it was that the goods were not only to be up to the sample, but even if up to the sample they were to be returned if the customer of the defendant rejected them. This being the case the fact that the defendants did not examine the goods after an opportunity to do so, but shipped them directly to their customer, is of no significance. The right to return did not depend upon whether or not the goods were up to sample, but whether or not they were accepted by the customer.

Inasmuch as there was some ambiguity in the clause under consideration, the court properly admitted evidence of the custom in the railroad supplies business, in order to elucidate its meaning, especially in view of the fact that plaintiff’s agent was informed that the goods were intended for that business. But while all this is true, we think there must be a new trial in the action for the reason that there is nothing in the evidence to show that the defendants returned the goods to the plaintiff or to any place of business belonging to him. The parties to a contract will be bound by that construction of the contract which they themselves give it. That the defendants considered it their duty in making a return under the contract in question to return the goods to the plaintiff’s place of business in Hew York, is shown by their agent’s testimony, who says “I asked Mr. Sykes the location of their factory, in Jersey Oity; I told him we would ship the. goods to Jersey Oity in preference to Hew York where they would have to be carted over the river again ; I said we would instruct our consignee to make the return to Jersey City. But while he did this and knew the location of the factory, neither the defendants nor their agents claimed to have returned the goods to that factory. On the other hand we gather from the evidence that the nearest approach to this was to ship the goods to the Jersey Oity railroad depot without paying charges thereon and to notify the plaintiff that they were there. This was not such a return as the law requires nor such as was contemplated by the parties. Respondents seek to overcome this difficulty by claiming that the appellant waived his right to a return of the goods to his factory.' The only basis for this contention are two letters written by Mr. Bangs, buyer of the defendants, to the plaintiff, one dated March 30th, 1893, in which he notifies the plaintiff of the rejection of the goods delivered and ask him to advise the defendants as to the place where he desired the rejected waste shipped. In response to this letter, Mr. Sykes, plaintiff’s salesman, had an interview with Mr. Bangs m which it was agreed that the goods should be returned to Jersey City, the location of the plaintiff’s factory being communicated to Mr. Bangs at the time. The other letter is dated April 5th, 1893, and notified the plaintiff that the goods had been shipped to him in car Ho. 903 of the Philadelphia & Reading road, and asked him to take care of the rejected material at once. This clearly was not a sufficient return or offer to return. As we have before stated the freight charges were not paid, the plaintiff was not bound to pay them by the terms of the agreement, nor was he bound to seek the goods at the railroad depot. On the other hand it was the defendant’s duty to return the goods to the plaintiff at the point agreed upon, which, under the modification of the contract, was at his factory in Jersey City. For this reason the judgment must be reversed and a new trial ordered with costs to the appellant to abide the event. Bischoff, J., concurs.  