
    George P. Pollen et al., Plaintiffs and Respondents, v. Thomas Otis Le Roy et al., Defendants and Appellants.
    1. A contract for the sale of a specific quantity of a certain kind of merchandise, while on board of a vessel at sea, is sufficiently performed by the delivery from on board such vessel, on its arrival,, of a like quantity and kind of merchandise, if it correspond with the rest of the" description of the goods sold in such contract, notwithstanding any designation of them therein as being of a brand, with a certain title composed of the names of individuals; if no similar goods, designated as an article of commerce, as being of such a brand, be known in the market whe¿e such sale took place; especially if all the names used, in such title be those of members of a firm by whom such articles were manufactured, the goods delivered be marked with two of those names, and the whole of such title nearly resembles that used by such firm.
    2. Under such circumstances the designation of the articles as of such a brand, may be rejected as surplusage, or an erroneous particular of description; or 
      the naming of the brand may be .construed to intend a mere designation of the manufacturers, and that the articles sold should be marked with names usually employed by them to designate that they were of their manufacture.
    3. Thus where the plaintiffs agreed to sell and deliver to the defendants a quantity of soft English lead, to arrive by a specified vessel, designating the lead in the contract as “ Walker, Parker & Walker brandwhen, in fact, there was no firm of Walker, Parker & Walker in existence, and no lead so marked was known in the market as an article of commerce; but the lead on board the vessel was manufactured by a firm, two of whose members were named “Walker,” and one “Parker,” known as “Walkers, Parker, Walker & Co.,” and had been marked or branded by them “ Walkers., Parker & Co."
    
    Held, that upon these facts the contract was satisfied by a delivery of that lead.
    4. In such cáse, it is the province of the Jury to determine, upon evidence as to the usage of trade, what was the intention of the parties.
    5. In such a case, evidence that there was no other lead known in the market by the designation of Walkers, Parker, Walker & Oo.’s brand, or any similar brand, except that manufactured by such firm; that soft English lead so manufactured would be of equal quality and value, whether stamped “Walkers, Parker, Walker & Co.,” or “Walkers, Parker & Co.;” and that “soft English lead, Walker, Parker & Walker brand” would, according to the understanding among dealers in the article, designate lead stamped either way, is admissible to enable the Jury to determine, that the marks were merely employed to indicate the quality called for by the agreement, and that the terms employed to designate the brand in the contract, were so used merely to indicate the manufacturers, and were equally applicable to all lead manufactured by them and branded to indicate such manufacture.
    6. Evidence of conversations between the parties to a contract prior to its completion; however admissible to construe terms used in it, is not otherwise admissible for the purpose of determining the intention of such parties.
    
      7. In order to prove what article was intended in a contract, by a name used in commerce, it is proper to ask a witness-who is an expert, “ how the article is generally known in the market ? and how spoken of generally ?"
    8. The negative testimony of witnesses-familiar with a certain commodity, who have long dealt in it, that they never saw any of a specified brand, may be weighed against testimony of another witness that he had seen it, in determining whether such brand existed and was known in the market.
    9. Where, under an executory contract for the sale of goods, the buyer refuses to receive and pay for them, and the seller, after notice to the buyer of his intention so to do, sells them fairly at the best price he can obtain, and sues to recover the deficiency between the proceeds of the sale and the contract price, such sale, though the defendant was not notified of the time and place of making it, is a test as against him of the value of the article.
    
      10. Ttie Court will not allow an appellant to raise, upon the appeal, for the first time, an objection to an assumption by the Court below of a doubtful fact, where he took no objection below to such assumption, but only to conclusions of law based thereon. .
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 13;
    decided, November 29, 1862.
    This was an appeal from a judgment entered upon the verdict of a Jury in favor of the plaintiffs, and also from an order denying a motion for a new trial.
    This action was brought by George P. Pollen and Robert Colgate, against Thomas O. Le Roy and David Smith, to recover for an alleged breach of a contract by the latter to purchase a quantity of lead. The contract of sale was a bought and sold note in the following terms :
    ‘ Sold T. O. Le Roy & Co.,
    “ For acct. of Pollen & Colgate,
    “ 150 tons soft English lead of
    Walker, Parker
    & > brand,
    Walker )
    to arrive per Providence, from Newcastle, at 6| cts. per lb., cash.
    “ Turell Bros.
    “April 25th, 1853.”
    The quantity of lead called for in this contract had previously (in March, 1853,) been laden on board the ship “Providence,” and arrived in New York in July, 1853. That lead was stamped or marked “ Walkers, Parker & Co., Newcastle-upon-Tyne.” It was tendered to the defendants in fulfillment of the contract, and by them refused.
    The plaintiffs sold the lead, after notice to the defendants that they intended to do so, at the best price they could obtain, which at the time of sale was less than the contract price, and brought this action to recover the deficiency from the defendants.
    The complaint alleged that the’parties had made a contract which required the plaintiffs to deliver soft English lead of the manufacture or brand of Walker, Parker & Walker; and that the lead tendered by them was of the brand and manufacture of Walker, Parker & Walker, intended by the contract. The answer of the defendants insisted that they were entitled to receive lead marked or branded Walker, Parker & Walker, and that the lead tendered them was branded Walker, Parker & Go., which was an inferior article. It appeared upon the trial that the brand “ Walkers, Parker & Go.” was well known in this market.
    This brand had sometimes the word “ London ”• suffixed to it. These, and the brand “ Walkers, Parker & Go., Newcastle,” were the only brands of Walker lead sold in our market. There was no such brand as “ Walker, Parker & Walker.”
    
    The firm which manufactured the lead in England was “ Walkers, Parker, Walker & Go.” The reason for using the brand mark “ Walkers, Parker & Co.” was stated to be that to suit the American market, the pigs of lead were cast in smaller moulds than ¿usual, and were too short; to be branded with the full name of the firm; there was not any firm in England of the name of “ Walker Parker & Walker,” nor was there any lead made there branded “ Walker, Parker & Walker.”
    Upon a former trial of this case the plaintiff had been nonsuited, and on appeal to the Court of Appeals the judgment was reversed and a new trial ordered, the following opinion being rendered:
    H. Gray, J. “ The subject of the sale note was soft English lead to arrive from Newcastle by the ship Providence then on its voyage from Newcastle to New York. If there had been in existence at the time the note was given lead of “Walker, Parker & Walker” brand, the case would be relieved of any question. Soft English lead from Newcastle with that brand upon it must have been delivered, or the terms of the note would not have been complied with. (Beals v. Terry, 2 Sandf., 127.) “ There was no such brand. “ We are therefore left to determine whether, from the light afforded by collateral facts and circumstances, an ambiguity exists as to the intention of the parties, which rendered it necessary that the note, with the extrinsic evidence, should have been submitted to the Jury, that they might from, the note, aided by the surrounding circumstances, nave determined what the plaintiffs intended to sell, and what the defendants intended to buy.
    “ That soft English lead manufactured at Newcastle then on board the ship Providence on its voyage to New York, was the article intended to be sold is established, not only by the sale note, but by the concurrent facts and circumstances attending the transaction; and that it wa,s known in market and spoken of as Walker’s lead, is also a fact about which there is no dispute.
    “ The firm by whom it was manufactured was Walkers, Parker, Walker & Co., of Newcastle-upon-Tyne, and it was the only firm of that or any similar name engaged in the lead business at Newcastle or elsewhere in England, when the sale note was given. It did not occur to the broker, nor was it suggested by or to the defeúdants, that Walker, Parker & Walker was a new brand, nor was the brand itself the subject of conversation; but whenever, during the negotiations' for the sale, anything designating the quality or character of the lead was spoken of, it was called “Walkers,” and represented to be good soft English lead, fit for white lead.
    “The firm of Walkers, Parker, Walker & Co., had a branch in London doing business under the firm name of Walker, Parker & Co., and lead came to the New York market branded Walker, Parker & Co., London, and Walkers, Parker & Co;, Newcastle. And although the metal broker who negotiated the sale and gave the sale note, when recalled by the defendants near the close of the trial, testified that there were three brands which came to the New York market; one Walkers, Parker & Co.; one Walkers, Parker & Co., London ; and one Walkers, Parker & Co., Newcastle-upon-Tyne; the latter of which was ” not much known; that it was better than the London, and not as good as that branded Walkers, Parker & Go., without the additions of London or Newcastle upon it; and he thought it generally understood that lead smelted at Newcastle-upon-Tyne was Spanish lead; this broker, when introduced by the plaintiffs, near the commencement of the trial, and fully examined and cross-examined as to the different brands and their qualities, testified that he knew of but two brands—Walkers, Parker & Go., Newcastle, and Walkers, Parker & Go., London—except that he had seen a part of one pig marked Walker, Parker & W. and that the two brands described by him had been well known in the New York market for eight or ten years.
    “No other witness, except this one, testified to any knowledge of more than two brands of the Walker lead in the New York market, from which evidence given, it is quite clear that the Jury would have been warranted in finding that lead, whether branded Walkers, Parker & Go., without any addition, or Walkers, Parker & Co., Newcastle, or Newcastle-upon-Tyne, indicated precisely the same quality of lead, and was understood by those engaged in the trade as meaning one and the same thing; that the additions of Newcastle, or Newcastle-upon-Tyne, were only intended to indicate where it was manufactured, and that each indicated the same place; and that the lead shipped, branded as it was, was soft lead of a superior quality, manufactured by Walkers, Parker, Walker & Go., of Newcastle-upon-Tyne.
    “ If it was the intention of the parties to contract for a brand, soft English lead of an inferior quality with the new brand upon it would have satisfied the contract. There was no such brand or firm as Walker, Parker & Walker. There was a firm of Walkers, Parker, Walker & Co. of Newcastle; but lead branded Walkers, Parker, Walker & Go., did not come to the American market for the reason that the pigs cast for this market were too small for such a brand, and it was to suit this market that large pigs originally branded W., P., W. & Go. were re-cast into smaller size, which would admit of only the brand of 'Walkers, Parker & Co., upon any one side of them, and sent out by the ship Providence.
    “I think it cannot be questioned, that the contract referred to lead manufactured by that firm. (Powell v. Horton, 2 Bing. H. C., 665, 671.)
    “ And it should be so construed, if consistent with the words used and the surrounding circumstances shedding light upon them, as to give the plaintiffs' the advantages of the actual sale and delivery of lead, and the defendants the advantages of its receipt, instead of so construing it as to give the defendants a mere right of action for its breach, for no other reason than that no such brand existed.
    “ I am of the opinion that the fact that there was no such brand as that specified in the contract, connected with other collateral facts and circumstances, raised a doubt as to what description of lead the sale note referred to, and that the- whole question should, therefore, have been submitted to the Jury; and that the judgment should therefore be reversed, and a new trial ordered.”
    The cause was tried a second time, before Mr. Justice Robertson and a Jury, on the 3d of April, 1861, and the Jury rendered a verdict in favor of the plaintiffs. The defendarits moved at Special Term to set aside the verdict, on the ground that it was against evidence, and because of errors of law, which motion being denied, and judgment having been entered on the verdict, the defendants took the present appeal.
    
      D. Hawley and William Curtis Noyes, for the defendants, (appellants.)
    I. It was error to admit:
    1. Testimony as to the resale of the lead, and the account made up against the defendants, for plaintiffs had not shown any right to charge defendants for a deficiency on a resale, and no notice of the time, place or mode of such resale had been given defendants. (Wheeler v. Newbould, 16 N. Y. R., 400.)
    
      2. Answers to questions, whether there was any difference in quality or value between lead branded Walkers, Parker, Walker & Co., and that marked or branded Walkers, Parker & Co.; or whether one would designate, with the same certainty, soft lead cast by the said firm, as the other. These do not in the least affect the question, whether there is any difference in quality or value between either of those brands, and lead branded “ Walker, Parker & Walker,” or whether either of those brands would designate with equal certainty soft lead branded “ Walker, Parker & Walker.” If they did, it would be wholly irrelevant:
    3. The inquiry as to how lead manufactured by Walkers’ houses was spoken of generally by persons who alluded to it. Bo such custom of speech, unless brought home to the knowledge of the defendants, should be allowed in proof. Besides, what may be used in loose conversation, is no criterion as to what would be used in a formal contráct-
    il. It was error to exclude :
    1. The conversation that passed on the subject of this sale, prior to the actual delivery of the sale note, for this was competent as part of the res gestee, (Gray v. Harper, 1 Story R., 574,) and also admissible to show misrepresentation or fraud. If there was any ambiguity in the term “ Walker, Parker & Walker brand,” it was made so by other proof admitted at the trial, in which case declarations of parties as to their intention are admitted in evidence. (Doe v. Hiscocks, 5 M. & W., 363 ; Doe v. Needs, 2 Id., 129 ; Goldshede v. Swan, 1 Exch., 154.):
    2. The inquiry in regard to the representations of the agent, that the lead was fib for making white lead, and would sell for that purpose, when it would not.
    III. It was error to refuse to nonsuit the plaintiffs, and dismiss the complaint.
    1. It was perfectly competent for the parties to make a contract for the sale of lead branded or marked “ Walker, Parker & Walker,” so that lead with any other brand upon it, though of equal quality and of the same persons’ manufacture, could not be legally tendered in fulfillment of the contract, and the plain language of the contract cannot be annulled by such extrinsic matter as was alleged against it in this case. (Beals v. Terry, 2 Sandf., 127; Shields v. Pettee, Id., 262.)
    
      (a.) The only true construction of the bought and sold note, taken by itself, is that it was the intention of the parties to sell lead branded “ Walker, Parker & Walker,” and not merely lead manufactured by them. In construing contracts, the Court is bound to give effect to the whole of the contract. Ho effect can be given to the position of the words and the dash with the pen after, except that they indicate an intention to sell lead branded “ Walker, Parker & Walker,” only. (Pothier, part I., c. 1, f. 1, art. 7; Rutherforth’s Institutes of Natural Law, B. 2, ch. 7, 2 Parsons on Contracts, 16 ; Syers v. Jonas, 2 Exch., 111; Morrell v. Fisher, 4 Exch., 591; Stokes v. Stokes, 1 Lev., 272.)
    
      (b.) If there was any doubt about the construction of the bought and sold note, from its ambiguity, in meaning either the brand or the manufacture, evidence was admissible in explanation, and the evidence shows conclusively that it was the intention of the parties to sell lead branded “ Walker, Parker & Walker.” Experts, dealers in the article, testify, without contradiction, that there is a substantial difference between the brand inserted in the bought and sold note in this case, and the brand tendered, so that the delivery of the latter would not fulfill a contract to deliver the former, and their construction in a matter of this kind ought to be followed by the Court. (Powell v. Horton, 2 Bing. N. C., 668, 3 Scott, 110; Lovatt v. Hamilton, 5 M. & W., 639.)
    2. Plaintiffs must prove that the lead tendered was English lead, and, to be English lead, it should be made of English ore; but no proof of this is given.
    3. In a sale like this, of an article to arrive, if the article for any reason does not arrive, there is no sale that either party can enforce. Proof, therefore, that no such article is in existence, so that the vendor could not go into the market and purchase it, to fulfill his contract, has no applicability to such a case. The article mentioned in the contract and in the complaint as the one sold to the defendant, not being- on board the ship Providence, not arriving here, and not being tendered to the defendants, there is no contract to be enforced.
    4. Ho legal notice was given to the defendants by the plaintiffs of their intention to sell the lead for the account of the defendants, because no notice of the place, time or mode of sale was given.
    IV. The Justice erred in several particulars in his charge to the Jury, to which exceptions were taken by the defendants, and also in his refusal to charge, as requested by the defendants. -
    There is error in the charge as to the amount of the damages founded on the error in-the complaint and account of sale. The sale was of 150 tons; this, by our statute, (2 Rev. Stat., 5th ed., 828, §§ 7,13,) would be 300,000 pounds. The charge against the defendants is for 345,276 lbs., which is 45,276 lbs. more than the contract called for, and the excess is included in the verdict aud judgment.
    
      Samuel E. Lyon, for plaintiffs, (respondents.)
    I. The true point at issue was this, was the lead such as plaintiffs agreed to furnish and defendants to accept ? and this was a question of fact for the Jury.
    
      (a.) Whether parties have agreed as alleged is a question of intent.
    (5.) Parol evidence is admissible to explain words in a written contract, of technical meaning, or which are indefinite. (1 Greenl. Evid., $ 288.)
    (c.) The intent of the parties, in every case of ambiguity or indefiniteness of expression, where acts are equivocal, or where terms are employed having a technical or conventional meaning, is to be ascertained by the Jury. And to complete a contract it is necessary that the parties should assent to the subject matter in the same sense. (1 Greenl. Evid., § 277, note 2; Hazard v. N. E. Mar. Ins. Co., 1 Sumn., 218; 8 Peters, 557; Potter v. Hopkins, 25 Wend., 417; Parks v. General Interest Ins. Co., 5 Pick., 34; Jackson v. Stanley, 10 Johns., 133; Sheldon v. Benham, 4 Hill, 129; Wigram on Ext. Ev., 57, 58, 118 ; Hite v. State, 9 Yerger, 357; Day v. Trig, 1 P. Will., 286; Tudor v. Terrell, 2 Dana, 47; U. S. v. Breed, 1 Sumn., 159; Thompson v. Sloan, 23 Wend., 71.)
    
      (d.) In case of a sale it is only required that the thing sold should be specific and capable of certain identification. An honest error as to the price, or as to the substantial and essential qualities of the thing sold, not as to its mere worth or condition, may annul the sale. (1 Pars, on Cont., 439; Story on Oont., §§ 412, 417, 779.)
    II. The Court were right in submitting to the Jury the inquiry as to what lead was in fact sold and purchased.
    III. The evidence fully sustains the verdict.
    IV. The defendants could not legally set up the absence of the particular brand they pretended to have expected, because they put their refusal to receive it on a totally different ground, not founded in fact.
    V. There was no error in the refusal of the Court to dismiss the complaint. Under the decision of the Court of Appeals the Judge was bound to submit the case to the Jury.
    VI. neither of the exceptions to the charge is well founded.
    If the lead was of at least a medium quality, and was merchantable, it answered the contract. Cleu v. McPherson, 1 Bosw., 480.)
    The rule of damages is correct. The sale was after notice, and in the usual way by broker. (Crooks v. Moore, 1 Sandf., 297; Stanton v. Small, 3 Id., 231; Sedgw. on Dam., 281. •
    VII. Hone of the exceptions to the plaintiffs’ evidence, or to the charge of the Judge, were well taken.
    By the Court — Robertson, J. The only difficulty in construing the contract in this case arises from attributing to the words “ Walker, Parker Sc Walker brand ” the meaning of “stamped with the names, Walker, Parker &c 
      
      Walker." For that reason alone, the defendants refused to receive soft lead, manufactured in England by a firm, of which two members were named “ Walker" and a third, "Parker," and who transacted business at different places, under various partnership titles, in which "Walker" and "Parker ” were predominant, and which had arrived on board of the vessel named in such contract.
    The defendants went out of the words of the contract, according to their literal interpretation, in order to establish, by extrinsic evidence, that “ soft English lead,” used therein, meant lead made of English ores. And in attempting to exert a rigorous construction of the rest of the contract they fell into some absurdities. The term "brand," employed in such contract, was, according to all lexicographers, originally and strictly confined to burning with a hot iron, (Johnson’s, Worcester’s and Webster’s Dictionaries, word “ Brass,”) a thing which is never done with pig lead. In commerce, such word, by usage, has come to mean a mark, designating either origin or qualify, and, ultimately, the names of manufacturers, or places of manufacture. The case of Powell v. Horton, (2 Bing., [N. C.,] 665, 671,) is a striking example of the effect, of the peculiar commercial meaning of terms. There would have been no great difficulty, besides, in printing the names in question on the lead, if that had been all that Avas necessary; although it is difficult to see what particular advantage that would have been to the purchaser. The defendants themselves seem unconsciously to have felt the pressure of the frivolousness of an objection resting on such a basis, since they attempted to prove that there Avas a peculiar kind of lead, known in the New York market as I he “Walker, Parker & Walker” lead, and so branded. This was a palpable departure from a strict construction of the term “brand,” which must mean either actually branded with a particular mark, or else a particular kind. That question, however, Avas submitted to the Jury, who found there Avas no lead known by that designation in the New York lead market; consequently, the parties, if they intended to bargain for such lead, must have meant to make a contract for what did not exist, a conclusion which must be escaped from, if possible, by any means.
    But the law is not so entirely destitute of means to sustain the contract as an active and living one. It furnishes two rules of interpretation, which, when the application to language of its ordinary signification, without regard to extrinsic circumstances, fails to communicate to the contract, which it embodies, any vitality, may be applied. Besides the rule which permits extrinsic circumstances to be introduced to explain the meaning attached to special words in a particular trade or course of dealings, there is another, which enables us, when part of a description does not correspond with an existing subject, while the rest does, to reject the former, unless the part so rejected is applicable to something else, and the rest is not. It is only when there is nothing to determine to which of two subjects both parts of the description may be applied, that the whole is to be rejected. In this case, however, it was established that there was no lead branded “Walker, Parker & Walker ” in the world, but there was a cargo of soft English lead, manufactured by Walkers, Parker & Oo., and so branded or marked, on board of the vessel named in the contract, on its way to this port.
    I am fully aware, that in the view taken of this case by the Court of last resort, when formerly before it, stress was laid upon the inquiry, whether there was any evidence of an understanding, in the trade, of the meaning of “Walker, Parker & Walker brand.” But, it is clear to me that, by the similar stress laid in the opinion of the Court, upon the non-existence of any lead known in the trade, as impressed with that name, it was deemed necessary to show the impossibility of complying strictly with those terms, according to their assumed signification, before allowing evidence that dealers understood something else by them. Yet, it has’always been held, that parties dealing in a particular trade, must be understood to use the language of it, and not of common conversation. The fact, that no such brand as designating the •kind of lead, was known to commerce, would be a good enough ground for rejecting it from the description as a mistake or useless part. (Wig. on Ex. Ev., 99; Burr v. Broadway Ins. Co., 16 N. Y. R., 267.) But if the cargo actually on board of the vessel named, answered the rest of the description, proof that the trade understood “brand” to be equivalent to “ manufacture,” and “ Walker, Parker & Walker” to mean the house in question, would make such cargo answer fully the whole description in legal interpretation of it.
    It would seem from all the circumstances of the case, that the parties intended to deal rather in the particular cargo, than in any lead marked “ Walker, Parker & Walker,” or known by that designation. The defendant could, with more propriety, have' rejected other lead so stamped, than the cargo' in question, not so marked. By the purchase of merchandise at sea, he was entitled to .a merchantable article of medium quality. (Cleu v. McPherson, 1 Bosw., 480.) If “ Walker, Parker & Walker brand,” indicated a better quality or different kind, it would have operated as a warranty, and-not as a description. If the object had been to purchase simply, lead of a particular kind, there would have been no object in naming the vessel. Both parties were ignorant of the brand on the lead, and in that respect dealt upon equal terms: clearly, if the instrument had been an assignment instead of a contract, a transfer of so many tons of soft English lead on board of the Providence, on its way from Newcastle, “ Walker, Parker & Walker brand,” woidd have transferred the cargo in question. The plaintiffs in such a case, could not have set up as a defense, that the lead was not marked with those names.
    It appears to me, therefore, with due respect to the opinion of the learned judge, who passed upon this case in the Court of Appeals, that it could have been disposed of by rejecting the name of the brand as a mistake, and no part of the description. If, however, it was necessary' to give those words some effect, and the evidence in the case showed that they were neither unmeaning nor a mistake, on more full deliberation, since the trial,T have not been able to perceive hotv the case could have been submitted to the jury upon that question of interpretation, otherwise than it was. In regard to that, therefore, I must leave the* case to a comparison of the charge with the opinion of the Court of Appeals, which I think it follows.
    Evidence of a resale of the lead by the plaintiffs, and a statement of loss thereon, rendered to the defendants, was objected to on the trial. But such sale, after due notice, was at least a fair test of the value of the article, such notice being charged in the complaint and not denied in the answer. The statement admitted was admissible at all events, as a computation. The exceptions to its admission were properly overruled.
    Exceptions taken to the admission of evidence to prove three facts, were properly overruled. These were, First. The non-existence of any lead known in the lead market as Walkers, Parker & Walker brand, or any similar brand, unless manufactured by the firm in question. Second. The equality in quality and value of soft English lead, so manufactured by them, whether marked “ Walkers, Parker, Walker & Co.,” or “ Walkers, Parker & Co.” Third. The commercial designation of lead stamped either way, by ¡the terms “Walker, Parker & Walker brand.” Such evidence was admissible within the rule adopted by the Court •of Appeals, as the lead shipped and branded as it was, was manufactured by such firm, to enable the Jury to .determine, 1st. Whether, if the lead was soft English lead, ¿manufactured by the firm in question, such stamps upon it, by containing the names of “ Walker ” and “ Parker “indicated the same quality of lead and were understood by those engaged in the trade as meaning the same thing.” 2d. Whether the terms “ Walker, Parker & Walker brand,” Indicated the manufacturers only, and were equally applicable to all lead manufactured by them. And the facts which such evidence tended to prove were some of “ the surrounding circumstances,” indicating what was the subject of the contract as intended by the parties. Such evidence was therefore properly admitted.
    The following questions were put to a witness on behalf of the plaintiff, subject to an exception:
    “How was the lead, manufactured by the Walker houses, “generally known in this market?” “How was it desig- “ nated in common intercourse ? I mean, how was it spoken “of, generally, by persons who alluded to it?”
    These questions clearly pointed to the technical designation of the trade; to the habitual mode of indicating the kind of article, and on that account were proper. It is by conversation alone, whether loose or strict, that most articles get their mercantile title, which is usually adopted in a written contract. Such questions, therefore, were properly admitted. (Dana v. Fiedler, 12 N. Y. R., 40.)
    The following general question, by the defendants’ counsel, was excluded under an exception :
    “What conversation passed, upon the subject of this “ sale, prior to the actual delivery to these respective par “ ties, of the sale note ?”
    There appears to have been no preliminary suggestion as to any particular part of such conversation, or any bearing of it on any part of the sale. The question called for all the conversation, and the object of it is claimed to have been “ to show the sense which the parties attached “ to a particular term in the contract.” It is very true, that where a written contract leaves its meaning doubtful, evidence of extrinsic facts is admissible, to remove the apparent ambiguity, (Moore v. Meacham, 10 N. Y. R., 207,) and even the sense in which the parties understood an ambiguous word. (Almgren v. Dutilh, 5 N. Y. R., 28.) But to admit prior conversations to ascertain what the parties understood by a contract, after it had been reduced to writing, would be a violation of well established rules of evidence. Hone of the cases cited on the argument, go the length of holding that an article intended to be sold, being rendered uncertain by collateral evidence only, prior oral negotiations are admissible to prove what was intended. At all events, the question in itself was too general to render it admissible. There was no evidence of any representations as to the fitness of the article sold to make white lead, and therefore the questions in regard to that subject were also properly excluded."
    The defendants’ counsel also excepted separately to the following instructions given to the Jury:
    1st. The plaintiffs were bound to deliver Walker, Parker & Walker’s brand, if there were any articles of that name known among dealers as an article of merchandise.
    2d. Before looking elsewhere for the interpretation of the contract, the Jury must decide whether the plaintiffs could have furnished an article of a kind to have complied with the precise terms of the contract.
    3d. The negative testimony of witnesses familiar with lead, who have long dealt in it, that they never saw lead of a particular brand, may be weighed against evidence of a person that he had seen it.
    4th. Being a contract for lead to arrive, neither party knew the character of the cargo, at least there was no evidence that the plaintiffs knew how this lead was branded; therefore, both parties dealt upon terms of perfect equality.
    5th. Rather than to have the contract fall through, it is to be deemed to mean lead of a particular character, and the vocabulary of the lead market may be inquired into to show its character.
    6th. Under the circumstances of this case, the brand “ Walker, Parker & Walker,” could mean the manufacture of the Walkers & Parker, and the term “brand,” was equivalent to manufacture.
    7 th. If “ soft English lead” is considered, in commerce and in the lead traffic, to be lead manufactured in England, no matter from what ores it was made, it would be sufficient within the meaning of this contract.
    8th. The sale, without notice to the defendants of the time and place, was a test of the value of the article.
    
      
      The defendants were clearly not prejudiced by the instructions that the plaintiffs were bound to deliver articles of the kind described, if there were any known to dealers as such; and that, before -looking elsewhere, the Jury must decide whether the plaintiffs could have furnished such an article; which is exactly what the defendants contend for. Of course, the negative testimony of witnesses, if admitted at all, may -lie weighed against positive testimony, leaving their comparative weight to be decided by the Jury. There was no principle of law contained in the assertion, that where both parties were ignorant of the character of a cargo, they dealt in regard to it upon terms of equality, particularly when accompanied by the explanation, that each party supposed the other knew what kind of lead he was negotiating about. The language of the instruction as to introducing the understanding of dealers, rather than have the contract fail, is very nearly that used in Dana v. Fiedler, (ubi sup.) The charge as to the meaning of the words “Walker, Parker & Walker brand,” substantially followed' the views of the Court of Appeals in this case. The understanding in the trade of “ soft English lead,” is subject to the same rule as the -name of the brand. The testimony in regard to it was very feeble, and it was disposed of by the Jury. One witness did not think lead mined from Spanish ore was “ soft English lead;” another, that such lead was understood in the trade to be lead manufactured from English ores. There was, besides, evidence on the part of the plaintiffs to show that the lead in question was manufactured from English ores. It was made in England, which would be prima facie evidence, at least, that it was made from English ore. Besides this, the defendants, in refusing the lead, made no objection to the kind of ore from which it was made. I cannot doubt, that a fair sale of an article is a test of its value, although the party to be prejudiced thereby were not notified to be present at such sale.
    The requests urged on the trial, for instructions, were either complied with or involved the same questions as the exceptions to the charge.
    I do not think it so clear, that there was nothing produced on the trial to show that an English, instead of a Hew York ton, might not have been meant, as to entitle the defendants to a deduction from the verdict. The subject of the contract was of English manufacture, and was on the high seas, and constituted the entire invoice; there was, therefore, room for the admission of evidence to show the custom of the trade in regard to such weight. The statement of loss, rendered by the plaintiffs to the defendants, was retained by them without objection; no objection was made, on the trial, to the amount; no request to charge the Jury to the effect now claimed; no exception was taken to the charge of the Court as to the amount, but only as to the principle of liability. I think the case comes fairly within the decision in People v. Cooks, (8 N. Y. R., 67,) which held, that where a Judge was wrong in his assumption of a fact from which he deduced a legal conclusion, and the objection was only made to the latter, the correctness of the assumption could not be reviewed. The Court, in this case, assumed that it had been established that the tons meant were 2,240 pounds; the objection was only to regulating the damages by the sale. The subsequent case of Brown v. Cayuga & Susquehanna R. R. Co., (12 N. Y. R., 486,) is still closer. A defect of proof as to a fact stated in the complaint, was held not to be available, if capable of having been supplied on the trial. The appellants, without pointing out the defect, rested his case upon grounds which, if sustained, would have rendered evidence .of such fact immaterial. Proof of a custom would have cured the defect. It is not just for a party to lie by, and, after turning the whole attention of the Court and his adversary to questions of law covering the whole case, suddenly to spring a mine upon him, upon appeal, by taking advantage of an oversight in proving a minor fact. The objection also was not made on the trial, or on the motion for a new trial, and now comes too late. (Mabbett 
      v. White, 12 N. Y. R., 442; Rice v. Hollenbeck, 19 Barb., 664; Pepper v. Haight, 20 Id., 429.)
    Upon a full examination of all the decisions on the trial, and mature reflection, I am satisfied that no errors were committed prejudicial to the defendants, and properly objected to by them. The: judgment appealed from must, therefore, be affirmed absolutely, with costs.
   Moncrief, J.,

(after stating the facts.) The contract itself seems plain enough; it provides clearly for the sale of a certain quantity and description of lead then on board a particular ship, on its way to New York from Newcastle; an ambiguity arises in consequence of the extrinsic facts that no such “brand” marked lead was known in the lead market of this country, or in England, and no such firm existed in England as “ Walker, Parker & Walker.”

The Court of last resort have held that testimony having been given, tending to establish those extrinsic facts, the question should have been submitted to the Jury, to determine what was the “ common intention of the parties,” at the time of the making of the contract; and, as I understand the opinion of that Court, furnished by the counsel for the respondents, they held also, upon substantially the same testimony as now produced, that the contract clearly called for “soft English lead of the manufacture of Walkers, “Parker, Walker & Co.” (2 Bing., N. C., 665, 671.) It would seem to be quite clear that both parties could not have met upon the understanding or intent, the one to deliver and the other to receive an article with a specific brand or mark, of which brand or mark neither of the parties had ever heard, and which, in point of fact, did not exist; and that the contract should be held to mean “soft English lead,” then on board the ship Providence from Newcastle, of the manufacture of the well known lead manufacturers, Walkers, Parker, Walker & Co., with such mark, stamp or brand upon it as they usually put upon their lead sent to this market; otherwise the contract could be satisfied with lead with such brand mark upon it, though not of tfie manufacture of a firm of “Walker, Parker & Walker.” It was held in Loomis v. Jackson, (19 Johns., 449,) that the words “lot Ho. 51 ” might be rejected as surplusage, the description being sufficient without those words, it not appearing that the grantor ever owned any land in lot Ho. 51, and as it did appear that he did own a parcel of land known as lot Ho. 50; and the Oourt cite Oro. 0., 548, a case in which the deed was of seventy-eight acres of land, lately in the occupation of B, and it happened that the same never was in the occupation of B, and it was held that the land sufficiently passed; for, said the Judges, the addition of a falsity shall never hurt where there is any manner of certainty without it; (and see other cases there cited, and Wigram on Ext. Ev., 99.)

The question put to David Smith, one of the defendants, “What conversation passed on the subject of this sale, prior to the actual delivery of the sale note ? ” being objected to, was overruled and excluded; in my opinion, properly so. There was no dispute as to the fact that a contract had been entered into; it had been reduced to writing. Heither the declarations nor the conduct of the parties, were important or admissible with a view to the construction to be given to the words of their agree- . ment. To have allowed the question, clearly might have led to the contradiction or variance of the plain terms of the agreement, or tended to control its legal operation; and this is not permissible. (2 Seld., 64; 5 Hill, 437.) The contract being made obscure or ambiguous by extrinsic facts, “ the usage of trade and the circumstances surrounding the transaction in question,” furnished the evidence touching the subject, to which the contract related, and interpreted or removed the doubt as to the meaning of the words “Walker, Parker &c Walker brand.” The evidence' admissible in such a case is, to ascertain the nature of a contract in the absence of clear and unambiguous words or stipulations, and is not to contradict or vary it in the slightest degree. It is, to discover upon what common intention the minds of the parties met, so as to be enabled to say what contract was made between them. The conversation had by or with the defendant, Smith, tending to show his intent, was not admissible.

The other exceptions in the case, are either embraced by the opinion delivered in the Court of Appeals, or are untenable, except the one relating to an excess of the verdict over and above what the law allows. The statute has prescribed what shall constitute a ton. The contract in question was made, and to be performed within the.city of Yew York. A complainant under such a contract, would be precluded from showing that the parties intended to contract for the delivery of lead at the weight of 2,240 pounds to the ton. (Many v. The Beekman Iron Co., 9 Paige, 188.)

The point does not seem to me to have been taken upon the trial; and, it is said, is first presented upon the hearing of this appeal; it would appear from the concluding part of the charge of the learned Judge, that the counsel for the respective parties upon the trial must have conceded the correctness of the statement of the plaintiffs’ claim. It is plain that the Court so understood and treated it, in submitting- the ease to the Jury. A manifest error, however, having been made in preparing such statement of claim, being based upon 2,240 pounds, when it should be upon 2,000 pounds to the ton, the difference should be .deducted from the verdict. Upon the plaintiffs (the respondents) remitting such difference from the amount of the judgment, .the judgment and order denying the motion for a new trial should be affirmed, (Many v. Beekman Iron Co., 9 Paige, 188; Code of Pro., § 330;) otherwise a new trial should be ordered, and the. judgment be reversed with costs to abide the event.

Judgment and order affirmed.  