
    Hurd et al. v. Bovee et al. Bovee et al. v. Hurd et al.
    
    
      (Supreme Court, General Term, Fifth, Department.
    
    October 19, 1889.)
    1. Evidence—Parol.
    A memorandum for the sale of lumber was as follows: “Sold to B. & K. * * * 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 M. 1-inch shipping culls, to be shipped after August 25, and before Oct. 1_, at $11; and 100 M. 16%-inch and up wide coffin boards, sound common, seasoned eight months. Terms, two months. ” Held, that evidence was admissible to show the whole contract, as the memorandum failed to fix the price of the last amount of lumber, or the time of delivery, and the language, “Terms, two months, ” was ambiguous.
    2. Same.
    Evidence that the purchasers were to give their notes for the several deliveries at two months, and that the price for the last lot was $16 per thousand, does not not vary or contradict the terms of the written memorandum.
    3. Same—Relevancy.
    In an action for the price of the third lot of lumber, the defense being a breach of the contract by plaintiffs, evidence relating to the former shipments was admissible, as a necessary part of the history of the transaction, and as showing the interpretation given to the contract by defendants, and also as showing performance by plaintiffs up to the alleged refusal of defendants to perform their part.
    Appeal from judgments on report of referee.
    Action by Hurd & Hauenstein against Bovee & Kelsey, and by Bovee & Kelsey against Hurd & Hauenstein. Judgments in both actions were entered in favor of plaintiffs in the first action, and Bovee & Kelsey appeal.
    Argued before Barker, P. J., and Dwight and Childs, JJ.
    
      W. J. Peek, for appellants. N. Morey, for respondents.
   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 nouperformance 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. 0. railway charges; and 100 M. 1-inch shipping culls, to be shipped after August 25, and before Oct. 1, at $11; and 100 M. 16|-inch 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 anytime 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 Trust Co. v. Whiton, 97 N. Y. 172, and Briggs v. Hilton, 99 N. Y. 517, 526, 3 N. E. Rep. 51. The evidence on both sides shows that the provision for two months’ time, indefinite as it was, was not in 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 were 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 $16 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 defendants’ order about 60,000 feet of the shipping culls, which were accepted and paid for, as the contract provided, by the defendants’ 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 own 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 connection, 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 o.f the lumber is not mentioned in the memorandum. Later, and shortly before the 1st 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 ■tlje 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 of 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. All concur.  