Newell v. Nicholson

Contracts — Mercantile phrases — Evidence to explain — Under section 633, Code of Civil Procedure permitting evidence to be given of the meaning of terms having a local, technical or peculiar signification, the testimony of merchants and business men is admissible to explain the meaning of the mercantile phrases “Don’t sell we to exchange any goods that don’t sell; credit for same” and “Sales guaranteed” which are endorsed upon a memorandum of sale. Same — Where the plaintiff in an action to recover the entire purchase price of goods sold is defeated by the defendants upon the theory that they were only liable for the price of goods which they succeeded in selling and could return unsold goods, he cannot, in that action, claim a judgment for the balance due by defendants for goods which they had sold. (Newell v. Meyendorff, 9 Mont. 254; State v. Judge of Second Judicial District, 10 Mont. 460; State v. Board of Canvassers, 13 Mont. 34; Heed v. Poindexter, 16 Mont. 294, cited.)

Appeal from First Judicial District, Lewis cmd Cla/rke County. Action to recover for goods sold. Judgment was rendered for the defendants below by Hunt, J. Statement of the case by the justice delivering the opinion. The plaintiffs brought their action to recover the value of goods, wares, and merchandise, alleged to have been sold to the defendants. The defendants in their answer admitted the delivery of the goods to them, but denied that the sale was, as counsel expressed it, a straight sale. The defendants set up that the transaction was as follows: That the plaintiffs offered to sell the goods, which were a large quantity .of cigars, with the condition that if they were not sold within a reasonable time, plaintiffs would exchange the cigars for other goods. Defendants allege that they declined to enter into that proposed contract, but did offer to take the cigars with the condition that plaintiffs would agree to credit the defendants, whenever defendants requested it, with any goods remaining unsold, and that plaintiffs would guarantee the sale of the goods shipped to the defendants; that .is to say, in effect the contract was that the goods should be shipped to the defendants, that they should sell them, and that the plaintiffs would help in the selling thereof, and that defendants should pay for the goods sold, and that such goods as were not good sellers the defendants might return to the plaintiffs and have credit for the same. Defendants further allege that they frequently demanded that plaintiffs take back the goods unsold. Defendants admit the selling of the goods by them in the amount of $776.05, and allege that they paid thereon $650.50. Defendants also set up a small counterclaim of $9.44. In reply the plaintiffs denied that the condition pleaded by defendants was a part of the contract. It was shown by the defendants’ testimony that they did decline to make the contract as originally proposed; that is to say, with the condition that the goods unsold should be exchanged for others. They further show, in their testimony, that the plaintiff’s agent, in making out the memoi’andum of sale, placed thereupon the words: “Don’t sell we to exchange any goods that don’t sell.” With this memorandum, so indorsed, defendants declined to enter into the contract. Mr. Nicholson, one of the defendants, stated that he would not accept that kind of a proposition, but that it was the understanding that defendants were allowed to return any goods for credit that were not sold, at any time when defendants felt so disposed, or when either party was convinced that the goods could not be sold. Thereupon the plaintiffs’ agent said, ‘ ‘I will fix that, ’ ’ and added to the memorandum of sale the following words, “Credit for same. ” Some of the other sales were made, not- with the indorsement above quoted, but accompanied by the words, ‘ ‘Sales guaranteed. ’ ’ The plaintiffs brought their action for the value of all the goods which they had delivered to the defendants. The jury found against the plaintiffs, and gave a verdict in favor of the defendants for the amount of their counterclaim, $9.44. From an order denying plaintiffs’ motion for a new trial, and from the judgment, this appeal is taken. The goods were sold under a memorandum contract, which contains the following language: “We to exchange goods that don’t sell, credit for same. Part of bills in four months, balance in six months. ’ ’ This we contend is a straight sale of goods to be paid for in four and six months, with the privilege of exchanging goods that don’t sell, for other goods that defendant might wish to get. The bill became due in four and six months whether the goods were sold or not. If we construe the contract under defendants’ theory, it is a contract of “sale or redimí, ’ ’ under which the title passes to the purchaser. {Moss v. Sweet, 3 Eng. Law & Equity 311-71; Sturm v. Baker, 150 U. I. 312, in which it was said: “In this class of cases the title passes to the purchaser subject to his option to return the property within the time specified, or a reasonable time.” {Schlissenger v. Blumenthal, 9 E. I. 578; see, also, McKinney v. Bradley, 117 Mass. 321; Martin v. Adams, 104 Mass. 262; Ca/rter v. Wallace, 32 Hun. 384; Dearborn v. Turner, 16 Me.'17; Speckler v. Marsh, 36 Md. 222; Perkins v. Douglas, 20 Me. 317; Ohamberlaim, v. Smith, 44 Pa. St. 431; Newmark on Sales, §§ 193-310; Story on Sales, § 249; Cor-bin’s Benjamin on Sales, §§913-14-15; Jamisons. Gregory, 4 Met. (Ky.) 367; Addison on Contracts, 532; Wharton on Contracts, §§ 590-611; 21 Am. & Eng. Éncy. of Law, 647.) If the contract is construed to be a contract of “sale or return, ’ ’ the defendant did not exercise his option to return the goods within a reasonable time. As long as the conditional right to rescind the sale by a return existed, the sale was conditional and not absolute. (Story on Sales, § 313a, and cases cited, p. 366; Benjamin on Sales, 560; Dewey v. Erie Borough, 53 Am. Dec. 533; Roy v. Thompson, 59 Am. Dec. 187.) Until the sale became absolute by defendants’ failure to exercise or refusal to exercise the return option, the remedy of the plaintiffs was on the particular contract. {Boswell v. Bicknell, 17 Me. 344, quoted in 69 Am. Dec. 120; Story on Sales, 313a.) The evidence of merchants as to the meaning of technical trade terms was clearly competent, and the only method of interpreting them. (Compiled Statutes, § 628-, p. 225; Greenleaf on Evidence, (13th Ed.) § 280, p. 325, and notes, § 298; Reamer v. Nesmith, 3é Cal. 625; G. P. R. Go. v Beal, 17 Cal. 151; Gallaban v. Stanley, 57 Cal. 176; Myers v. Tibals, 72 Cal. 278.)