Obenauer v. Solomon

Carpenter, J.

(after stating the facts). We are asked to reverse the judgment upon several grounds.

1. Construction of the writing. It is.defendant’s contention that the writing, properly construed, did not impose upon him any obligation; that he was at complete liberty to refuse to sell the timber to any purchaser whom plaintiff might procure within the 10 days mentioned therein. We deem it sufficient to say that in our judgment this contention cannot be maintained, for, if so, it follows, as stated by the learned trial judge, “that the paper amounted to nothing in the nature of contract rights, or contract relations between Mr. Solomon and Mr. Obenauer.” The court very properly refused to permit witnesses to testify what was meant by the words in the writing: “You may have ten days from this date in which to place the stock.” The authorities relied upon by defendant, holding evidence of usage admissible to prove what is meant by expressions in contracts, have no application. The excluded testimony was not of that character. The ruling of the court merely denied the right of a witness to testify to the proper construction of á writing. Clearly this ruling was correct.

2. Rulings relating to the admissibility of testimony. *574 It is contended that the trial court erred in permitting plaintiff to prove that at the time the memorandum was executed the defendant told him to notify him (defendant ) if he found a purchaser by sending such notice to Au Sable, and that the place of the delivery of the timber was the dock at Au Sable. It is insisted that this testimony was inadmissible because it tended to vary the terms of the writing, and also because, as the contract was one for the sale of goods for more than $50, none of its terms could rest in parol. It is true that the contract contemplated the sale of goods for more than $50. Plaintiff was to find a purchaser who would enter into such a contract. This circumstance did not however require the contract between the plaintiff and defendant to be in writing. Waterman Real Estate Exchange v. Stevens, 71 Mich. 104 .

Was the testimony inadmissible because it tended to vary the terms of the writing ? That this objection is not good, in so far as it relates to the testimony respecting the place where the notice should be sent, is settled by our decision of Town v. Jepson, 133 Mich. 673 . See, also, Liggett Spring & Axle Co. v. Michigan Buggy Co., 106 Mich. 445 ; National Cash Register Co. v. Blumenthal, 85 Mich. 464 .

Was it permissible to prove that defendant stated that the timber would be delivered at a dock in Au Sable? The writing states, ‘c The terms of shipment to be the removal of the lumber as fast as 500 M. feet is cut and piled onp the dock.” What dock? That is a question which arises in interpreting the document. There are many docks to which this description will apply. While it is true that as a general rule the declarations of a party are not admissible to prove his intention (see 4 Wigmore on Evidence, § 2471), there is this exception:

“They are receivable to assist in interpreting an equivocation, — that is, a term which, upon application to external objects, is found to fit two or more of them equally.” 4 Wigmore on Evidence, § 2472.

*575 The testimony under consideration comes within this exception and was properly admitted.

It is also insisted that the contract between the plaintiff and defendant was one which could not be performed within a year; that its terms should therefore be in writing, and that for this reason the testimony under consideration was improperly admitted. This objection was not made in the trial court and we decline to consider it.

The only authorized agent of the purchaser went to Alpena before the lapse of said 10 days for the purpose of closing up the deal with defendant. Plaintiff was permitted to testify to a conversation with said agent which tended to prove his willingness to buy the timber on the terms set forth in the memorandum signed by defendant. Subsequently defendant offered to prove that said agent made inconsistent statements at a later time and place. This testimony was excluded. Defendant contends that each of these rulings cannot be correct. We think Otherwise. The ruling admitting the testimony was clearly correct. It had a tendency to establish the claim of plaintiff that he procured a purchaser for defendant’s timber. What the purchaser may have stated later was clearly hearsay and inadmissible.

3. Measure of damages. The evidence proved that there was actually delivered, in the season of 1903, to the purchaser heretofore mentioned, not the amount of 3,000,000 feet stated in the writing delivered by defendant to plaintiff, but a little less than 2,000,000 feet, and defendant insists that this lesser amount, instead of the 3,000,000 feet, affords the proper basis for measuring plaintiff’s damages. We think otherwise. By the writing defendant obligated himself to sell 3,000,000 feet. That obligation would not be affected by the circumstance that in his subsequent dealing it was impossible or inconvenient to deliver so large an amount. In this connection we consider defendant’s complaint that plaintiff was improperly permitted,to answer the question:

*576 “ Q. What was a fair and reasonable compensation per thousand feet commission for procuring a purchaser for this Norway ? ”

The answer was 25 cents a thousand. We are not called upon to determine whether or not this testimony \yas properly admitted, for its admission did not prejudice defendant. Under the undisputed testimony in the case, as heretofore indicated, the law of custom determined the rights of the parties and determined that plaintiff was entitled to inspect this timber and to receive for his services 25 cents per thousand, and he was permitted to recover on this theory.

4. Premature action. It is insisted that, since the contract was one contemplating the sale of timber to be delivered during the season of 1903, the suit could not properly be commenced in November, 1902. It is undoubtedly true that if the contract had been performed plaintiff would have had no right of action until he had inspected the timber during the season of 1903. But defendant by refusing to deal with the purchaser procured by plaintiff had repudiated that contract. By subsequently selling the timber through another broker he had intentionally disabled himself from performing it. Under these circumstances it was unnecessary for plaintiff to wait. He had a right to sue at once. Platt v. Brand, 26 Mich. 173 ; Hosmer v. Wilson, 7 Mich. 294, 304 .

No other question demands discussion. The judgment is affirmed.

Grant, O. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.