author: McCunn, J. Monell, J.

text:
    ANNA BARRETT, Plaintiff and Appellant, v. THE THIRD AVENUE RAILROAD COMPANY, Defendants and Respondents.
    The rule is well settled, that questions of negligence depending upon conflicting evidence, or on inferences deducible from circumstances in regard to which there is room for a fair difference of opinion, should be submitted to the jury.
    If the negligence of the defendant contributed to the injury, it is no defence that the negligence of another also contributed to the injury.
    Newly discovered evidence which is merely cumulative will not authorize the granting a new trial; nor where it is sought to impeach a witness.
    Where two city railroad tracks cross each other at an acute angle, and the distance to pass out of danger is sixty-five feet, and the cars are frequently passing such crossing, the mere fact of a car passing such point at the usual rate of speed, of say five miles ,an hour, should of itself be enough to impute negligence. Per Monell, J.
    Prudence, and a due regard for the safety of passengers, should not be balanced by the few seconds of time gained to a company in going too rapidly over a place exposed to so great danger. ‘Per Monell, J.
    In an action by a passenger injured in a collision between a Third and Fourth avenue car, where it appeared that the car of the former road was being driven at a rapid rpte, until it came to the crossing, held evidence of negligence, and that the driver had no right to experiment or venture upon the probability or possibility of crossing and avoiding the collision. Per Monell, J.
    The rule now is, that if upon the whole evidence it would have been proper at the trial to have taken the case from the jury and directed a verdict, then the court will set the verdict aside, if found against what such direction should have been. Per Monell, J.
    If no motion is made at the trial to have a verdict directed, it cannot be urged for the first time on appeal. Per Monell, J.
    Before Monell, McCunn, and Fithian, JJ.

      [Decided October 30, 1869.]
    This action was for injuries sustained by the plaintiff while riding down-town as a passenger in a Third avenue car, which came into collision on the crossings just below the Cooper Institute with a Harlem Railroad Adams Express freight car going up on the Fourth avenue track.
    The case was tried before Mr. Justice Monell and a jury. The jury found a verdict for plaintiff.

      A motion was afterwards made for a new trial upon the case as settled, and upon affidavits before Mr. Justice Jones, who granted the motion, and from this order the present appeal is brought.

      Mr. E. F. Hall for appellant.
    “ The law, in respect to the carriers of passengers, holds them to the highest responsibility. They are required to exercise the utmost care, and to adopt all known and tested improvements calculated to secure the safety of. passengers ” (Ingalls v. Bills, 9 Metcalf, 1; Caldwell v. Murphy, 1 Duer, 241).
    “ Passenger-carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, for the utmost care and diligence of very cautious persons” (Bowen v. The Central R.R. Co., 18 N. Y. Rep., 410; Deyo v. The Central R.R. Co., 34 N. Y. Rep., 9; Meverick v. The Eighth Avenue R.R. Co., 36 N. Y. Rep., 381).
    As no evidence was given of any release or receipt of money in satisfaction of damages, or of any written or verbal agreement or understanding to that effect, the Court, after fully stating the law, charged the jury that what had been proven did not amount to a discharge of the Harlem Company, and was not, therefore, a defence to this action. To this the defendant excepted.

      “A release of one of several coveiiantors will not discharge his co-covenantors, unless it be a technical release under seal; a parol agreement to release will not have that effect” (De Zeng v. Bailey, 9 Wendell, 336),

      “ It is agreed on all hands that in trespass against several, the plaintiff may enter, a nolle prosequi as to one, and that will not discharge the other” (Noke v. Ingham, 1 Wilson’s Reports, 90).
    “ In all cases of actions founded upon tori, which are in their nature joint and several, whether the defendants join or sever in their pleading, the plaintiff may, before or after verdict, enter a nolle prosequi as to some of them and proceed to judgment against the rest.”

      Every point as to which there was any possible doubt or dispute, or which could have any bearing on the question of negligence, was left by the court to the j ury.

      “ The rule is well settled that it is a matter of right in the plaintiff to have the issue of negligence submitted to the jury when it depends upon conflicting evidence, or on inferences to be deduced from a variety of circumstances, in regard to which there is room for fair difference of opinion among intelligent men” (Wolfkiel v. The Sixth Avenue R.R. Co., 38 N. Y. Rep., 49; Ernst v. Hudson River R.R. Co., 35 N. Y. Rep., 9, and 39 N. Y. Rep., 61).
    It is no defense to this a'ction that the negligence of the Harlem Company contributed to bring about the collision.
    “ If the negligence of the defendant contributed to the injury, it is no defense that the negligent act of another contributed thereto, if the injury would not have occurred but for the negligence of the defendant. The defendant, it is manifest, is only made responsible for the result of his own wrong. That wrong produced the injury, and although it would not have occurred but for the wrongful act of another, that circumstance furnishes no excuse for the defendant so far as an innocent injured party is concerned” (Clark v. Eighth Avenue R.R. Co., 36 N. Y. Rep., 138 ; Maverick v. Eighth Avenue R.R. Co., 36 N. Y. Rep., 378; Webster v. Hudson River R.R. Co., 38 N. Y. Rep., 260).

      Mr. Clarkson N. Potter for respondents.
    The plaintiff having been paid by, and having discharged, the Harlem Company, has satisfied her claim against the defendants also.
    Satisfaction as to one of two tort-feasors is satisfaction as tc both (Knickerbocker v. Hawes, 8 Cowen, 111; Livingston v. Bishop, 1 Johnson, 293; Brown v. Kencheloe, 3 Caldwell, 192).
    And this, independent of any release.
    “ Nonsuit, release, or other discharge of one trespasser, discharges the rest” (Bacon’s Abridgment, tit. Release, p. 625).

      “ The defendants are to be treated as joint-trespassers sued separately; in which case plaintiff can have but one satisfaction. And having either received payment from Hawes, or discharged him, without payment, that act must be considered a satisfaction or release of the damages as to both” (Knickerbocker v. Hawes, 8 Cowen, 111).
    “ While in respect of any of the defendants the right of action is gone or suspended, their joint liability being at an end, the other tortfeasors ’ may avail themselves of this suspension or discharge, whether it be produced by the act of the party or by the operation of law at the instance of the plaintiff” (Robertson v. Smith, 18 Johns., 481).
    The defendants were not in fault as to this accident. The accident was wholly attributable to the gross negligence of the Harlem Company and its driver.
    The pretence that the defendants’ car was driven fast, and recklessly rushed over the crossing, is ingenious in counsel, but fallacious.
    The judge erred in placing before the jury, as “ an important element,” the rate of speed of defendants’ ear before it had arrived within the limits of danger, in his charge that if the jury believed that “ the defendants’ driver saw the large car in time to break up and avoid the collision, he was bound to do so,” and in his remarks upon the “ experiment or venture.”
    The judge erred in refusing to charge that, “if the jury find in this case that the accident was occasioned by gross negligence or carelessness of the Harlem Railroad car-driver, and that ordinary care and prudence on his part would have avoided the collision, and that the defendants’ driver did all he could, under the circumstances, to avoid it, the action cannot be maintained; that if the jury believe the defendants’ driver, finding his car in a position of danger, thought he could avoid the danger by accelerating his speed, and did accelerate it accordingly, and if the facts show that if the Harlem Railroad car had slackened its speed the collision would have been avoided, no blame can be legally attached to the defendants, and they should, have a verdict; that if the jury believe there has been a settlement with the Harlem Railroad Company for the injury claimed in this action, no matter how slight the consideration, this action cannot be maintained against the defendants.”
   McCunn, J.

This action is brought for injuries sustained by the plaintiff while'riding as a passenger'in defendants’ car; a car 'which came in collision on the crossings, just below the Cooper Institute, with a Harlem freight car, going up on the Fourth avenue track.

The trial was had before Mr. Justice Monell and a jury.

A motion was afterwards made for a new' trial upon the case before Mr. Justice Jones', who granted the motion; and now we are sent the record from Special Term to be inspected, and after' such inspection we are to say which of the judges below has committed error.

After as close and fair an examination as some of us are caparble of bestowing upon any subject, we have arrived at the conclusion that the judge at Special Term Avas clearly wrong in setting aside the verdict of the jury, and that consequently the case at circuit was correctly tried, and all questions of law properly disposed of. > ' -

It will be seen, after disposing of all minor points, and after a careful examination of the' facts, that the real question in the case (and I must say I can see but one question) is, whether there was negligencé on the part of the-Third avenue road, and whether the question of such negligence was fairly submitted to be passed upon by the jury. , •

There is no dispute but that at the time of the collision the Third avenue car was going at an unusual rate of speed. Indeed,' this was expressly admitted by the defendants’ counsel on the trial; and there-is just as little doubt but that the Harlem car was going slowly, not trotting nor walking, but a slouching gait, between the two. It is also undisputed that, by the uniform custom and practice of the drivers and conductors of both railroads, the Harlem Company had the right of way.

How, the evidence on the part of the plaintiff goes to show that the Harlem freight car was much nearer the crossings where the accident occurred when they saw each other, than the Third avenue car.

This being so, it was gross negligence on the part of the Third avenue car not to stop until the Harlem car had passed.

Indeed, I fully agree with the plaintiff’s counsel that the accident was the result of a reckless and wicked horse-racing experiment on the part of the Third avenue driver.

Dooley says (and he is a fair witness) that, when he first discovered the Fourth avenue car, he should judge that he was one hundred and fifty or two hundred feet from it. He says that some distance above the crossing the conductor came out and hurried up the drived, who accordingly whipped his horses, and on this point he is not contradicted. On the contrary, he was corroborated by Morrill, by Berner, and by Pruden in his statement, and he says that in his judgment the forward part of the small car was struck.

Indeed, the learned justice who tried the case at circuit left every point as to which there was any possible doubt or dispute, or which could have any bearing on the question of negligence, to the jury; and no rule is better settled than that which requires to have the issues of negligence submitted to the jury, when it depends upon conflicting evidence, or on inferences to be deduced from a variety of circumstances in regard to which there is room for fair difference of opinion among intelligent men (Wolfkiel v. The Sixth Avenue R.R. Co., 38 N. Y. Rep., 49; Ernst v. Hudson River R.R. Co., 35 N. Y. Rep., 9, and 39 N. Y. Rep., 61).

It will not be seriously urged that the negligence of the Harlem Company contributed to bring about the collision, and that such negligence is a bar to this action. In discussing this branch of the case, I cannot do better than quote the language of Judge Grover, in the case of Clark v. The Eighth Avenue R.R. Co., 36 N. Y. Rep., 138, where he says: “ If the negligence of the defendant contributed to the injury, it is no defence that the negligent act of another contributed thereto, if the injury would not have occurred but for the negligence of the defendant. The defendant, it is manifest, is only made responsible for the result of his own wrong. That wrong produced the injury, and although it would not have occurred but for the wrongful act of another, that circumstance furnishes no excuse for the defendant so far as an innocent party is concerned.”

There is no virtue in the point urged by the defendants to the effect that a new trial, on the ground of surprise, ought to be granted upon the affidavits attached to the case.

The evidence of Pruden was offered in rebuttal, and the defendants had no right to open the question again if they had a thousand witnesses present to contradict Pruden when he left the 'stand. The new evidence, therefore, for the introduction of ■which a new trial is sought, is merely cumulative, consequently there is no law for the granting of a new trial on the grounds presented (People v. Superior Court, 10 Wen., 285).

Though a witness proves a fact to the surprise of the other party, and though by mistake he was not cross-examined, nor was evidence given to contradict him or any observation made on his evidence, the court will not grant a new trial. Such was the rule held by Lord Ellenborough in Bell v. Thompson (2 Chitty’s Rep., 194).

Indeed, a verdict is never set aside to give the party an opportunity of impeaching the credit of witnesses sworn at a former trial (Bunn v. Hoyt, 8 John., 255).

And to set aside a verdict when the testimony is conflicting and the question doubtful, would be not an exercise of discretion, but a gross usurpation of power (Cothran v. Collins, 29 How. Pr. Rep., 155).

I fully concur with the learned justice who tried the cause where he says that “ the law in respect to tire carriers of passengers holds them to the highest responsibility. They are required to exercise the utmost care, and to adopt all known and tested improvements calculated to secure the 'safety of passengers.” Story says : “Passenger-carriers bind themselves to carry safely those whom they take into their coaches, as far as human care. and foresight will go, that is, for the utmost care and diligence of very cautious persons.” And this- is the rule laid down in Bowen v. The Central R.R. Co., 18 N. Y. Rep., 410; Maverick v. The Eighth Avenue R.R. Co., 36 N. Y. Rep., 381.

There is no virtue in the point raised by the defendants to the effect that the plaintiff having been paid by the Harlem company something, such payment has satisfied the claim against the defendants. ,

The answer to such a proposition is that no evidence was given of any release or receipt of money in satisfaction of damages, or of any written or verbal agreement or understanding to that effect. The court, after fully stating the law, charged the jury that what had been proven did not amount to a discharge of the Harlem .Company, and was not therefore a defence to this action, and in this we fully concur. The rule is-well settled that a release of one of several covenanters will not discharge his eo-covenanters, unless it be a technical release under seal; a parol agreement to release will not have that effect (De Zeng v. Bailey, 8 Wendell, 336).

The order at Special Term granting a new trial should be reversed, and the judgment entered below ordered to stand.

Monell, J.

(concurring). Was the verdict in this case against the clear weight of the evidence % The theory of the defendants, were it the only theory in the case, and the theory upon which the case ought to have been disposed of, would give an affirmative answer to the inquiry.

The defendants’ theory is that the collision,, so far as they were concerned, was unavoidable. They claim that, at the point where the car of the Harlem Company was first discovered by the driver of the defendants’ car, it was too late to brake up their car, or to avoid the collision. And they" claim that the evidence, and their admission at the trial, go no further than to establish that the accelerated speed of the horses was" to carry the car out of danger, and not into it.

But, I think, the error of the defendants’ counsel is in claiming that there was no proof of negligence on the part of the defendants, and no want of care before the ear reaehed the point of danger.

Leaving out of view that there was evidence which would warrant the inference that the driver of the defendants’ car did, or, had he been watchful and attentive to his ..duty, could have seen the approaching car on the other track in season to have escaped the danger (Wolfkiel v. Sixth Av. R.R. Co., 38 N. Y. R., 49, 51), there is much evidence which, although contradicted, was proper for the consideration of the jury, and, if credited by them, sufficient in-its nature to predicate-a verdict upon.

At the point wliere the collision occurred, the tracks of the two railroads cross each other at a very acute angle. The distance between the extreme points of danger, as shown at the trial, is about sixty-five feet. That distance it was necessary to traverse on either track to pass out of danger, if the other track was being or likely to be used at the same time. The grade at the crossing is ascending from Fifth to Sixth street. The defendants’ car was passing down upon a descending grade, and the Harlem car up upon an ascending grade. The respective cars-were of different size and weight. The defendants’ car was the smaller and lighter.

It was well known that at the crossing is a, somewhat crowded part of the city. The business and traffic of the Bowery passes, at that point, into the Third and Fourth avenues. It is also well known that several hundred cars daily pass the crossing upon either track, the average being, probably, one in each three to four minutes until nine or ten at night. The drivers of the several cars, upon the one as well as upon the other, must be presumed to have known the condition of the thoroughfare, the frequent passing of cars, and the distance (by estimation, at least) between the points of danger at the crossing. It is not, therefore, too much to say that, in such a condition of things, a little more than ordinary care, it seems to me, ought to he exercised by'each of these railroad companies. And it is not, perhaps, going too iar to say that the mere fact of a car passing such a point at the usual rate of speed, of say five miles an hoar, in the night, when it is difficult to see far, should of itself be enough to impute negligence. Prudence, and a due regard for the safety of passengers, should not be balanced by the few seconds of time gained to a company, in going too rapidly over a place exposed to so great danger.

How there was evidence that the defendants’ car, for some considerable time before it reached the crossing, was going at a rapid rate of speed; that the driver was told by the conductor to “ hurry up,” that he was behind time. The rapid and unusual rate of speed of the horses of the defendants’ car was testified to by several witnesses. One witness (Dooley) was on the front platform, and said he saw the Harlem car when the defendants’ car was from one hundred and fifty to two hundred feet from it, and that when within fifteen to twenty feet he jumped off. Another witness (Eemer) said the Harlem car was fifteen feet from the crossing when the defendants’ car was one hundred feet above, “ coming pretty fast on a down grade.” Another witness (Pruden) said the Harlem car was twenty-five or thirty feet and the defendants’ car one hundred and twenty-four or ofie hundred and twenty-five feet from the place of collision when he first saw them. It was not disputed that the Harlem car was going at a slow rate of speed.

Much of this evidence was contradicted. The driver of the defendants’ car stated that he was only about thirty feet from the Harlem car when he first saw it; that his horses had just entered on the Harlem track; that he then whipped up his horses, hoping to avoid a collision, it being too late to retreat and more dangerous to stop. He said, until he saw the Harlem car, he was going at his usual rate of speed, and in this he was corroborated by other witnesses.

Among other things submitted to the jury was this conflicting evidence as to the speed at which the defendants’ car was being driven before it' had reached the crossing, under the instruction that, “if the ear was driven at an unusual rate of speed, and by reason of such rapid speed the collision occurred,” the defendants yrere liable. There was no assumption in this instruction of a fact not proven, and we have the right, if it were necessary, to presume that the jury founded their verdict solely upon their belief that, for some time previous to reaching the crossing, the defendants’ horses had been driven at an unusually rapid and consequently dangerous rate of speed, which, they were told by the court, if it produced the collision; was negligence. The evidence to support such a conclusion was abundant if the jury believed it, and their verdict proves that they did believe it.

From the fact that, at the time of the collision, the defendants’ car had passed over eighty-nine feet of the whole distance between the possible points of danger, the defendants insisted that, in the position of the cars at the point of collision, there was time, at the usual rate of speed of the respective cars, for the defendants’ car to have passed if the Harlem car had not increased its speed. The diagrams and the proof undoubtedly show that the defendants’ car was within a few feet of being over the Harlem track, and that fact might tend to establish that it had first entered upon the crossing, were it not that the rapid rate at which some of the witnesses say it was going would enable it to get over the greater space in the shorter time. I am not able to see any thing in these facts going to prove that the driver of the defendants’ car could not, and therefore did not, see the Harlem car until too late to 'escape. If there had been no evidence that he was driving rapidly, and the proof had been that the speed .of the two cars was alike, then the position of the defendants’ car would justify the inference that it was first upon the crossing, and, having proceeded until the other car came in view, it was then too late to stop with safety. But the evidence is hostile to any such inference; and if it was true that the defendants’ car was going very fast for some time before it arrived at the crossing, its having reached the opposite side of the Harlem track when the cars collided is accounted for; and, therefore, whether the driver saw the Harlem car in season to stop is not material upon the question of negligence. The negligence was in driving too fast for safety at such a place. The negligence of the defendants being the want of ordinary care to avoid the collision, it was competent for the jury to say that such negligence was the too rapid driving of the homes previous to as well as at the time of the collision; and the verdict being general, we cannot say that they did not adopt that theory.

Indeed, a careful reading of the whole evidence will, I think, produce the belief that proper care on the part of the driver of the defendants’ car in approaching and driving upon and across the other track would have saved the plaintiff and her fellow-passengers from injury; and it will be doing no injustice to the defendants to say that there was evidence sufficient to justify the jury in finding that the driver saw the large car in time to brake up and avoid the collision, and was bound to do so; and, in the language of the judge, “ he had no right to experiment or venture on the probability or possibility of crossing and avoiding the collision.”

Any concurring negligence on the part of the Harlem Company, it is conceded, will not defeat a recovery against the defendants.

The rule now is, that if upon the whole evidence it would have been proper at the trial to have taken the case from the jury and directed a.verdict, then the Court will set the verdict aside, if found against what such direction should have been (Suydam v. Grand Street, &c., R.R. Co., 41 Barb., 375). The judge who tries the case is best able to judge .of the weight and effect to be given to evidence; and if one of the parties considers it so preponderating in his favor that a verdict against him ought not to stand, it should be his duty to move at the trial to have the verdict directed in his favor, and should not afterward be allowed to raise any question as to the sufficiency of the evidence, for the first time, on a motion for a new trial, for the same reason that it is too late to object on appeal that contested questions of fact should have been passed upon by the jury.

But I am satisfied that it would have been clearly erroneous to have taken this case from the jury, and therefore the verdict must be allowed to stand.

Approving of the views expressed by my associate upon the other questions raised by the defendants, I concur in reversing the order appealed from, and in directing judgment to'be entered on the verdict.


source: Caselaw Access Project

author: Monell, J.

license: Public Domain

text:
    FRANK A. DILWORTH, Plaintiff and Appellant, v. JABEZ A. BOSTWICK, Defendant and Respondent.
    A contract for the sale of goods must (within the case of Justice v. Lang, 2 Robt., 333), be subscribed by both parties. A subscription by one only is not sufficient.
    A broker employed to purchase goods is not, ex vi termini, broker for the seller also.
    The rule, that a broker is considered the agent of both parties, rests upon a bare presumption, which may be rebutted.
    The signing, therefore, of the broker employed to purchase held not sufficient to answer the statute; especially, as the evidence repelled the presumption that he was acting for the seller.
    The note or memorandum-, required by the statute to be in writing, must contain all that is necessary to show what the contract is, and parol evidence is not admissible to supply any defect.

      Held) that the writing relied on in this case did not show enough. It did not name the contracting parties, nor the subject of the contract, whether it was “oil,” or oil contracts, and was, by itself, wholly unintelligible.
    Before Monell, McCunn, and Fithian, JJ.

      [Decided October 30, 1869.]
    The action was to recover two thousand five hundred and twenty dollars as liquidated damages for the breach of a contract. between the parties.
    The defendant admitted the plaintiff’s claim, and set up as a counterclaim thereto an agreement between the parties, through their respective agents, by which the plaintiff agreed to sell and transfer to the defendant, at the rate of thirty cents per gallon, three certain contracts made by Wightman & Anderson, for the sale and delivery by them of five hundred barrels each, in all fifteen hundred barrels, standard white refined petroleum, deliverable at buyer’s option, in October, November, and December, 1861, at thirty-one and one half cents per gallon, difference to be paid by defendant on delivery of the oil; that said contracts were to be delivered within a reasonable time, and that ten days was a reasonable time for delivering. The defendant alleged performance of the contract by himself, and refusal of the plaintiff to deliver the said three contracts, and claimed damages for the breach. The reply of the plaintiff denied all the allegations of the counterclaim.
    ■ The action was tried before Mr. Justice Jones and a jury. Smith, one of the defendant’s witnesses, testified that on the twenty-seventh of August, 1867, he bought of one Crouch, plaintiff’s agent, fifteen hundred barrels of oil, deliverable x five hundred barrels each in October, November, and December; that the purchase was made through orders from Babcock & Cox, brokers in New York. He said Crouch told him they were to be Wight-man & Anderson’s contracts at thirty-one and one half cents, and. that he bought them of Crouch at thirty cents, the difference of one and one half cent to be paid by defendant on delivering of' the contracts. He then testified to sending telegrams on the day of their date, August 27, 1867, to Babcock & Cox, the defendant’s agents in New York.
    The following telegrams were offered in evidence.
    First, this telegram:

      “ Philadelphia, August 27,1867.
    “ To Babcock & Cox:

      “ Can buy October, November, and December thirty (30)—old contracts—made originally at thirty-two (32), with obligations to pay difference, by Wightman & Anderson, on delivering oil. They are quite good. Working at Lawrence—no hope.
    “W. H. SMITH.”
    ■ The following telegram was sent to the witness Smith by the defendant, in answer to the foregoing:
    “ 27th of August, 11.50, 1867.
    “ To W. H. Smith, Philadelphia:

      “ Buy five hundred each, October, November, and December,' thirty.
    “ BOSTWICK.”

      Also, the following:
    “ Philadelphia, August 27, 1867.

      " To Babcock & Cox:
    . “ Closed" Wightman & Anderson’s contracts for Bostwick at thirty (30), they paying difference on delivery.
    “W. H. SMITH.”
    The plaintiff objected to the evidence, on the following grounds:
    First—On the ground that Smith was not the agent of the parties in the suit—either the plaintiff or the defendant.
    Second—That the telegram, purporting to be a contract, 'was not made by Smith at .the time of the alleged sale.
    Third—That the alleged contract cannot be held to apply to or bind the plaintiff.
    Fourth—That the telegrams are insufficient to constitute, in terms and conditions, a contract.
    Each of which objections was overruled, and exceptions taken by plaintiff.
    . The court then allowed the telegrams, which had already been marked for identification, to be read in evidence.
    A motion was made by the plaintiff to have a verdict directed for him, overruling the counterclaim, which was refused, and the plaintiff 'excepted.
    The justice held that Smith was the broker of both parties, to which the plaintiff excepted.
    The court decided there was nothing for the jury except the question of damages, and refused a request made by the plaintiff to submit to the jury the question of agency, and whether Smith was the agent of both parties, and the plaintiff excepted.
    The defendant had a verdict, and the plaintiff appealed from the judgment.

      Mr. John R. Dos Passos for appellant.
    The telegrams relied upon to sustain the counterclaim of respondent do not constitute a legal contract.

      The Revised Statutes (vol. iii., p. 222, sec. 3, Banks’ ed.) provide that “ every contract for the sale of any goods, chattels, or things in action for the price of fifty dollars or more shall be void, unless a note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby.” And section 8 declares that “ every instrument required by any of the provisions of this title - to be subscribed by any party may be subscribed by the lawful agent of such party.”
    The telegrams do not contain the name of one of the alleged contracting parties—the appellant. This is essential (Wheeler v. Collier, Moody & M., 123; Champion v. Plummer, 5 Esp., 240; 4 B. & P., 253; Jacob v. Kirk, Moody & R., 221; Sherburne v. Shaw, 1 N. H., 157; Webster v. Ela, 5 N.& H., 540; Nichols v. Johnson, 10 Conn., 192).
    The telegrams do not contain a full and complete description of the subject-matter of the alleged agreement; although formal words and statements are unnecessary, the memorandum must contain all that essentially belongs to the agreement; there can be no recourse to parol evidence to supply any thing wanting in the writing (Boydell v. Drummond, 11 East., p. 142; Cooper v. Smith, King’s Bench, 1812; Clinan v. Coke, 1 Schoal & Lefroy, 22; Calkins v. Falk, 39 Barb., p. 621; Dodge v. Dean, 13 Johns. R., p. 508; Whiteman v. Meigs, 4 Cushing, 498).
    The telegrams are not subscribed by the parties or their lawful agents.
    ¡¡Neither the appellant nor respondent participated in 'the ‘transaction out of which the controversy arose.
    The negotiations were carried on by Smith as the representative of respondent, while Crouch acted for appellant.
    The court below held that Smith was the broker of both parties, and had authority to bind them.
    The exception to this ruling is well taken.
    It cannot be disputed that if both principals had appeared, a memorandum signed by one would not have constituted a binding contract (Justice v. Lang, 2 Robertson, p. 333; Marcus v.
      Barnard, ib., p. 221; Johnson v. Mulry, 4 ib., p. 404; also Brabin v. Hyde, 32 N. Y., p. 523).

      Mr. D. M. Porter for respondent.

      “A notice of purchase signed by the broker” (agent) “is the signature of both parties, through their agent, and is conclusive, though the name or existence of the principal does not appear upon the instrument” (Dykers v. Townsend, 24 N. Y., 57).

    The telegrams amount not only to a notice of sale, but contain an acceptance of the sale ; therefore there is a sufficient signing under the Statute of Frauds.
    The telegrams were all delivered as fast as they could be made, and it matters not whether the contract is in one or many papers, they are all one transaction, and each expressly refers to the others (3 Parsons on Contracts, 2d ed., 17; Stow v. Tifft, 15 Johnson, 457; Allen v. Bennett, 3 Taunton, 167; Saunderson v. Jackson, 2 Bosan. & Puller, 238; Vassar v. Camp, 1 Kern., 441; Mactier v. Frith, 6 Wend., 103; Adams v. Lindsell, 1 Barn. & Ald., 681).
    - The contract contained in the telegrams is certain as to amounts, time of delivery, price, and buyer and seller.
    Extraneous evidence is admissible to show who the real principal is (Dykers v. Townsend, supra ; Higgins v. Senior, 8 Meeson & Weis., 834; Truman v. Loder, 11 Adolphus & Ellis, 589, and 14 Howard U. S. R., 446).
    Parol evidence was also admitted to explain the abbreviations (Salmon Falls Manufacturing Company v. Goddard, 14 Howard U. S., 446; Cross v. Eglin, 2 Barn. & Ald., 106; Fish v. Hubbard’s Executors, 21 Wend., 657; Smith v. N. Y. C. R.R. Co., 43 Barb., 225; Bradley v. Washington, 13 Peters, 89; Spencer v. Babcock, 22 Barb., 326; Scovill v. Griffiths, 2 Kern., 509).
    A contract miist be construed by all the surrounding facts (Bancroft v. Winspear, 44 Barb., 209; Le Sage v. Gt. Western R.R. Co., 1 Daly, 306).
    The signature to the telegram is binding (Dunning v. Roberts, 35 Barb., 463).

       Reversed by Court of Appeals, June, 1870.

   By the Court:

Monell, J.

The only written evidence of a contract in this ease is contained in the several telegrams which passed between Smith and the defendant. Those telegrams were signed by Smith only. He was confessedly the defendant’s agent; and, unless in his character of broker he was also the agent of the plaintiff, the case, would fail under the authority of Justice v. Lang (2 Robt., 333).

The léarned justice held, at the trial, that Smith was the agent of both parties, which, if correct, would make his signing a signing by both parties, and not within the statute.

The contract, as proved by parol, was to purchase three several contracts, made by Wightman & Anderson, to deliver to Graham Brothers five hundred barrels of petroleum in each of the months of October, November, and December, 1867, at thirty-one and a half cents, deliverable at the buyer’s option. The purchase of the contracts was made by Smith of Crouch, and not directly of the plaintiff. Grouch was the agent of the plaintiff. The answer alleged that'the contract was made by the plaintiff through his agent Crouch. Smith testified that he “ bought the contracts of Crouch, the agent .of .Dilworth.” He said Grouch, the plaintiff’s agent, offered him the oil, and that he bought them for Bostwiclc He said he knew that Crouch was the plaintiff’s agent and representative in Philadelphia. Throughout Smith’s evidence, he stated clearly and distinctly that Crouch was the plaintiff’s agent, aiid acted in that .capacity for him in the agreement for the sale and delivery of the petroleum contracts, and that Groueh came to him as DilwortWs' agent, and offered to sell to him the oil contraéis. Crouch also testified that he was the plaintiff’s agent, and as such agent made the sale of the contracts. He said he did not disclose the name of his principal until after the contract had been made.

But in the course of Smith’s examination he was asked who paid his brokerage, or was to pay it, and he answered, Hr. Dilworth was to pay the brokerage, but he did not get any. On the same subject, the following testimony was given by the same witness:

Q. Then you were acting for him as well as for Mr. Bostwiek ?

A. Tes, sir; Mr. Crouch offered me the oil.

Q. Is not it a custom for a seller of the oil to pay the bro kerage ?

A. Yes, sir, always. Mr. Dilworth, being the seller, was to pay the brokerage.

Q. You do the business of a broker?

A. Yes, sir.

Q. You say the seller pays the brokerage ?

A. Yes, sir, the seller pays the brokerage always.

Q. Mr. Dilworth, being the seller, was to pay you the brokerage here ?

A. Yes, sir. I received no authority from Mr. Dilworth in this matter at all. I had no communication with him.

Upon this evidence, and the general evidence that Smith was a broker, the learned justice held that his signing was the signing of both parties.

The rule that a broker is to be considered the agent of both parties, rests upon a mere presumption of fact, which may be rebutted by the particular circumstances of the case. He is not ex vi termini "agent for both (Dunlap’s Paley Ag., 315 ; 2 Parson’s Con., 292 ; Bartlett v. Burnell, 4 Ad. and Ell., 792). It may, therefore, very properly be questioned whether the presumption of agency was not fully rebutted in this case.

The plaintiff had another agent who was transacting the business, and with whom alone Smith negotiated, knowing him, as he says, to be Dilworth’s agent. Smith says expressly that he received no authority from Dilworth at all, and had no communication with him. Smith’s agency, therefore, must stand upon a mere custom, testified to by him, for the seller of oil to pay the brokerage, arid that Dilworth, being the seller, was to pay him the brokerage, not under any agreement with him, but by reason of a custom to that effect.

Where a person intervenes between the seller and the buyer, and acts for both, then it may be said he is the agent of both. He is the broker to purchase and the broker to sell, and, his acts are binding upon both. That, however, is not this case. Dilworth had a broker of his own, authorized to negotiate and contract for him, but such broker had no power to appoint, either expressly or impliedly, a sub-agent who could bind his principal.

The presumption of agency, therefore, seems to me to be completely rebutted. Crouch, acting as the plaintiff's broh-er,' offered to sell the six contracts to Smith, and Smith agreed to purchase them. Smith was the defendant’s broker, and had all the authority necessary to act on his behalf. But he did not become the agent of the plaintiff by merely agreeing to purchase from his agent, knowing that he was dealing with the agent and not with the principal. To adopt the rule laid down in this pase would place any seller of property in the power of the person employed to make the purchase, to make for the seller just such a,contract as he saw proper to make; and having put it in writing, it could not be contradicted by parol. Smith, therefore, not being the agent of the plaintiff, and there having been no signing of the contract by the plaintiff, the contract was, within the 'statute, null and void.

There is, however, a further reason which is conclusive against the counterclaim in this case. The rule is well established that, the note or memorandum must contain every thing necessary to show the contract between the parties, so' that there may be no need of parol proof to explain the intention of the parties, or the terms of the agreement (Boydell v. Drummond, 11 East., 142; Dodge v. Lean, 13 John. B., 508; Abell v. Radcliff, id., 296; Baily v. Ogden, 3 John. R., 419; Merritt v. Clason, 12 id., 102; Trustees First Bap. Ch. v. Bigelow, 16 Wend., 28; Calkin v. Falke, 38 How. Pr. R., 62). For the purpose of making out the contract, the three telegrams may be read together, although the last contains the only note of any contract. Do these telegrams show precisely, and without the supplement of additional facts (not mere explanations), what the contract was? I am unable, upon reading them, to make out any contract whatever, the terms of which I can understand.

■ It does not state who are the contracting parties, buyer and seller (Champion v. Plumner, 5 Esp., 240). If any thing, it was a contract with Wightman & Anderson.

The subject-matter of the contract is nowhere mentioned or described. Any commodity whatever might have been the subject; and it is impossible to determine from it whether it was oil or oil contracts or any other merchandise or thing.

If it were proper to explain or supply by parol that the purchase was of oil contracts, then how many of such contracts described as old contracts ” was agreed to be sold ? The second telegram does not aid the defect: “ buy five hundred each,” is descriptive of nothing, and by itself wholly unintelligible.

In short, the memorandum relied on does not contain enough of the contract to enable the court to see what were the terms of the agreement; and resort to parol proof was, therefore, neces-' sary, not to explain technical or equivocal terms on the face of the instrument (Salmon Falls Mfg. Co. v. Goddard, 14 How. R., 446), but'to supply the omissions and defects in it. That seems to have been thought necessary at the trial, as the defendant, instead of relying upon the written memorandum, proved the whole of the contract by parol, and such parol contract was the only basis for any recovery in the case. Even, therefore, if the signing was within the statute, the memorandum signed did not contain the terms of a contract which was capable of being enforced.

The motion to overrule the counterclaim ought to have been granted.

As the rulings of the learned justice on these branches of the case were in our opinion erroneous, it is not necessary to express any opinion upon the rule of damages adopted at the trial.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.


author: Jones, J. Barbour, Ch. J.

text:
    PHILIP HERST et al., Plaintiffs and Respondents, v. OLIVER DE COMEAU and Another, Defendants and Appellants.
    , When, a word capable of different significations is used in a contract, the meaning which the parties attach to it is to be ascertained from the circumstances attendant on and surrounding the making of the contract. *
    In deciding on conflicting evidence, the jury are at liberty to bring to their aid their own experience of things, the natural power of their reason, and to apply those principles on which they would act in the ordinary affairs of .life. It is not error so to charge a jury.
    If a judge submit to the jury a question which he should himself have decided as matter of law, and the verdict of the jury is in accordance with' what the judge should have decided, the error in the submission to the jury is immaterial.
    If there is a. particular item oí e'vidence tending to support the verdict of a jury on a question submitted to them, they will be presumed to have taken that evidence into consideration in-arriving at their verdict, although the judge in charging them may, 6y reason of having overloolced it, have charged them that there was no such particular item, of proof.
    Before Barbour, C.J., Jones, and Fithian, JJ.

      [Decided October 30, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    Appeal from judgment, and order denying motion for new trial.
    The complaint alleged an agreement made between defendants and plaintiffs, that plaintiffs should sell and deliver to defendants eighty-four cases of felt hats, containing 268-L”- dozens of said hats, and that defendants should pay to plaintiffs therefor the cost price of said hats,- and also a profit, at the rate of $2 for each dozen of said hats; it then charged, that the whole price to be paid for said hats amounted to the sum of $9,800.75; that said hats were delivered pursuant to the agreement, and received and accepted by the defendants; that afterward defendants, without the consent of and against the protest of plaintiffs, returned the hats to the factory of plaintiffs; that plaintiffs caused said hats to be sold on account of the defendants, having first given them due notice of the time and place of sale, and that the sale would be on their account, as they would be held liable for all loss and damage sustained by plaintiffs ; that the net proceeds of the sale were $7,638.18, and that by reason of the premises plaintiffs have suffered loss and damage in the sum of $2,162.57, being the difference between the sum defendants agreed to pay for the hats and the sum they sold for at said auction, for which difference plaintiffs demanded judgment.
    The defendants admitted the partnership of the plaintiffs, as also that of the defendants, and that plaintiffs gave them notice of the auction sale, and then alleged that they made a verbal arrangement with plaintiffs at Philadelphia, to the effect that if the plaintiffs would at once furnish to them at New York a full, true, and accurate written statement, in detail, of the cost of a certain (then unascertained) number of felt hats, then of the plaintiffs (showing all the items from which to ascertain the exact cost thereof), the defendants would buy said hats and pay the plaintiffs therefor the said cost thereof, with $2 for each dozen of said hats added thereto, upon delivery thereof in the city of New York; that plaintiffs, without furnishing to defendants said statement, sent them eighty-four cases of hats, which defendants then refused, and now have refused, to receive or accept, and which they caused to be returned to the plaintiffs with a notice that they declined to receive or accept them ; that plaintiffs never have furnished any such statement as aforesaid; that defendants have laid out for the cost of transportation of said hats $43.80, for which they demanded judgment against plaintiffs by way of counterclaim, and denied all allegations in the complaint not specifically answered, except so far as the answer admited them.
    On the trial it appeared that plaintiffs were manufacturers of hats, and that the defendants were general commission merchants, and knew plaintiffs to be such manufacturers.
    Philip Ilerst testified, among other things, as follows:

      Q. You had an interview with Mr. De Oomeau on or about tire 2d day of May, 1866 ?

      A. Tes, sir.

      Q. Be so good as to state to the jury exactly what took place.

      A. On or about the 2d day of May, Mr. De Comean, accompanied by Mr. Curran, of Philadelphia, came into our factory.

      Q. Who was Mr. Curran ?

      A. A broker also; he was a friend of Mr. De Comean.

      Q. State what took place.

      A. After meeting him in the usual friendly way at the door, shaking hands with him, &c., he said : “Mr. Herst, have you any white or fawn-colored coney for sale ?” I said: “We have some, but do not wish to part with it; we have not got a great deal.” Says he, “ There is none in New York,” or, “ It is very scarce,” I don’t know which, “ and I am commissioned to buy three cases,” I think, “ and I have come over to Philadelphia to see if I could find it.” Says he : “ What did yours cost you ?” I think I mentioned what it cost me, and he offered to give me an advance over the cost; I said: “We have no full cases, and what we have I do not wish to .part with; we shall need it perhaps for the balance of the season, to keep our hands at work.” Immediately after 1 had answered his question in regard to selling the stock, and had refused to sell, I had then standing in range of, where we were standing, near our counting-room door, quite a large number of hats, lead color, of various shapes, and casting his eye over them, he said: “You have a very nice lot of goods here.” I answered, “Yes and he said: “ Such goods are in demand in New York.” I said that “ I would be very glad if they were in New York, then, because our trade is nearly over here, and I would be very glad to sell them.” “ Well,” said he, “ I will make you an offer for them.” Said I: “ What ?” Said he: “ I will give you two dollars a dozen over the cost of manufacture.” Said I, smiling: “ That is a very small margin of profit; if you made it three dollars a dozen I might entertain your offer.” “ No,” said he, “ I will give you what I have offered, and take all that you have got.” Said I, “ In the absence of my partners, I do not like to accept your proposition ; but when they come in I will suggest it to them, and let you know the result; when are you going home?” “ This afternoon,” said he. “ Well,” said I, “I will send you down word to Curran’s.” He said that would do, and he passed off, shaking hands at the door and bidding me good day. I was then going tip stairs where we prepared the work, &c., and I left word in the counting-room that when Mr. Samuel and Mr. Blaylock came in to send them up to me—that I wished to see them immediately; a few minutes after they came to the room, and I mentioned to them the conversation I had had with Mr. De Comeau, and the offer he had made; after some conversation, Mr. Samuel went down stairs to speak to Mr. De Comeau.
    William Porter testified, among other things, as follows:

      Q. Explain what the lot-books contain.

      A. The lot-books contain the mixture of furs, workmanship, trimming, expenses, &c.

      Q. The whole cost of the hat ?

      A. Yes, sir.

      Q. State at what time and in what manner the entries in those lot-books are made in the course of business ?

      A. They are made at the time the mixture of fur is sent to be formed into a cone—the prices are put down then.

      Q. And the other items ?

      A. The other items were put down as they went through the different parts of workmanship.

      Q. Who entered them ?

      A. The foreman.

      Q. What was his name ?

      A. Theodore Dobbs.

      Q. Is he here ?

      A. Yes, sir.

      Q. He made all those entries ?

      A. He put down the cost of all of them; I see that they are not all in his handwriting, but they were dictated by bim,

      Q. Where he did not make the entries, who did ?

      A. One of the clerks would assist him when he would get behindhand; but they were made under his direction, at his dictation.

      The lot-books were put in evidence; and from them it appeared that §2 per dozen added to the net cost shown on the lot-books, amounted to §9,800.75.
    The, following is one of the entries in the lot-books, and is inserted as a sample of the others.
    March 21st, P. Heest & Co.
    Lot 508
    Sizes 6f to 7|%

      12 dozen Mut. Col 8x3...........................3 oz
    10 lbs. W. C., Mo. 1 H. Ex.....................•.....500
    31 “ Ex. “ Fawn Coney........................363
    31 Expense.......................................100
    Forming.......................................10c.
    Sizing.......................... 13 ......11
    2d Sizing....................... 4 ...... 3
    Shaving........................................ 1£
    Stiffening...........................................
    Coloring...........................................
    Blocking......................; 3| ...... 3
    Pouncing....................... 73 ..........
    w Expense............................................
    Finishing...........................................
    <m Bdg. and. Sides.....................................
    e Packing............................................
    ti Boxes and Paper....................................
    O Trimming..........................................
    Expense............................................
    144 Leathers...........................................
    144 Tips...............................................
    7J Yards Satin................... 1 35 ..........
    7 Pieces Bands.......................................
    9 “ Banding.....................................
    Loops, Silk, and Slides..............................
    $50 00 73 62
    1 00 $127 02 1 20 14 40 1 32 15 84 24 2 88 18 2 16 25 3 it 50 6 It 36 4 32 60 7 20 1 00 12 60 1 75 31 00 25 3 00 25 3 00 36 4 33 96 11 52 1 00 13 It 07 10 08 10 14 40 1 25 9 69 2 25 15 75 1 75 15 75 38 4 56
    $26 66
    U. S. Tax 6 per cent.
    Disct. 5 per cent.
    11 per cent.................................. $3 96
    $30 63
    Met cost........................................... $26 66
    Prft. per doz........................................ 2 00
    Gov. 6 per cent., disc. 5 per cent., 11 per cent, on selling pr. Inv’cd de O, & A............................... 3 54
    $32 20
    Henry Samuel testified, among other things, as follows:

      Q, You were requested to take a message to Mr. De Comeau down stairs %

      A. Yes, sir.

      Q. What message were you directed to take down stairs to Mr. De Comeau %

      A. That we accepted the offer that he had made to my partner, Mr. Herst.

      Q. What did you do ?

      A. I took that message down stairs ; I told Mr. De Comeau that we accepted the offer he had made us of $2 a dozen profit on our light-colored hats, and Mr. De Comeau assented by nodding his head.

      Q. Go on, and state what took place between Mr. De Comeau and you.
    1. Mr. De Comeau then asked me what I thought the bill would come to, and I told him that Mr. Herst and his son were busily engaged in calculating it at that time from the lot-books? and that I would let him know. A short time afterward Mr. Herst came down stairs and told me the amount, and I told Mr. De Comeau; I told him they would come to something like nine or ten thousand dollars; Mr. De Comeau said it was all right; I then asked Mr. De Comeau how he wanted the goods shipped, and he said by the Hnion Transportation Line ; he then turned toward the door, but came back and said, “ Mr. Samuel, I do not wish to inquire into the secrets of your business, but I would like to have a general idea of what the hats are made.” I said, “ Certainly, Mr. De Comeau, we will send it to you; shall I send it to your hotel? ” “Ho,” he said, “ I am going away this evening; I don’t want it sent to the hotel; send it on by mail.”

      Q. That was all that took place between Mr. De Comeau and yourself ?

      A. Tes, sir ; that was all.
    Mr. Blaylock testified, among other things:
    “ Mi\ De Comeau told me that he merely wanted to know about what the hats were made of, so that he could tell his customers the ingredients, or what the hats were made of—the name of the fur.”
    Mr. De Comeau, on the part of the defence, testified, among other things: ...

      Q. From that did the conversation lead to the bargain that was made between yon %

      A. Mr. Herst proceeded to show me some hats of his manufacture^ which were just coming through, and they seemed very handsome, well-manufactured hats; I admired them, and asked him what he was selling- the goods for. He told me that he had no difficulty in selling those hats, but that he found a ready sale for them, and was receiving orders at that time for such goods. •Being raised in the hat trade, and a little familiar with the value of hats, they struck me as being cheap at the price he named; the more so as the hats were well made and very salable; and. at the price fur then was; I thought they would be a good purchase at the price he named, and I told him so. We walked out, bidding him good-by, and he accompanied us down stairs. I did not know that he was coming down stairs; At the door there were three or four cases of hats, if I remember rightly, exposed to view; that is, some of the hats were taken out of the paper, boxes. Mr. Herst showed me those hats, and I admired them likewise. Some other conversation took place, of no importance in this case, which I do not remember. I asked him whether he found a ready sale" for those goods, and he said he did. I told him I would not mind if he would sell me a lot; that I would buy a lot of him if he would sell me a lot of them. He asked me what offer I would make him, and I told him that I would give him two dollars a dozen profit above the cost for all the goods he had in his store—of such goods;' Mr. Herst said that two dollars a dozen would be a foolish offer, that they would not listen to it, but that if I made it three he might confer with his partners and give me their decision. I told him that I did not .care increasing my offer above the two dollars first made; that if he chose to accept that, well and good. He declined, and I went out, and I happened to meet Mr. Samuel on the street, in Philadelphia ; after shaking hands with him, he told me that he had some fur which he wished to dispose of, and asked me to retprn with him to his store, where I could see samples. I did so, and he left me, I thought, with the intention of getting the samples.

      Q. State the conversation you had with him immediately before he left.

      A. It was in relation to these certain furs he had.

      Q. It had nothing to do with the hats 2

      A. No, sir; I did not repeat my offer to him at all; he left me, and I remained there a few minutes, and he came back—I do not know from what quarter—and said that he would accept my offer; I answered '" Very welland I said, " Hr. Samuel, can you give me an idea of about how much these hats will come to 2” I understood him to say, eight or nine thousand dollars; prior to that, he said it would take some time to make it out, but that he would give me the figures very shortly, which he did; as I left the store, I told Hr. Blaylock and him—Hr. Samuel was standing but a little distance from Hr. Blaylock, and I think could hear my remark very plainly—I had then been introduced to Hr. Blaylock, whom I had not had the pleasure of meeting before; and I told Hr. Blaylock and Hr. Samuel—I won’t be positive that Hr. Samuel heard it, but I meant that he should hear it, and I think he was within hearing distance—“ Hr. Blaylock, it will be necessary for me, in order to examine and ascertain the cost of these goods, to have a detailed copy of the mixturesI don’t know whether I said a detail or a copy of the mixtures, but I did say that it was my intention to ascertain the cost, and I wished to be furnished with the mixtures for the purpose of ascertaining the cost of these goods; we then bid each other good-by.

      Q. What did he say 2

      A. He sneered a little—he said it would be a long document, but if Hr. Samuel would make it out—he sneered as though Hr. Samuel’s occupation was not very great there—and told me that Hr. Samuel would make it out and forward it; Hr. Samuel said, " Certainly, I will send it around to your hotel this evening; I told him that I was leaving town that evening, and' that if he would send it by mail that night it would do just as well.”
    A great deal more evidence was given on both sides, but the above is sufficient to present the questions discussed in the opinion.

      The judge charged-the jury as follows:
    “ Gentlemes—This case must depend entirely upon what you find to have been the contract made at Philadelphia between the parties. If that contract was to pay $2 over and above the actual cost of the goods, then I charge you that the plaintiff has not made out a case for a recovery. That is apparent to me, because the actual cost has not been shown—indeed, it is almost' impossible to show the actual cost of these goods $ at all events, it has not been shown; and, therefore, if the contract was that the defendants were only to pay the actual cost, and $2 in addition, inasmuch as the plaintiffs have not -shown the actual cost, they cannot recover. If, however, the contract was that they were to pay that cost which the manufacturers had assigned to their goods when making them up, as being the price at which they were willing to sell, so as to produce no loss, and $2 in addition to that cost-price, then the plaintiffs can recover their whole demand, because they have shown that in the evidence. That is the question for you to determine: What was this contract 2 And you are to look at the evidence in the light of your experience as business men; as men having ordinary reason and experience. One of these parties is a manufacturer of hats, the other a broker and dealer in general merchandise, and when they made the bargain as regards the sale of the goods, and spoke of $2 a dozen over the cost, what did they mean by that term 2 What is the ordinary acceptation of that term among business men, when a contract of this kind is made 2 Does it mean the cost which the manufacturer has made up as being the sum at which he has satisfied himself he can sell without loss, all over it being profit, and all below it loss ? When two parties, situated as these were, come together and make a contract for $2 profit over the cost, or, as has been charged here, $2 profit, what do the two mean 2 Do •they mean that the manufacturer, if he has had these goods on hand any length of time, shall go, back and bring the persons from whom he purchased articles used in the manufacture of the goods, to show how much he paid for those articles, at that previous time 2 Is that what they mean 2 Or is it that the purchaser is dealing upon his faith in the seller, upon the faith he has in the seller having fairly conducted his business in the ordinary manner in which business of that character is conducted, and that both mean that sum which the manufacturers, in making up their lots for sale, have put them at, for the purpose of ascertaining at what price they can sell their goods, in order to secure a profit or save themselves from loss ? H the latter was the cost referred to here, viz., the cost in the lot-books, and the plaintiffs were to have in addition to that the sum of two dollars a dozen, then the plaintiffs are entitled to recover their demand. There was nothing said at the time particularly referring to these books, and you have got to arrive at the conclusion that the amounts in the books were the cost-prices contemplated by the parties, from the circumstances in the case and from your general business experience in matters of this kind. There are some indications on both sides of the question, and you will have to weigh those in making up your mind as to what the contract was. There is evidence tending to show that in all their correspondence, or rather at the end of their correspondence, the desire was to get a copy of the books, on the part of the defendants, they alleging that they'could not ascertain how much they were to pay unless they had a copy of the books, and that they sent the goods back because such a copy was not sent them. The plaintiffs, on the other hand, assert that all the defendants asked for was the mixtures, and they did not want the proportions of those, but only wanted to know what kind of fur the hats were composed of, in order that they could tell their customers ‘ this is' a hat made of such and such fur.’ If that testimony is true, it goes some way to show that the meaning of the parties, when speaking of the cost, was to refer to the cost which the plaintiffs had made up as being the cost of their different lots. On the other hand, the defendants say, at the time of this bargain they expressly told the plaintiffs, ‘ We want you to make out and send us on a statement or an account of the mixtures, so that we can ascertain what the cost will be.’ Assuming that, and not the statement of the plaintiffs, to be true, it would go a considerable way to show that the defendants depended for the ascertainment of the amount of the payment to be made by them, not upon the lot-books, cr the amount which the plaintiffs had fixed as being the proper cost-price of their goods, but upon a detailed account, containing the quantity, the quality, and the price of every thing that entered into the composition of a hat, in order that they might be able to submit that detailed account to other people who would tell them whether it was correct or not. That is the defendants’ version of the bargain ; they say that that was what they wanted, and that they told the plaintiffs, at the time the bargain was made, that they wanted that detailed account for the purpose of figuring up the cost, and that they might show it to other dealers and ascertain whether they had been correctly charged for the goods.
    “ These are all the remarks I deem it necessary to submit to you. If you find that the bargain was that the defendants were to pay the sum which the manufacturers had, in making up theiy goods, fixed them at as being their cost—the price at which they could sell and clear themselves from loss—and all over which would be profit, and all under which would be loss, and that they were to have two dollars a dozen in addition to that sum—if that was the bargain made between the parties, the plaintiffs are entitled to recover. If, however, you find that the bargain between them was that they were to pay only two dollars a dozen over and above the actual cost, to be ascertained by the actual quantity, quality, and cost of material that entered into the composition of these goods, and the actual amount of time and labor spent upon them, then that would have to be made out and agreed upon subsequently to the contract, for, if not agreed upon, it would of course lead to a dispute. But if that was the contract, if the plaintiffs were only to receive over and above the actual cost óf every article of material and every item of labor that entered into these hats the sum of two dollars a dozen, then, as the plaintiffs have not shown a proper case for a recovery, you will find a verdict for the defendants. I will leave the case for t you to decide.”

      The jury rendered a verdict for plaintiff, upon which judgment was entered. Previous to the entry of judgment, defendants moved for a new trial, which was denied. Defendants appealed from the order denying the motion for a new trial, and also from the judgment.
    On the trial defendants’ counsel took several exceptions to the reception and exclusion of evidence, to the charge, and to refusals to charge certain requests.
    The exceptions thus taken, so far as they were urged and argued on the appeal, are noted in the opinion.

      Mr. John E. Parsons for appellants.
    The bargain was that defendants should pay $2 a dozen “ over the cost of manufacture of the hats.”
    There was no issue on the point. The complaint alleges that the agreement was that defendants should pay the plaintiffs the “ cost price ” of the hats, and a profit of $2 a dozen. The answer admits that the arrangement was that defendants should pay plaintiffs the cost of the hats, and $2 a dozen in addition, insisting as a condition that defendants were to be furnished with a statement of the cost. The plaintiffs undertook to make out their case on that principle.
    The judge charged the jury that plaintiffs had not shown the actual cost of the goods, and that, if the contract was to pay $2 a dozen over and above the actual cost, the plaintiffs could not recover.
    That was exactly the contract alleged in the complaint, and sworn to by the witness Herst, with whom it was made, and who alone was present at the time.
    It was error, therefore, for the judge to refuse to nonsuit, and to permit a recovery, if the jury, on their general experience and without any evidence to justify, came to the conclusion that “ cost ” meant not “ cost,” but whatever the plaintiffs saw fit to state on the lot-books against the several lots, an idea not thought of by counsel on either side till advanced by the learned judge.

      The amounts stated in the lot-books do not purport to he of cost. The judge excluded evidence tending to show that the lot-hooks did not truly represent “ cost,” refusing to permit such testimony, unless for the purpose of proving fraud.
    The contract being undisputed, it was for the court, not the jury, to interpret it (Thomas v. Dickinson, 23 Barb., 431); and, there being no evidence of any other meaning for the term “ cost” than its usual and ordinary signification, that is the sense in which it was to he received (Robertson v. French, 4 East, 135; Boorman v. Johnston, 12 Wend., 573).
    There was no evidence to show that when Mr. De Oomeau offered §2 a dozen over cost of manufacture of the hats, he or Mr. Herst meant any thing other than what they said; or in any way referred to any statement on plaintiffs’ hooks.
    If the lot books had been mentioned, it was in connection with the positive contract fixing the price at $2 a dozen over the cost of manufacture. The only inference would be that defendants understood the lot-hooks to state truly the cost of manufacture, not that they designed to be hound by them whether they did or no. In that case there would be no propriety in speaking of " cost of manufacture.”
    There was no evidence that it is usual to keep books containing a statement of the amount upon which manufacturers fix as representing cost.
    It has been shown that the lot-hooks were not proved to state correctly the cost. They were improperly received in evidence. A party’s books are not evidence in his own favor save in well-known exceptional cases, which this is not.
    And especially was it error to receive evidence as to their contents.

      Mr. Henry A. Cram for respondents.
    The title of the goods had passed to the defendants before they had returned them. They had received and accepted the goods offered them for sale, and exercised acts of ownership over them. They therefore had no right to return them, even if there had been a breach of the contract to give information as to the mixture, which there was not.
    The plaintiffs had a right, after the goods were returned to them, to sell them at public auction at the risk of the defendants, giving due notice of the time and place of sale. This the plaintiffs did. After such sale the plaintiffs were entitled to recover the difference between what they brought at such sale and the sum the defendants agreed to pay for the goods, together with the plaintiffs’ expenses in reference to the goods after their return; and the juiy gave the plaintiffs this amount.
    The principal question presented by the appeal, and made at the trial, was as to what the contract was on the point of the amount the defendants were to pay for the goods, and whether the plaintiffs had given any evidence as to what that amount was. If there was evidence given of this amount, then the verdict cannot be disturbed, except for some other exception of the defendants.
    The construction of the contract contended for by the defend ants was an impracticable and unreasonable one; it would have been impossible ever to have proved the cost under the strict view contended for by the defendants. The contract was made in reference to the lot-boolcs, a species of books generally kept by manufacturers, for the purpose of satisfying themselves of the cost of the goods manufactured. The-jury have found that such was the contradi The court was authorized in submitting this question to the jury, it being an oral contract, and there being a dispute as to what it was.
    The defendants, by receiving and accepting the goods, and never objecting to the amount of the invoices, or to the source from which they were made up, have thus admitted that the lotboolcs from which the invoices were made up was the “ cost ” to which the contract referred.
    The defendants were told, at the time the contract was made, what would be the amount of the cost, as made up from the lot-books, and they answered that it was all right.

      The motion for a nonsuit was properly denied; the case was properly a case for the jury.
    The market value offered to be proved was entirely irrelevant; the contract did not relate to market value.
    The only point raised by the exceptions to the charge, not already considered, is the objection made in the suggestion of the court to the jury, that in passing on the question of fact they might obtain light from their own business experience. The very object of having a jury is to have the benefit of the experience of men versed in the affairs of life, especially in a commercial case.
   By the Court:

Jones, J.

There were numerous exceptions taken on the trial, all of which were abandoned on the argument of the appeal, except such as arose out of the submission to the jury, the determination of what was meant by the parties by the term cost used in their contract, and the charge of the court on that subject, and two objections to evidence which will be noticed hereafter.

The appellants insist: First—That the contract was undisputed, and that the court should have construed it; and that in so doing the court should have given to the word “ cost ” its usual and ordinary signification, there being no evidence that it had any other meaning. Second—That, there being no evidence that the word “ cost, ” as used in this contract, had any technical meaning, or that the parties attached to it any meaning other than its usual one, it was error to submit the case to the jury with the instruction that they were to look at the evidence in the light of their experience as business men, and were to arrive at a conclusion as to what the parties meant by the word “cost” from the circumstances in the case and their general business experience in matters of this kind; and Third—That it was error, under any circumstances, to instruct the jury that they might look at the evidence in the light of their experience as business men, and determine the point involved from the cirenmstances in the case and their general business experience in matters of that kind.

Let us now consider these objections. The answer put in issue the terms of the contract as alleged in the complaint, and also the amount of damages sustained by its breach.

It is true the answer substantially concedes, as alleged in the complaint, that the amount to be paid for the hats was the cost-price and $2 a dozen in addition. On this point there is no question raised either by the pleadings or the proof.

But the complaint alleges that the cost-price, with the additional $2, amounts to a certain sum. This is denied by the answer. It was therefore necessary on the trial to establish this allegation; and, in establishing it, the meaning to be attached to the words “ cost-price ” was necessarily involved. The term “cost” is a relative one, and differs in its meaning according to the circumstances under which it is used: thus, the cost-price to animporter is one thing, to a jobber or middle-man another,to a retailer another, and to a purchaser from a retailer still another. In determining what the contracting parties mean by the term, reference must be had to the situation of the parties and the circumstances under which the word is used. Ordinarily it would refer to the sum which the seller had himself paid for the article ; but it may refer to the sum paid to its original producer, or to some one of the numerous holders through whose hands it has passed between the original producer and the immediate seller. To what it is meant to refer by the contracting parties must be judged of by all the surrounding circumstances.

Now, in this case, it is evident that both parties contemplated that the sellers should receive $2 profit; and consequently that a proper proportion of the general expenses of carrying on the business, such as rent of the buildings, insurance, book-keeper’s salary, light, fuel, &c., should enter into the cost as well as the bare cost of the material and of the labor directly bestowed on it. These matters necessarily enter into the cost of an article to the manufacturer. It is apparent that a manufacturer must take all these matters into consideration in fixing the cost of his manufactored article, which is, that price at which he can afford to. sell it without positive loss to himself ; and it is also apparent that it is necessary for him to keep a record of such assigned cost, for it is by this means that he is to keep -track of his business, determine how much he is to charge for a profit, the amount of profit he makes on any particular species of article, to what extent he can vary his charge for profit to shit the market and the demand for the article, to regulate him in making his bargains for sales, and to keep the run of his losses on the article.

The natural power of our reason teaches us that this must necessarily be the mode in which manufacturers transact their business, and ascertain the cost of their articles; and by the same power we are also taught that when a manufacturer speaks of the cost of articles manufactured by him he refers to the cost thus assigned.

The affirmative evidence given by the plaintiff in this case shows our reason not to be at fault.

It shows that the plaintiffs kept such a record in books called lot-books; • it also shows that at the time of the sale the lot-' boobs were in the minds of both parties, and the cost therein set down was referred to as the cost over which the $2 profit was to be receivéd.

Hr.' Be Comean thén asked me (Henry Samuel) what I thought the hats would come to, and I told him Hr. Herst and his son were busily engaged in calculating it at that time from the lot-booTcs, and that I would let him know. A short -time afterward Hr. Herst came down stairs and told me the amount,, and I told Hr. Be Comean. I told him they would come to something like $9,000 or $10,000. Hr. Be Comeau said it was all right.”

The hats did in fact come to $9,800.75.

This evidence, together with the other facts and circumstances ■ above referred to, and the fact that t^e purchaser was a business man (being a general commission merchant), and knew plaintiffs' to be manufacturers, amply justifies the verdict of the jury finding' that the cost, referred to by the parties was that assigned in the' lot-books. It is unnecessary, therefore, to discuss the question whether, conceding there was no evidence tending to show that these parties attach a different meaning to the word “ cost,” it devolved on the court, and not on the jury, to construe the meaning of the word as used by them; for the jury having given that construction which the court should have given, if it were within its province, a verdict will not be set aside for an error in submitting the question to the jury.

In this case, however, there was evidence given, in behalf of the' defendant, tending to show that the parties attached a different meaning to the word “ cost” as used by them. Mr. De Gomeau was satisfied of that at the time of the contract; he said to Mr. Blaylock, in the presence of Mr. Samuel: It will be necessary for me, in order to examine and ascertain the cost of these goods, to have a detailed copy of the mixtures. I said it was my intention to ascertain the cost, as I wished to be furnished with the mixtures, for the purpose of ascertaining the cost of these goods. He told me Mi'. Samuel would make it out and forward it, and Mr. Samuel said, Certainly, I will send it around to your hotel this evening.’ ”

This evidence, if credited, tends to destroy the effect of the evidence of Samuel, and also the effect of the necessary course of business of manufacturers in making up lot-books fixing therein to the cost of the manufactured articles a sum at which sales can be made without a loss, and tends strongly to show that the meaning attached by the parties to the word “cost” was the actual cost of the material and labor in the market, at the time of the purchase of the material and performance of the labor; and would, with other evidence in the case, have sustained a verdict finding that to have been the meaning of the parties.

On the part of the plaintiffs, however, it was testified that Mr. Be Comean said he only desired to have “a general idea of what the hats were made of, so that he could tell his customers the ingredients, or what the hats were made of—the name of the fur.”

Thus there was contradictory evidence as to the meaning attached by the parties to the word cost used by them; and hence it became a proper case for the jury to decide, as to what was the meaning they attached to it.

In deciding on this conflicting evidence the jury were at liberty to bring to their aid their own experience of things," the natural power of their reason, and an application of those principles on which they would act in their affairs of ordinary life; for, as Starkie says, it is by thesé aids they must necessarily decide (Starkie on Ev., vol. 1, p. 14); and, as Graham says, “ the idea of the superior qualification of juries to decide issues of fact is based upon the presumption that their association with everyday life gives' them" just views of men and things, and enables them to form correct conclusions. The judge not only may but ought to instruct them that in considering their verdict they are to make use of their own experience so far as it shall be the guide to their reason” (Graham on New Trials, vol. 8, p. 833.)

They have the right to draw from proven or known facts such inferences and considerations as their power of reason and general experience teach them to be the usual or necessary consequence thereof, and in so doing to bring to their aid their experience of the motives that govern human action generally, or of human action under the particular circumstances of the case before them, and also their experience in the daily transactions of life, including necessarily their experience (if they have any) in transactions of the nature of the one out of which the cause before them may have arisen.

True, the law now is (although formerly it was different) that the jury cannot decide an issue on their own personal knowledge of the facts in dispute; but when certain facts are proved they may draw from them such inferences and conclusions as their experience or power of reason teaches them to be ordinary or necessary concomitants or consequences of the proven facts.

Appellants’ counsel has misapprehended the charge in this case. He makes the point that, by the charge, the jury were permitted to find for the plaintiff, on their general experience as to the meaning of the word cost, without any evidence on that subject.

Not so. It has already been shown that there was sufficient evidence that the parties, when they used the word “ cost,” referred to the sums set down in the lot-books, as the cost of the articles, to carry the case to the jury, and that there was evidence for the other side tending to show that actual cost was referred to. The judge left it to the jury to determine what the parties referred to when they used the word cost,” charging them that they must decide the point from the circumstances in the case, applying thereto their general business experience in matters. of that kind, as men of ordinary reason and experience. This is the sole effect of the charge and is perfectly proper.

It is true the judge told the jury there was nothing said, particularly referring to the lot-book, overlooking the evidence at folio 167. We cannot, however, say that the jury overlooked that testimony, or that they'excluded it from their consideration. On the contrary, we must assume that, notwithstanding the charge of the judge, they had that evidence in mind when considering this verdict. —

As the case was tried on the theory that plaintiffs were bound to show that the contract was to pay the cost assigned to the goods in the lot-books, and two dollars a dozen in addition, or else wholly failed, it is obvious that it was wholly immaterial whether the books stated the exact cost or not, unless the costs had been fraudulently exaggerated in the books; and it is also obvious that the books were competent evidence of the costs therein stated.

Judgment affirmed, with costs.

Barbour, Ch. J.

(dissenting). This was an action to recover the difference between the contract price and the actual value of eighty-four cases of‘ hats, contracted to be sold by the plaintiffs to the defendants.

The testimony of the witnesses upon the trial showed that an agreement was made between the plaintiffs, who were hat manufacturers, and the defendants, whereby the latter undertook to purchase, and the former to sell and deliver, the hats in question, at and for the price of two dollars per dozen over and beyond the cost of manufacture. Evidence was also given on the part of the defendants, tending to prove that when that bargain was made, and as a parí and parcel thereof, the plaintiffs also undertook and promised to furnish the defendants with a detailed statement of the mixtures used in making the hats, so as to enable the latter 'to estimate their cost; and the plaintiffs gave testimony tending to show that such promise to furnish a statement formed no part of the contract of sale, but was .made subsequently thereto, and was entirely independent .of it.

Sobn after the making of the .contract, the hats were sent by the plaintiffs to the defendants, but without any bill or statement showing the mixtures or the cost of the goods. The defendants thereupon telegraphed and wrotfe several times to the plaintiffs for the promised statement, and, not being able to obtain such an one as was satisfactory to themselves, finally returned the hats to the plaintiffs, upon the ground that the promise to furnish the statement was a part of the main contract, and that they were not bound to take and pay for the goods unless it was furnished to them. Upon the return of the hats, the plaintiffs sold them at auction, after notifying the defendants (of the intended sale, and then brought this suit.

The plaintiffs were permitted, against the objection and exception of the defendants, to prove upon the trial, by the production of certain extracts from a book of theirs, called a “ lot-book,” and the testimony of witnesses, the sums at which they had estimated in detail the cost to themselves of the various parcels of hats which were sent to the defendants. But the evidence given upon the trial to prove what the actual cost of the hats really was, was wholly insufficient fpr that purpose; and so the court ultimately charged, the jury. When the plaintiffs rested their case the defendants moved to dismiss the complaint, upon the ground of the entire failure of the plaintiffs to prove the cost of the hats, which motion was denied, and an exception taken. Several other exceptions were also taken during the progress of the trial, and upon the charge of the court.

I know of no principle of law which would have allowed the introduction of the extracts from the plaintiffs’ “ lot-hook,” to prove the sums at which the plaintiffs had estimated or calculated the cost of the hats, together with the further evidence upon that subject, imless it was done for the purpose of enabling the plaintiffs to prove that they had acted in good faith in sending to the defendants the statements showing what the former really believed to have been the cost of the hats, and had thus substantially performed that part of the agreement which required them to send a statement of the cost to the defendants. Upon that theory, and to enable the plaintiffs to show that even if the agreement to furnish such statements was to be considered as a condition precedent to a demand of payment, it may be that the evidence was properly admitted; for, it will be borne in mind, it was a statement merely, and not legal evidence, that was to be furnished. In the view I take of a much more important question, however, I deem it unnecessary to express an opinion upon that point.

In his charge, the learned justice told the jury sxibstantially that it was for them to determine what the terms of the contract were, and if they should find the agreement to have been that the defendants were to pay such cost as the manufacturers had assigned to the goods on making up their statement, with two dollars per dozen added thereto, then the plaintiffs were entitled to recover; and the verdict,"undoubtedly, was based upon that direction.

As the evidence upon the agreement touching the statements to be fxxrnished to the defendants and the details of the estimates d'f cost which the plaintiffs had entered in their “ lot-book,” was exceedingly voluminous and complicated, it is not surprising that the judge should have fallen into the error of supposing, as he evidently did, that some evidence. had been given that the estimate which the plaintiffs had made and placed upon their “ lot-book ” as the cost of the hats was, by the terms of the contract, to be considered and taken as the cost of manufacture ” mentioned therein, and agreed upon. In fact, however, the plaintiff and the defendant who made the agreement both stated, in their testimony, that the price was to be two dollars per dozen over and above the cost; or, rather, to be more exact, the plaintiff said that the price was to be two dollars per dozen over the cost of manufacture,” while the defendant stated it to be two dollars a dozen profit, above the costs; ” and there was no evidence, so far as I have been able to discover, tending to show that the parties, or either of them, then attached any meaning to the word cost,” other than its legitimate and usual one. When, therefore, the learned judge told the jury that the plaintiffs had not proved what the actual cost of the goods was, he virtually determined the action in favor of the defendants, and the further direction to the jury, which is the subject of the exception under consideration, was consequently erroneous; and, for that reason, as well as because the court erred in refusing to dismiss the complaint, the judgment should be reversed and a new trial directed, with costs to abide the event.

I may add, I think, without impropriety, that I am unable to perceive any principle upon which the plaintiffs can be entitled to recover in this action, unless they succeed in proving upon the trial what the goods actually cost, or that the term cost,” or cost of manufacture,” as employed by the contracting parties, had, >in the trade, or in mercantile parlance, a definite though technical meaning, different from that which the words themselves impart in their ordinary use. It may be difficult, or even impossible, for them to do this ; but, if so, that will not be the fault of the law or of the court, but that of the plaintiffs themselves, who should have seen to it that their bargain was such an one as they would have the power of enforcing by means of proper proofs.