Ellsworth v. Knowles

Contract to Sell and Deliver Apricots—Construction—Time of Payment—“Sight Draft Against Papers.’’—Under a contract to sell and deliver a specified quantity of apricots at an agreed price, the words “August Shipment. Sight Draft Against Papers,” do not contemplate delivery and payment as concurrent and dependent acts, but import a prior shipment by the seller, and the procurement of a bill of lading showing the shipment to be presented with a sight draft for payment.

Id.—Parol Evidence of Usage to Explain Contract.—If the language used in the contract be considered uncertain, it was proper to make it clear by parol evidence as to the usage of the trade or business in which the parties were engaged that payment was to be made on presentation of a bill of lading showing shipment. In such case usage is an instrument of interpretation, allowed by subdivision 12 of section 1870 of the Code of Civil Procedure.

Id.—Privilege of Buyer—Furnishing Lace Paper—“Allowance”—• Waiver—Notice to Sellers.—A privilege given to the buyer to furnish lace paper “with the usual allowance,” is a provision for the benefit of the buyer which he might waive, and which he did waive by notice to the sellers, while trying to obtain apricots to fill the contract, that they could use their own lace paper.

Id.—Contract of Buyer “to Furnish .Labels Free”—Time of Performance—Action for Breach—Estoppel.—Although the contract required the buyer “to furnish labels free,” and it appears that they were furnished after the time appointed for the seller to ship the apricots; yet if they were furnished before they were needed and before the sellers had procured any apricots to fill the order, and were received and retained by them to be used in marking the boxes of apricots, while they were representing that they would fill the order, and were trying to do so, the sellers are es-topped, in an action for breach of contract in furnishing no apricots, to urge that plaintiff did not comply with his contract to furnish labels free.

Id.—Uncertainty in Complaint—Weight of Boxes—Waiver—Certainty in Contract Proved—Support of Finding of Damages.— Though the complaint is uncertain and ambiguous in describing two distinct measures of weight of the boxes of apricots to be delivered, thus: “1850 12Yz pound kilo boxes choice apricots,” at an agreed rate, it appearing that twelve and one-half kilo boxes equal twenty-seven and one-half pounds, and that their total weight of 1850 of them would be 50,875 pounds, while the total weight of 1850 twelve and one-half pound boxes would be only 23,125 pounds; yet whether the uncertainty was waived by failure to demur or to object to evidence, and the contract proved was certain in describing “1850 12Yz kilo boxes, choice apricots” at the agreed rate, the court properly disregarded the word “pound” in the complaint, and a finding of damages based on the contract as to quantity is supported by the evidence.

Id.—Improper Allowance op Interest Before Judgment—Measure op Damages.—The court improperly allowed interest on the damages allowed for breach of the contract to sell and deliver the apricots, before judgment, from the date of the breach, no interest having been expressly mentioned in the contract. In such case, the measure of damages, exclusive of interest, is regulated by sections 3308 of the Civil Code and 3357 thereof.