The Federal Reporter with Key-Number Annotations, Volume 251: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, October, 1918. Page: 15
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CENTRAL COMMERCIAL CO. V. JONES-DUSENBURY CO.
that plaintiff, after due notice to defendant, sold the same at less than the
contract price, whereby there became due to plaintiff from defendant upon
breach of said contract damages in the sum of $4,500, for the recovery of
which sum this suit was instituted.
On the trial the proceedings were such that the jury rendered a verdict in
favor of plaintiff, and found against a certain set-off to such damages filed by
defendant for $3,845.77; motions to direct a verdict having been duly made
and denied, and exception saved. On submission being duly made, the jury
made affirmative answer to the following three questions:
(1) Were all the barrels of rosin which were delivered or tendered by plain-
tiff to defendant manufactured by A. E. Turner & Co.?
(2) From the evidence respecting the course of dealing between the parties
under the contract, do you find that it was the understanding and' intention of
the parties that the plaintiff had the right of possession or control of the
goods in controversy until they were paid for?
(3) Did plaintiff exercise due diligence in selling the 578 round barrels at
Pensacola?
Motion for new trial was made and denied. The errors assigned are:
(1) That the court received evidence of a trade custom that rosin is delivered
only when payment is made therefor, whereas the same was not pleaded and
was inconsistent with the contract.
(2) That the court received extraneous evidence of the course of dealing
with reference to shipping, etc., because such course of dealing was not pleaded
and the contract not ambiguous.
(3) That the court received in evidence a certain salesbook claimed not to
be competent.
(4) That the court received evidence that plaintiff stored, took out ware-
house receipts for, and insured rosin in its own name.
(5) The court overruled the several motions for instructed verdicts and
in arrest.
(6) The court instructed the jury to include interest not recoverable as
damages.
Frank Crozier, of Chicago, Ill., for plaintiff in error.
S. S. Gregory and Albert S. Long, both of Chicago, Ill., for defend-
ant in error.
Before KOHLSAAT, ALSCHULER, and EVANS, Circuit Judges.
KOHLSAAT, Circuit Judge (after stating the facts as above).
(1, 2] The trial court found that the contract was ambiguous in re-
spect to the intention of the parties with regard to the matter of pos-
session. To make the terms clear he admitted proof of the custom of
the trade and the course of business between the parties, showing in
whose name the warehouse receipts were taken out, the methods follow-
ed in loading into cars, payment, and evidence as to other matters in-
volved deemed obscure in the contract, and necessary in arriving at an
understanding of the conduct of the parties following their agreement.
We are of the opinion that the contract was obscure in the respects
indicated by the trial court, and that the court was justified in receiv-
ing the evidence complained of. In doing so the contract was not mod-
ified. Nor was it essential that the customs and matters constituting
the extraneous matters introduced be pleaded. The testimony was
as to a general custom prevailing in the rosin trade, wherever located.
The evidence was competent. Steidtmann v. Joseph Lay Co., 234 Ill.
84, 84 N. E 640, in which it is said:
"The testimony of witnesses is admissible to explain not only technical
words of art or science, but words or phrases having a local meaning or a
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The Federal Reporter with Key-Number Annotations, Volume 251: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, October, 1918., legislative document, 1918; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38822/m1/28/: accessed March 28, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.