Geo. W. Robinson & Co. v. Hyer Bros.

35 Fla. 544

• Court: Supreme Court of Florida
• Decided: January 15, 1895
• Status: Published

Opinion

Mabry, C. J.:

Before considering the assignments of error insisted on by counsel for appellants, a brief statement of the issues made by the pleadings is necessary. The first special count alleges substantially that plaintiffs had a contract to deliver lumber for resale in Europe, and in order to carry out their contract, made a contract with defendants for the latter to furnish lumber identical in specifications with the contract the former had to deliver lumber for resale in Europe, of which fact •defendants had knowledge; that afterwards defendants agreed with plaintiffs, for a consideration stated, to hold them harmless against any just reclamation upon the cargo in consequence of its not being in accordance with the contract between the parties; and that the lumber was not in compliance with said contract in particulars mentioned, and in conseqence plaintiffs had to pay just reclamation amounting to $2,545.79. The fourth special count, referred to in the accompanying statement as the third additional count, is the same as the first special count, except the consideration therein mentioned for the making of the additional contract “C” is different. The cause of action relied on in the two counts referred to is for just reclamation under contract “ C.” The third special count, referred to in the statement as the second additional count, alleges the making of the contract by plaintiffs for the delivery of lumber for resale in Europe, the execution of the contracts with defendants, as shown by exhibits A and 33, with knowledge-on their part of the purpose for procuring the lumber, the same as in the first count; and further, that defendants failed to comply with their said contract in particulars mentioned, so that when the lumber arrived in Europe at the place of its delivery it was worth much less than it would have been in the market there, and much less than it would have been under the terms of the contract for resale, the difference in value being much more than $2,545.79, but plaintiffs by great diligence and care reduced the difference to that sum. This count is upon a breach of the contracts expressed in exhibits A and B, and the damages, claimed under it is the difference between the market value of the lumber in Europe and what it would have been if it had been in accordance with defendants’ contracts, and also the difference in value of the lumber delivered and what it would have been under the terms of plaintiffs’ contract for delivery and resale in Europe. The second special count, referred to in the statement as the first additional count, alleges the making of the contract by plaintiffs for the delivery of lumber for resale in Europe, the execution of the contracts with defendants, shown by exhibits A and B, with knowledge on their part of the prapose for which the luinber was procured, the same as in the first special count; and further, that defendants failed to comply with their said contracts in particulars mentioned, and that, confessing the lumber to be inferior to that required by their contract, and in consideration thereof, defendants agreed with plaintiffs to hold them harmless and fully indemnify them against all loss and damage of every description which they might sustain by reason of such difference in the lumber. The damages alleged under this count is for marine insurance, inspection of the lumber in Europe, just reclamation and the reduced price received by plaintiffs from buyers, amounting to §2,545.79. The.pleas do not put in issue the making of the' contracts, represented by exhibits A, B and C, nor the purchase of the lumber by plaintiffs from defendants for delivery and resale in Europe, with a knowledge of this fact by the latter. The making of the alleged contract set'u'p in the count referred to in the statement as the first additional count is denied, and also the noncompliance with the terms of the contracts between the parties, and the existence of any indebtedness on the part of defendants are put in issue.

'The assignments of error insisted on here relate to the admission of certain testimony given by W. K. Hyer for plaintiffs, and the refusal to give certain instructions requested by defendants. W. K. Hyer was a member of the firm of Hyer Brothers, and testified to the making of the contracts expressed in exhibits A and B, and that defendants were notified of the probable arrival, and of the actual arrival, in Pensacola of the vessel chartered to transport the cargo of lumber to Europe. He stated that about the time of the arrival of the vessel in the port of Pensacola, Hyer Brothers sent an inspector to the mill of defendants, which was in Escambia county, for the purpose of inspecting the lumber, and that he was sent away by defendants, and not allowed to do the inspecting. The inspector sent out by plaintiffs had been sent from Mobile, Alabama, by their European buyers, and it was claimed by defendants that he was not a licensed inspector under the laws of Florida. Another inspector was procured by plaintiffs, and still further objection was made by defendants to his inspection of the lumber. The vessel in the meantime was getting ready to receive the lumber, and at this juncture a personal interview was had between witness, representing the plaintiffs, and a member of the firm of Robinson & Co., •at the mill of the latter. After examining the lumber at the mill and looking over the kind that had been rejected by the inspectors, the member of the firm of Robinson & Co. stated that with such lumber thrown •out, they did not have enough to fill the bill, and asked witness what they should do about it. Witness said: “I do not know, Mr. Robinson, what we are going to do. And he knew that the money would not be paid by the buyers of the cargo unless the buyers’ inspector was allowed to inspect and approve the cargo. I said, if you ship that cargo I will get out of it all that I can. He said, I will do it; he said he would stand between us and all loss. And we prepared and he signed the writing marked exhibit “C” attached to the declaration, as a result of that conversation.” The conversation preceding the making of the contract was objected to as not admissible to vary the contract. The court overruled the objection and admitted the evidence, and defendants excepted. The conversation objected to was contemporaneous with the execution of the contract shown by exhibit C, and in fact the witness says that the contract was prepared and signed at the time, as a result of the conversation. The rule is, that parol contemporaneous evidence is not admissible to contradict or vary the terms of a valid written instrument. Solary vs. Webster, 35 Fla.; 17 South. Rep. and authorities cited.

The general rule stated is not questioned by counsel for appellees, but he insists that in order to arrive at a correct meaning or application of the language of a contract relative to the subject-matter thereof, the surrounding circumstances may be considered. It is true that in arriving at the real intention of the parties, as shown by the language employed by them in a contract made, and in order to make a correct application of the terms used to the subject-matter and the objects referred to in the contract, the situation of the parties ¡and the surrounding facts and circumstances may be considered by the court construing the contract. Solary vs. Webster, supra; Pensacola Gas Co. vs. Lotze’s Sons & Co., 23 Fla. 368, 2 South. Rep. 609; 1 Addison on Contracts, m. p. 182. It must be borne in mind, however, that it is the language of the contract itself that the court must construe, and where the parties have deliberately employed terms to express their meaning, it is not competent to substitute, by parol, other terms and construe them. It was said in Jenkins vs. Lykes, 19 Fla. 148, S. C. 45 Am. Rep. 19, that “a written contract which is intelligible on its face must control, the parties understanding fully what the contract contains. Testimony should not be admitted to prove that a contract, clearly expressed, means a different thing from that which is so expressed.” When the parties reduce their agreement to writing, no other language employed by them in making the contract can be resorted to except that furnished by the contract itself. Dent vs. North American Steamship Co., 49 N. Y. 390. It was, in our judgment, an infraction of the rule to permit the -witness to testify as to what Robinson said at the time of the making of the contract, about standing between plaintiffs and all loss. Whether the terms in the contract to hold plaintiffs-harmless against any just reclamation upon cargo, mean the same thing as to stand between them and all loss, is a different thing, but it is not competent to put in evidence what the parties said at the time of making-the contract.

After the execution of the contract shown by exhibit “C,” defendants procured their own inspector and commenced furnishing lumber for the vessel. Pending the loading of the vessel plaintiffs discovered that the-lumber was not in accordance with the specifications in contracts A and B, as they thought, and wrote several letters to defendants calling their attention to the. fact that the lumber was inferior in particulars pointed out. During that time Hyer testified that he talked the matter over several times with a member of the-firm of Robinson & Co., and that member said to witness more than once that he would stand between plaintiffs and all loss. That they should not lose a cent. On cross-examination the witness testified that Robinson said ‘'they would hold us harmless against all loss. The conversation took place while the vessel was loading, and possibly after the vessel was loaded, as-we had several conversations. After we made the contract called C, we had several conversations. We-never refused to receive the lumber after making the' contract C. The buyers chartered the vessel. Mr. Robinson had no contract with the buyers; his contract was with us. Mr. Robinson could not have put their lumber on board the ship unless we agreed to it. I never refused to let him put it -on board, except protesting as to the character of the lumber. I was relying at that time upon contract C, and thought he would' hold us harmless.” Defendants’ counsel moved to exclude the testimony as to the promise to hold plaintiffs harmless against all loss because it was without consideration. The refusal of the court to grant the motion was excepted to and assigned as error here.

The circumstances under which the alleged promise-was made to hold plaintiffs harmless against all loss-have been in part stated. A disagreement had arisen between the parties as to the quality of the lumber called for by contracts A and B, and a further agreement had been entered into in reference to the cargo of lumber, as shown by exhibit “C.” This further, or additional, contract referred to the former ones, and expressly stipulated that the cárgo should be shipped, in accordance with contracts dated Juné 22nd and July 30th, 1885. Plaintiffs were under contract to furnish lumber of certain specifications to European buyers, and the defendants knew that the lumber they were to-furnish was to be used by plaintiffs to supply their European purchasers. The testimony shows this. It is not questioned here that it was competent for the-parties to make a further, or additional, parol agreement in reference to the cargo of lumber after the execution of the contract shown by exhibit C, the contention being that such an agreement can not be relied on unless there was a consideration to support it, and that there was none in this case. Counsel for appellees insists that there was a consideration for the promise, and farther, that if the promise to hold plaintiffs harmless against all loss was a new promise, it required no new consideration, as such promise was supported by the consideration in the original agreement. The authorities cited from the Wisconsin court in support of the latter position hold that the consideration existing in an original executory contract is considered as Imported into any new parol modification, and that the new agreement, when made, becomes binding upon the parties without any further or new consideration. Lynch vs. Henry, 75 Wis. 631, 44 N. W. Rep. 837; Ruege vs. Gates, 71 Wis. 634, 38 N. W. Rep. 181. The general rule, that a written contract not under seal may be varied or added to by subsequent oral agreement upon a sufficient consideration as to its terms to be performed in the future, is well sustained by many authorities. Tischler vs. Kurtz Bros., 35 Fla., 17 South. Rep.; Wheeler vs. Baker, 59 Iowa, 86, 12 N. W. Rep. 767; Hastings vs. Lovejoy, 140 Mass. 261, 2 N. E. Rep. 776, S. C. 54 Am. Rep. 462; Conover vs. Stillwell, 34 N. J. Law, 54; Hasbrouck vs. Winkler, 48 N. J. Law, 431, 6 Atl. Rep. 22. It was decided in Spann vs. Baltzell, 1 Fla. 301, S. C. 46 Am. Dec. 346, that, as a general rule, a verbal agreement between the parties to a written contract, made before or at the time of the execution of such contract, is inadmissible to vary its terms or affect its construction; but, after the contract is reduced to writing, it is competent for the parties at any time before the breach of it, by a new contract, not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, subtract from, or vary, or qualify the terms of it, but that in such cases the substituted oral agreements being considered in the light of new contracts, it is requisite that they be made upon some new and valuable consideration. This is the view taken by this court, and it is sustained by ample authority. We are of the opinion, however, that there was sufficient consid-eration in the present case to support the promise to hold plaintiffs harmless against all loss in reference to the shipment of the cargo of lumber. In speaking of a parol modification of a written contract, the court-said, in Hastings vs. Lovejoy, supra: “While recognizing and giving effect to the rule of law, that a creditor can not bind himself by-a simple agreement to accept a smaller sum in lieu of.an ascertained existing debt of a larger amount, because such agreement is without consideration, courts have nevertheless often declared that the rule is not to be extended beyond its precise import, and, especially if a consideration for such agreement is found to exist, of which the law can take notice, that courts will not inquire into its adequacy.” In Conover vs. Stillwell, supra, it is said: “A consideration emanating from some injury or inconvenience to the one party, or from some benefit to-the other party, is a valuable consideration.” Plaintiffs were, as above stated, under contract to supply their European buyers with a certain cargo of lumber, and the latter had chartered and sent over a vessel for-the purpose of transporting the lumber. While the-lumber was being loaded on the vessel frequent protests were made by plaintiffs to defendants that the-lumber was not such as they had agreed to furnish. By contract C defendants expressly agreed to ship the-lumber in accordance with contracts A and B, and plaintiffs had the right to demand that the lumber-come up to the requirements of said contracts. It was a serious detriment to plaintiffs to allow an inferior-cargo to go to Europe, as they would be liable under-their contract with foreign buyers for a failure to comply with it. Plaintiffs controlled the loading of the vessel, and without their consent defendants could not have put the lumber on the ship. It is true that plaintiffs did not refuse to permit the defendants to load the vessel, but it was ^during the loading that the promise was made to hold plaintiffs harmless against all loss, and they had a right to rely upon such assurances and permit the cargo to go over. But it is said that plaintiffs were relying upon contract C, and can not recover upon the other agreement. It is true they were relying upon contract C, as shown by the evidence, but it does not appear that they were not also relying upon the special agreement made at the time when the protests were made that the lumber was not according to contract. It was competent for the parties to make the special contract, and if there was a consideration to support it, of which the law can take notice, its adequacy will not be closely scrutinized by the courts. In this case there was such consideration, in our judgment, and the court did not err in admitting the evidence. In this connection we state that we regard the agreements made by witness Hyer and the member of the firm of Robinson & Co. as made for and on behalf of their respective firms. In some of the conversations given the member of the firm of Robinson & Co. is represented as saying that he would protect or save harmless Hyer Brothers from all loss, and in other portions he promises for his firm. The negotiations, as is apparent, had reference to the contracts between the firms, and we so consider them.

The next exceptions to the testimony of the witness Hyer relate to the competency of the evidence as to the payment by plaintiffs of marine insurance and expenses for inspection and to adjust the loss on the cargo in the European port. The objection is, that such items are not recoverable at all against defendants. The testimony shows that plaintiffs sold to the European buyers cash, “f. o. t>.,” upon satisfactory inspection by an inspector approved by them, and that had such inspection been permitted by defendants, plaintiffs would not have had to pay insurance on the -cargo, as such expense would have been borne by their buyers. Nor would there have been any necessity for any inspection or adjustment of losses in Europe had the lumber been in accordance with the contracts between plaintiffs and defendants, and approved by the foreign buyers’ inspector. The proof further shows that the lumber was not approved in the Pensacola port by European buyers’ inspectors, and was rejected in the European market as not being in accordance with plaintiffs’ contract to sell. Plaintiffs had to pay insurance on the cargo, and also expense in having-lumber inspected in Europe. Under the objections we are considering, it is not claimed that the insurance and the expenses incurred by plaintiffs in Europe were unreasonable, or not established by proper evidence, or that there was not testimony sufficient showing that -the lumber was not in accordance with the terms of the contracts, either between plaintiffs and defendants or the foreign buyers. There was testimony other than that of Hyer tending to show that the lumber was not .according to specifications in the contracts. Whether such items'of damage' are recoverable under the contracts shown by exhibits. A, B and C, we need not determine, as we are satisfied that it was proper to' prove such damage under the special count on the promise to hold plaintiffs harmless against all loss on The cargo. We do not understand that counsel for appellants claim such items would be improper if plaintiffs can rely upon the special promise to hold them harmless against all loss, the contention being-that such promise can not be sustained, and that under-fire other contracts such items of damage would be-improper..

Another assignment of error is, that “the court erred in admitting the testimony of W. K. Hyer as to-the profits which would have been made by appellees on their sub-contract with G. Alberts, Sons & Co.” The named firm were the purchasers from plaintiffs of the cargo of lumber in question. The testimony of the-witness Hyer shows that part of plaintiffs’ demand, was the difference between the price to be paid by plaintiffs for the lumber to defendants and the price contracted to be paid to plaintiffs by G. Alberts, Sons & Co. It is insisted that the difference between the price at which plaintiffs bought and the price at which, they had contracted to sell was not the legal measure of damages, but the true measure is the difference between the price at which they bought and the market value at the time and place of delivery. This, as a-general rule, is a correct way of ascertaining damages, but it is not the exclusive manner in all cases. The-primary object in awarding damages at common law is compensation to the injured party, but the damages allowed for this purpose must be the natural and proximate result of the wrong done. Hodges vs. Fries & Co., 34 Fla. 63, 15 South. Rep. 682. The general rule-for awarding damages for a breach of a contract for the sale and delivery of personal property is the difference-between the contract price and the market value at the-time and place of delivery as fixed by the contract. Merritt & Son vs. Wittich, 20 Fla. 27. This is not, however, as just stated, the invariable rule in all cases. In speaking of the general rule on the subject the Hew-York court said, in the case of Messmore vs. New York Shot & Lead Co. 40 N. Y. 422: “This rule, however, is changed when the vendor knows that the purchaser has an existing contract for a resale at an advanced price, and that the purchase is made to fulfill such contract, and the vendor agrees to supply the article to enable him to fulfill the same, because those profits which would accrue to the purchaser upon fulfilling the contract of resale, may justly be said to have entered into the contemplation of the parties in making the contract. This rule is based upon reason and good sense, and is in strict accordance with the plainest principles of justice. It affirms nothing more than that where a party sustains a loss by reason of a breach of a contract, he shall, so far as money can do it, be placed in the same situation, with respect to damages, as if the contract had been performed.” See also on the same subject, McHose vs. Fulmer, 73 Penn. St., 365; Chicago, Burlington & Quincy R. R. Co. vs. Hale, 83 Ill., 360, S. C 25 Am. Rep., 403; Bell vs. Reynolds & Lee, 78 Ala., 511, S. C. 56 Am. Rep., 52. There is no question in the case here that plaintiffs had a contract for a resale of the cargo of lumber and that the purchase was made from defendants expressly to fulfill such contract and the latter knew it, and wTe think the profits which would have accrued from such resale are recoverable, especially as plaintiffs could not, as shown by the testimony, procure other lumber of like kind in the market where delivery was to be made.

The other exception to evidence insisted on here is, that “the court erred in admitting the testimony of W. K. Hyer as to the indemnity paid by appellees to Gr. Alberts, Sons & Co.” The amount of this indemnity is $862.80, and paid by plaintiffs to their buyers on account of the failure of the lumber to come up to the requirements of the contract between them. The witness stated that the amount mentioned was what plaintiffs paid their buyers on final settlement of their claim for damages for breach of contract. It is insisted that it was incumbent upon plaintiffs to show that this sum was legally recoverable as damages against plaintiffs by their buyers, and that the burden upon them was not met by showing they paid a lumping sum without showing what it was for. It is true that it would not be sufficient for plaintiffs to show they paid a sum as damages or reclamation, without also showing what such sum was for, and that it was just and proper. There is other testimony than that of the witness Hyer as to the item paid by plaintiffs as in-demnity or reclamation, and we are satisfied from an examination of it that the amount paid was just and reasonable. Tt is not contended in this connection that the other testimony in reference to the adjustment of the indemnity was incompetent or insufficient. Tt was not improper of course for the witness to testify that Hyer Brothers had paid the amount which had been awarded against them in the adjustment.

The only other exceptions insisted on by counsel for appellants relates to the refusal of the court to give certain instructions requested for defendants. The charges that assert the only correct measure of damages to be the difference between the price at which plaintiffs bought and the market value at Antwerp, are incorrect, and what has been said is sufficient to dispose of them. The rule, that in eases of executory contracts for the sale and delivery of personal property, the right to damages on the ground that the goods are not in compliance with the contract, does not survive the acceptanee of the property by the vendee after an opportunity to ascertain the defects, unless notice is given to the vendor, or an offer to return the property, does not apply in this case. The inspection of the lumber was left entirely with defendants under contract C, and while the loading of the vessel was permitted by plaintiffs, it was done under agreement that they should be held harmless against any just reclamation and all loss. This was not a case where a purchase had been made and goods received without objection after a full opportunity had been afforded of ascertaining the defects. The difference between the present case and the cases cited by counsel for appellants from New York is shown by the case of Messmore vs. New York Shot & Lead Co., supra.

The charges requested, and based upon the view that plaintiffs could not recover after they had received the lumber, or a part of it, were, we think, correctly refused, on the facts of this case.

- The charges, on the theory that defendants could not be bound by any agreement between plaintiffs’ purchasers of the lumber and the latter’s purchasers in reference to receiving the cargo, or any part of it, assert a correct proposition of law, and such charges could have been given. In the proof of the adjustment of the loss it appears that Alberts, Sons & Co., plaintiffs’ purchasers, had a contract with the Belgian government to take the lumber, and in the adjustment it was arranged for the lumber that was in accordance with the contract to be forwarded to the government mentioned. The defendants could not be held liable for any loss or damages growing out of any contract between the purchasers from plaintiffs and any third parties, as such loss or damage would be too remote, and could not be said to have been in the contemplation of the parties at the time of making their contract. The court did. not instruct the jury that they could consider such agreement in arriving at a verdict, and from a consideration of the evidence we are satisfied that the defendants were not injured by the refusal of the court to give the instructions mentioned.

The evidence shows that $1,682.99 of the amount-allowed by the jury was for marine insurance, the-expenses attending the inspection of the lumber at Antwerp, and the difference between the price at which plaintiffs bought and the price at which they had contracted to sell, all of which, we have seen, were proper to be estimated by the jury, and as to the establishment of which there is no conflict in the evidence. An additional sum of $862.80, claimed by plaintiffs as indemnity, or reclamation, paid on the cargo, was-allowed, and the sums mentioned make the entire amount of the verdict. Indemnity on the cargo was clearly recoverable as damages for a breach of the contracts between plaintiffs and defendants, and, as before stated, we are impressed with the view that the testimony establishes the fact that the indemnity paid by plaintiffs was just, and a proper demand against the cargo. The result is, that the verdict rendered is amply sustained by the evidence, and substantial justice has been done.

The error in admitting the evidence as to what Robinson said at the time of executing the contract “ C,” is harmless, for the reason that substantially the same-agreement thereby sought to be established was subsequently made upon a sufficient consideration. A judgment should not be reversed for technical error where it affirmatively appears that no harm was thereby done to the party against whom it was committed. It was held by us in Jacksonville, M. & P. Ry. & Nav. Co. vs. Warriner, 35 Fla., 197, 16 South. Rep. 898, that where the court refuses upon request to give to the jury an instruction which embodies a correct and appropriate proposition of law, but it clearly appears from the undisputed facts of the case that the verdict was amply sustained by the evidence, and if the instruction had been given it could not possibly have effected the verdict, the error will be held immaterial, and the judgment will not be reversed on that account.

The judgment in this case should be affirmed, and it will be so ordered.