Rosenstein v. Farish Co.

109 Misc. 411

• Court: City of New York Municipal Court
• Decided: November 15, 1919
• Status: Published

Opinion

Finelite, J.

At the close of the entire case the plaintiffs moved for a direction of a verdict in their favor, which was granted. The defendant thereupon moved for a new trial upon the ground that the defendant was precluded from offering evidence in reference to what was intended to be conveyed by certain agreements mentioned in the contract in so far as it applied to the interpretation of the conditions mentioned in the agreement entered into between the respective parties. The agreement in so far as applies to the question involved reads as follows:

“ Memorandum of Sale. The Farish .Company, Commission Merchants, 110 Worth Street, New York; telephone Worth 5334. March 1, 1918. Order No. 48 ERV. Sold to Morris Rosenstein & Bro., 65 Bleecker St., New York City. Quantity, about 60,000 yds. Lawns. Count, 56x52. Width, 39". Weight, not lighter than 8.00. Quality, First quality D/C as far as practicable. Price, 9%c. Terms: Net 10 days. Delivery, Half each September & October, equal weekly. At mill door with freight Alice, to N. Y. not exceeding 45c. CWT. Shipping Directions: Later. Goods on this order to be billed when ready for shipment, which will then be tendered to transportation company, and if refused will be held at mill or in storage subject to your instructions. If the production of the Gaston mill should be curtailed during the time above named by strikes, lockouts to counteract strikes, shortage of labor, or any casualty or accident or bankruptcy or insolvency of the mill, deliveries shall be made proportionate to the production.

“ The Fakish Company, Selling Agent;

“ Per (Signed) J. W. Valentine. HMS.”

(The italics are mine.) On the trial hereof it appeared from the facts herein that the defendant breached and violated said agreement by failing and omitting to make the deliveries in said agreement specified at the times therein named, and had delivered of said 60,000 yards only 20,366 yards thereof, leaving undelivered 39,634 yards of said merchandise, which they have omitted and refused to deliver, though delivery thereof had been demanded. It appears further that the current market price of said merchandise at the place and respective times at which "by the terms of said agreement it should have "been delivered was fifteen cents per yard. Thereupon the plaintiffs demanded an affirmative judgment in the sum of $2,000, which the court directed in their favor. The defendant contends that it was entitled to introduce testimony which it sought to introduce with respect to the labor conditions at the mill, and that it was error to exclude such testimony. The court refused to allow such testimony to be offered, holding that the language, “ shortage of labor or any casualty or accidentwas controlled in its meaning by the language which preceded it, namely, “ if the production of the Gaston mill should be curtailed. * * * by strikes, lockouts to counteract strikes.” As a phrase standing in connection with other expressions, “ shortage of labor ” modifies the provision for strikes as used parenthetically in relation to it, meaning thereby that shortage of labor resulting from strikes was to operate as an excuse for delay. Any other construction would be doing violence to the language used and to the intention of the parties as evidenced by the instrument. As this provision even contains no stipulation limiting shortage of labor as an excuse only when"' not within defendant’s control, it is, therefore, manifest that the parties could not be imputed with having had in mind any such definition or interpretation of the words “ shortage of labor ” as applicable to this contract. The parties provided against strikes and lockouts to counteract strikes and nothing else, and could have meant but that shortage of labor resulting from strikes should excuse non-performance. This interpretation may be given to the provision of the contract even without invoking the rule of ejusdem generis„ As we must construe this provision in the agreement as to the words used first, it is general in terms and should be construed under the rule of ejusdem generis. The doctrine under this rule is that where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase is to be held to refer to things of the same kind. This rule ordinarily limits the meaning of general words to things of the same class as those enumerated under them. By the application of this maxim, which is only an illustration or specific application of the broader maxim, “ noscitur a soeiis,” general and specific words which are capable of an analogous meaning, being associated together, take color from each other, so that the general words are restricted to a sense analogous to the less general. But it has never been supposed that the rule required the rejection of the general terms entirely, but only that they should be restricted to cases of the same kind as those expressly enumerated. But in statutory construction it must yield to another salutary rule of construction, viz., that every part of a statute should, if possible, be upheld and given its appropriate force. This rule in statutory construction is by no means a rule of universal application, and its use is to carry out, not to defeat, the legislative intent. When it can be seen that the particular word by which the general word is followed was inserted, not to give a coloring to the general word, but for a distinct object, and then to carry out the purpose of the statute, the general word ought to govern. It is a mistake to allow the “ ejusdem generis ” rule to pervert the construction. It has further been held in 13 Corpus Juris, page 537, section 501, as follows: “ The court will restrict the meaning of general words by more specific and particular descriptions of the subject matter to which they are to apply. Thus general words following particular or specific terms are restricted in meaning to those things or matters which are of the same kind as those first mentioned. And in like manner general expressions will be restricted by particular descriptions or additions following them.” In a note to the aforementioned section the reason for the rule is given as follows: “ The rule ‘ that particularization followed by a general expression will ordinarily be restricted to the former, is based on the fact in human experience that usually the minds of parties, are addressed specially to the particularization, and that the generalities, though broad enough to comprehend other fields if they stood alone, are used in contemplation of that upon which the minds of the parties are centred.’ To the same effect see Hoffman v. Eastern Wis. R. R., etc., Co., 134 Wis. 603, 607.” In Davids Co. v. Hoffmann-La Roche Chemical Works, 178 App. Div. 855, in construing the following clause in a contract for the sale of carbolic acid, in said clause it was stated by the court ‘ ‘1 Contingencies beyond our control, fire, strikes, accidents to our works or to our stock, or change in tariff, will allow us to cancel this contract or any part of the same at our option,’ ” does not relieve said company from liability on the ground that foreign countries from which it obtained its supply of carbolic acid have placed an embargo on its exportation since the outbreak of the war, especially where the purchaser offers to accept the domestic carbolic acid. The reasonable construction of the contract is to be found in applying to it the rule ejusdem generis, and the words “ fire, strike, accidents to our works or to our stock or change in tariff ” must be held to limit and qualify the “ contingencies beyond our control,” and to confine the happening which would justify the cancellation of the contract to those of a like nature to the one enumerated, which do not include an embargo.

In Haber v. Jacobson Co., Inc., 185 App. Div. 650, Blackmar, J., writing for the eoui*t, said it was held that the essential elements of executory contracts for the sale of goods are an obligation on the part of the vendor to deliver goods of a certain description to the vendee at some future time, and on the part of the vendee to accept and pay for the same. Such contracts should not be interpreted to give the seller control over those obligations providing it may reasonably be interpreted as giving him protection against contingencies over which he has no control. Where a broker’s memorandum of an executory contract for the sale of goods contained no condition except the words “ subject to being unsold, ” and the written confirmation by the seller, after acknowledging the receipt of a wire from their western house to the effect that the order had been booked and that prompt shipment would be made, was followed by the words “ subject to safe and sound arrival,” and it appeared that the goods were to come from Wisconsin, and at the time there was great demobilization in the transportation service which led to the government’s taking over control of the railroads, it should be held that the quoted words were inserted to protect the seller against risk of transportation, and that it is prima facie bound to complete the contract. In order to discharge itself from the obligation the seller must show a failure of sound and safe arrival; “ no arrival, no sale,” also renders the seller prima facie bound to complete the same. The intent that the seller shall ship the goods in question is as strongly indicated in the contract by the statement that it was instructing its western house to make prompt shipment as it would have been had the contract read “ goods to be shipped promptly to our western house.” In determining whether cases in which the words “ to arrive ” or “on arrival ” are held to import into the contract a condition precedent so that the obligation of the vendor is dependent on arrival, should be applied to modern business contracts, the changed conditions should be considered. Held, further,11 That the defendant was bound in good faith to the fulfillment of the contract. The intent of the parties was that it should be relieved if through fault of the carrier the goods did not arrive safe and sound. The evidence on this subject was in defendant’s own possession. It has failed to show that the non-arrival of the goods was due to causes other than its own act, neglect or fault, and, therefore, the judgment was right. The order should be affirmed, with costs.” The agreement involved herein has been prepared by the defendant and was accepted by the plaintiff relying upon the assurance that the merchandise would be delivered at the time as fixed in said agreement, and since the agreement is in the language of the defendant, if the meaning thereof is doubtful, must be construed favorably to the plaintiff. Gillet v. Bank of America, 160 N. Y. 549, 555; Marshall v. Commercial Travelers Mut. Acc. Assn., 170 id. 434. We must also give its words the meaning which the defendant ought reasonably to'have understood that the plaintiff would put upon them. White v. Hoyt, 73 N. Y. 505, 511; Nellis v. Western Life Indemnity Co., 207 id. 320, 332, 334; Moran v. Standard Oil Co., 211 id. 187, 196. The defendant by its agreement created a duty upon f itself, which by fair construction it was bound to ' perform, and it cannot be relieved from its per- : formance by applying different constructions to what was intended by its meaning. Thereupon the court was justified in excluding such proof as the defendant desired to offer in reference to the contingencies that may or may not arise or did arise which prevented the defendant from carrying out its agreement with the plaintiff by making the deliveries of the merchandise as called for in said agreement. Cameron-Hawn Realty Co. v. City of Albany, 207 N. Y. 377, 382; Town of North Hempstead v. Public Service Corpn., 107 Misc. Rep. 19; Cannistrici v. James C. Rives & Co., 165 N. Y. Supp. 933; Mawhinney v. Millbrook Woolen Mills, Inc., 105 Misc. Rep. 99; Cooper v. Mundial Trading Co., Inc., Id. 58; Ducas v. Bayer Co., Inc., 163 N. Y. Supp. 32. There was no objection as to the evidence offered by the plaintiff as to the market value of the goods and also as to its non-delivery. It follows, therefore, that the evidence sought to be adduced upon the trial on behalf of the defendant, such as the shortage of labor due to those causes mentioned, were not conditions against which the defendant is protected by this agreement, and that such evidence, therefore, was properly excluded. I have carefully read the authorities cited by the defendant, and from the recent construction by our courts of agreements somewhat similar I fail to see wherein the authorities relied upon by the defendant can be made applicable to the question involved herein. The motion for a new trial must, therefore, be denied, to which the defendant is entitled to an exception, with a stay of ten days and thirty days to make a case, if he so desires, after service of the order entered herein.

Ordered accordingly.