Sholl v. Prince Line, Ltd.

109 A.D. 591, 96 N.Y.S. 368

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1905
• Status: Published

Opinion

Houghton, J.:

The plaintiffs proposed in writing to defendant’s agent in July, 1897, to ship by its line 56,666 boxes of macaroni from Haples to Hew York “without time limit” at five pence per hox, provided defendant would refund to plaintiffs one penny per box on the completion of arrival of each 16,666 boxes. Other conditions were contained in the proposal, all of which were formally accepted by letter.

During the year 1898 plaintiffs made two shipments by defendant’s line at three and a half pence per hox without claim of rebate# and fitially from the latter part of the year 1899, by various shipments completed the quota ef 16,000 boxes at fit# ptoee and demanded the rebate, which defendant refused to pay, and this action was brought therefor.

On the trial plaintiffs proved their written contract and shipment and rested. The defendant claimed that the phrase “ without time limit ” was ambiguous and offered to show the circumstances surroúnding the making of the contract and the antecedent parol negotiations connected therewith. This evidence the trial court refused to receive and, we think, improperly.

One of the conditions which plaintiffs imposed in their proposal to the -defendant was that it should furnish a regular monthly steamship service. The plaintiffs’ interpretation of the contract is that they have the right to make shipments at the terms provided during an ordinary lifetime at least, and hence, that defendant must maintain a regular monthly service for their accommodation during that period. The defendant insists that the phrase “ without time limit ” was understood by the parties to have a much more restricted meaning and referred only to the colder season o'f the fall and winter following the making .of the contract in which condition of the weather macaroni is ordinarily shipped.

We think it quite' clear'that .the language of the contract is so ambiguous as to permit parol proof of the negotiations had between the parties for the purpose of pointing out their intent in the use of the phrase “ without time limit.” Where language is ambiguous or susceptible of more than one construction or is vague or general,, or inappropriate to express the true intent, extraneous evidence is admissible to explain, and an antecedent parol agreement may be proved to show the intent of the parties. (Springsteen v. Samson, 32 N. Y. 703; Emmett v. Penoyer, 151 id. 564.)

With such light as parol evidence might throw upon the use of the- phrase, if the facts proven tended to show the use of the Words in a restricted sense, a question of fact might then be presented for the jury to determine whether or not plaintiffs’ shipments were within the contract, and whether or not the defendant was liable for the rebate of freight demanded. The questions of whether the contract was abandoned or whether without any explanation it should be construed to continue indefinitely or not, we neither discuss nor decide, as these will be for determination on the new trial.

The judgment-and order should-be reversed and a new trial granted, with costs to the appellant to abide the event.

O’Brien, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

‘ Judgment and order reversed, new trial ordered, costs to appellant to abide event.