618

It is thus seen from this extract that the

jury were nowhere told that the plaintiff must return the stock replenished by the amount used so that the stock returned should be as large as the stock purchased. The rule of damages if the case had been one of rescission was incorrectly given.

under summary process (the plaintiff having | turn to the defendant the saloon and liquor resisted dispossession in three summary pro- business which he purchased together with any cess actions), the larger part of the stock profits made therein during the period of his was gone and the business very much dimin- occupancy." ished. Under these circumstances the plaintiff cannot be held as matter of law to have rescinded his contract with reasonable promptness after discovery of the fraud. Water Commissioners v. Robbins, 82 Conn. 642, 74 Atl. 938. For five months after knowledge he continued to enjoy the fruits of his conduct. He should be held to have waived by his conduct his right to rescind. The verdict of the jury necessarily found "In the plaintiff's complaint, gentlemen, you as a part of the agreement of sale the conwill notice at the end of paragraph 6, the paraditional bill of sale and also that the agree-graph headed, 'Plaintiff claims, first, $16,000 ment was induced by the fraudulent repre- damages; second, that the said agreement of sentations of the defendant. purchase and sale be delivered up and canceled; third, that the note referred to above be delivered up and canceled.' You will have nothIt ing to do with the paragraphs headed so. is only a question of whether or not the plaintiff shall recover damages or whether your verdict shall be for the defendant."

"The unquestioned rule of law is that a party seeking to avoid a contract on the ground of the fraud of the other party must offer to return to him whatever he has received under the contract and thus put him in the same condition in which he was when the contract was made." Disbrow v. Secor, 58 Conn. 38, 18 Atl. 981.

The plaintiff had had placed in his possession under this conditional sale the stock of goods and fixtures and equipment of and in the liquor store under agreement to maintain the stock as large as it was at the time of the transfer.

At the conclusion of the charge the court gave this instruction:

With this constant confusion of the issues of damages for fraudulent representations and for a rescission and no adequate or proper rule of damages given, the jury were in no position to consider the case fairly or intelligently.

The court followed the plaintiff's requests to charge pretty largely, and this undoubtedThe plaintiff continued to conduct the liq-ly accounts for the contradictory features uor business in this store for about a year, of the charge. The verdict was for $8,000, and on October 1, 1917, as the jury must have with interest at 5 per cent. from October 6, found, ascertained for the first time the 1916, up to date. The verdict followed the fraud practiced upon him. He on said day submission of the case to the jury as one of damages. The judgment entered was not demanded the return of the money he had paid the defendant, who refused to return it. only for the recovery of the $8,000 damages And the finding is that the plaintiff also of- in accordance with the verdict, but it adjudifered to release and discharge the defend-cated that the agreement entered into on Ocant from any agreement on his part to sell the said saloon. The plaintiff did not offer to turn over the store, fixtures, and stock to defendant, and to replenish the stock, or pay for the part of the stock he had depleted. And until he did that he failed to make out a case for rescission of his contract.

In charging as to the measure of damages the court instructed the jury as follows:

“If you find that the plaintiff is entitled to a verdict, then he is entitled to be replaced, so far as it is possible, to the position which he was in prior to the signing of this agreement with the defendant at the time of the purchase.

tober 6, 1916, be canceled and rescinded, and that the defendant deliver and cancel the note drawn by the plaintiff to the order of the defendant on October 6, 1916. So far as appears on the record, no adjudication was ever had of anything except the element of damages.

Further, the facts upon which these equitable adjudications were made are not recited in the judgment. Their presence in the judgment is not made a part of the appeal, but the impropriety of their being in the judgment is manifest. This does not exhaust the criticism which could properly be made of this record. But it does, as I think, show that this defendant has not had a fair trial, and it may be that serious injustice has been done him.

* * In other words, he is entitled to a return of the consideration with which he parted, which is represented by $8,000 in cash and whatever sum you find he has paid by way of He is also entitled to monthly installments. The principal answer to these considerainterest from the date when the various tions has been that they are not made a part amounts making up this sum were paid. against this he is bound to return to the de- of the appeal. That is true of the great mafendant, in so far as it is possible for him to jority of these. But the court may of its own do so, the consideration which he, the plaintiff, motion consider an error apparent upon the received from the defendant-that is, the saloon face of the record notwithstanding the failproperty. In other words, he is bound to re-ure to assign it as a reason of appeal. It

As

(107 A.)

INSTRUCTIONS.

ought not to do this when it can see that the | 5. SALES ~178(2)—ACCEPTANCE OF GOODSjudgment is substantially just; it ought to do it when this does not appear and the error is manifest. Cole v. Jerman, 77 Conn. 382, 59 Atl. 425; State v. Gannon, 75 Conn. 218, 52 Atl. 727. In my opinion this case is

within this rule. But we do not need to rely upon this as the basis of sustaining the appeal. One of the errors assigned is the refusal of the court to set aside the verdict. There was no evidence before the jury on which to base a verdict for damages for fraud, as there was no testimony of the value of the property transferred as represented and as in fact. And if the case be regarded as one of rescission, there was no evidence of an offer of restoration by the plaintiff.

That part of the charge detailing the facts before the jury to which we have referred and found erroneous was assigned as error 2.

(93 Conn. 670)

BROWN BAG FILLING MACH. CO. v.
UNITED SMELTING & ALUMI-
NUM CO.

Retention of possession without any claim indicating that the buyer had any fault to find with the goods held sufficient to justify instrucamounted to an acceptance. tion that retention under the circumstances

Appeal from Superior Court, New Haven County; Joseph P. Tuttle, Judge.

Action by the Brown Bag Filling Machine Company against the United Smelting & Aluminum Company. Verdict for plaintiff, motion to set aside or reduce verdict. denied, and defendant appeals. Error.

(Supreme Court of Errors of Connecticut. In February, 1916, the plaintiff, in FitchJuly 31, 1919.) burg, had on hand about 34,000 pounds of 192-INSTRUCTIONS-UNCONTRO- aluminum rods of various sizes, and the right by contract to about 4,400 pounds of alu

1. TRIAL
VERTED MATTERS.

The court did not err in stating in the pre-minum not drawn and to be specified. The liminary part of its charge the agreed substance of the pleadings and substance of defendant's order for aluminum as written and accepted, and as to which there was really no controversy. 2. SALES 364(6) — BREACH OF CONTRACT INSTRUCTIONS.

Since the meaning of a written contract is not to be determined by the relative ignorance or knowledge of the parties, where there is no claim of fraud or mistake, the court erred in instructing that jury might consider the experience or lack of experience, of the parties in the aluminum trade in determining meaning of "rod aluminum" in contract involved.

plaintiff was not a dealer in aluminum, but had this quantity of aluminum on hand as the result of his failure to place a contract requiring the use of aluminum. It is admitted upon the pleadings that about February 18, 1916, the parties, as a result of written negotiations, entered into a written contract by which the defendant agreed to buy of the plaintiff and the plaintiff agreed to sell to the defendant 34,078 pounds of aluminum rods at 80 cents per pound, to be drawn in sizes to be specified by the purchaser. It was also admitted that a lot, consisting of 1,490 pounds of this aluminum, was delivered to and re

3. TRIAL 252(13) INTERPRETATION OF ceived by the defendant, not needing to be CONTRACT-INSTRUCTIONS.

In action for breach of contract to buy "rod aluminum," involving sole question whether "rod aluminum" mean pure aluminum, the court erred in instructing the jury to determine whether the words "to be drawn to our specifications" had any distinct well-known meaning in trade, applied to both size and composition or to size only, and whether plaintiff knew or ought to have known that the words were used in such special sense.

4. SALES 72(1)-DUTY OF SELLER.

The sale being of specific goods designated

as "rod aluminum" in written contract as completed and in the written negotiations leading up to the contract, it was the duty of seller to furnish "rod aluminum" as that term was ordinarily used in the trade.

changed in size. The action is to recover damages for the refusal by the defendant to take and pay for the remainder of the aluminum rod described in the contract. The defense is that the aluminum rod of the plaintiff was not pure aluminum, and there is a counterclaim for damages caused the defendant by the plaintiff's failure to deliver pure aluminum, and the substantial controversy was over the question whether the contract called for pure aluminum or the aluminum rods of commerce as understood in the aluminum

trade, and whether, by acceptance of part of the aluminum rods, the defendants in law accepted the whole. In the second count the plaintiff sought to recover the price of certain aluminum rods and coils of aluminum

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

620

wire, delivered to and received by the de-ered by the order 1438. That upon order by fendant as for goods sold and delivered. The the defendant the plaintiff sent to it at New plaintiff offered evidence to prove, and claimed to have proved, a telegram from the defendant to the plaintiff February 12, 1916, as follows:

"Understand you have quantity rod aluminum to offer. Wire size and quantity lowest rock bottom price delivered New Haven."

The plaintiff wired back that same date: "Spot aluminum rods 26,000 pounds inch quarter 6,000 nine-sixteenths, 1,500 half inch. 700 decimal 118. 4,400 to specify. Prices 80 cents Fitchburg."

The plaintiff confirmed this telegram by letter giving greater detail, but the receipt of this letter was in dispute. The item 4,400 pounds became the subject of a separate contract known as No. 1414 or the Philadelphia order, as to which no question arises here; that after written negotiations the defendant, on February 18, 1916, placed with the plaintiff order No. 1438 for aluminum rods as follows:

"New Haven, Connecticut, Feb. 18, 1916. "To Brown Bag Filling Machine Co., Fitchburg, Mass. Please furnish this company with the material specified below, subject to conditions printed hereon and ship via to New Haven, Conn.

"Render duplicate invoice without price. No allowance for packages or cartage.

"All goods subject to inspection-if not found in accordance with purchase will be rejected and must be replaced with goods as ordered immediately. Quantity.

Material.

26,000# 1/4" Rod Aluminum

Price.
80¢ per pound
drawn to our
specifications

700# .118
"Terms net cash f. o. b. New Haven. Delvy. 2
"United Smelting & Aluminum Company,
"By L. Lapides."

to be drawn to our specifications

weeks.

The

This order was confirmed by accompanying letter, and the order was duly acknowledged and accepted by the plaintiff. plaintiff further claimed to have proved: That under the agreement the defendant instructed the plaintiff to send to New Haven immediately the 1,490 pounds one-half inch wire rod, and to send to a factory at Massena the balance of the order, the defendant agreeing to furnish definite instructions before they should reach Massena as to the sizes to which the rods were to be drawn, and that the plaintiff did ship the 1,490 pounds to the defendant at New Haven, and that this 1,490 pounds was accepted by the defendant without any reduction in size, and without any objection of any sort, but that no part of the same was ever paid for. The plaintiff shipped to the mill at Massena the remaining aluminum rods, giving due notice to the defendant of their arrival. The 1,490 pounds of one-half inch aluminum rods were part of the entire purchase cov

Haven two sample coils of 25 pounds each
of rods sent to Massena drawn to five thirty-
seconds of an inch in diameter, which were
received by the defendant and accepted and
That the plaintiff repeat-
never paid for.
edly asked the defendant for instructions
as to the sizes to which the rods shipped
to Massena should be drawn, and that the
defendant never sent the same, and refused
to pay for the aluminum ordered, or any
part thereof. That the term "aluminum
rods" as used in the trade and as used and
understood by the parties in making this
contract means rods composed partly of pure
aluminum metal and partly of different al-
loys, and does not mean, as claimed by the
defendant, rods made of aluminum 98 to 99
per cent. pure. That the goods in fact sold
by the plaintiff were a specific lot of rods
then in the plaintiff's warehouse, and that
they were "aluminum rods" as the term is
understood in the aluminum trade and as
it was used and understood by the parties
That the
when they made the contract.
term "aluminum rod" as used in the alumi-
a rod containing any-
num trade means
where from 85 per cent. to 95 per cent. pure
aluminum, with the balance of alloys used
for hardening purposes. That the plaintiff
knew that the aluminum rods sold by it to
the defendant were an alloy and not pure
aluminum, but did not know that said rods
contained about 86% per cent. of pure alu-
minum until some time after the contract
was made. The defendant, admitting the
negotiations and the contract evidenced by
order No. 1438, as appears by the pleadings
and his statements of claims, offered evi-
dence to prove, and claimed to have proved,
that the 1,490 pounds of one-half inch alu-
minum rods were delivered to it, and by it
sold to a purchaser in Chicago, without
examination, as pure aluminum, and that

two months later it received word from its

purchaser that it was not pure aluminum, but contained only 93 per cent. of aluminum, but the defendant offered no evidence as to the amount of its adjustment with its Chicago purchaser. That on March 15, 1916, the plaintiff advised the defendant by telephone that it had received information from the Boston office of the Aluminum Company of America that alloy of the aluminum rods then at Massena was such that wire drawn from it to the size specified would not be satisfactory, this conversation being confirmed by letter. That the defendant, upon the receipt of such information, refused to accept the wire or rods, because such rod or the wire to be drawn therefrom was not of the character of rod or wire that defendant purchased. That by all the correspondence, which are exhibits in the case, it appears that the plaintiff sold the defendant

(107 A.)

pure aluminum known in the trade as "2S," to the mill to be redrawn according to speciand that defendant purchased such quality fications to be furnished by the defendant aluminum and not an alloy, and that the real The defendant then requested that two samcontract should be ascertained from the ple coils of 5/32-inch wire to be drawn and conduct of the parties and the entire cor- sent to it for examination. The plaintiff respondence. It appeared also that the rods advised the defendant that the manufacturer sold to the defendant were what is known was of opinion that the rods were too hard in the aluminum trade as 15S or 15 S. H., to furnish a satisfactory 5/32-inch wire. and not 2S, which is the symbol for pure Under the direction two coils of wire were aluminum. It also appeared from the find- drawn and sent to the defendant. The deing that before the case went to the jury fendant refused to give further specificacounsel for both sides, at the suggestion of tions or to accept the wire at the mill on the court, agreed that the plaintiff would the ground that the rod aluminum offered claim damages based on a market value of by the plaintiff was not of the character 50 cents per pound for the rods the defend- purchased by the defendant. The action is ant refused to take, and that the defendant | brought under the first count to recover under its counterclaim would claim damages damages for the refusal of the defendant based on a value of $1.122 per pound for to take the wire. The defendant claims that pure aluminum, which it claimed it had he bought pure aluminum and counteragreed to buy, and which the plaintiff had claims for damages because of plaintiff's not delivered, and the jury were informed failure to furnish such aluminum as defendof this agreement. All of the correspondence ant claims it bought. There is a second was made part of the finding, together with count to recover for the two coils of 5/32the testimony in the case. It is impractica- inch wire never returned or paid for and for ble to set out the correspondence in full. 1,490, shipped out of the lot described in the It is sufficient to say that from this it ap- order to the defendant and never returned pears that in the original inquiry and in or paid for. all letters and telegrams prior to and including the closing of the contract the material was referred to as aluminum rod or rod aluminum, and when aluminum alone is mentioned, the context shows that aluminum rod is meant. The size of wire and use to which it was to be put first appear in a letter of March 7, 1916, from defendant to plaintiff, and nothing appears in the written negotiations and contract which in any way serves to define the term "rod aluminum," or to indicate the use to which it was to be put other than the statement, "to be drawn to our specifications." Such other facts as are necessary for an understanding of the opinion are sufficiently stated in the opinion itself. The jury found for the plaintiff, and the defendant appeals.

The case primarily turns upon the meaning of the terms of the written contract, which the parties confessedly made. It appears that the trade designation of the rods the plaintiff had was 15S or 15 S. H. 15S is a grade of alloyed aluminum containing about 862 per cent. pure aluminum. H is the symbol for annealed hard. O is a symbol for annealed soft. 2S is the symbol for commercially pure aluminum; that is, 98 to 99 per cent. aluminum. Narrowly the question was whether rod of the particular alloy, 15S, in the trade, answered to the description and filled the order for "rod aluminum." The jury found in the affirmative, or, for reasons stated later, found an acceptance, and rendered a verdict for the plaintiff on both counts. A motion to set aside

Benjamin Slade and Harry L. Edlin, both the verdict or reduce it by deducting the of New Haven, for appellant.

damages assessed under the first count was

Thomas M. Steele and Eliot Watrous, both denied. The defendant appeals from the of New Haven, for appellee.

GAGER, J. (after stating the facts as above). Between March 18 and February 22, 1916, the plaintiff and the defendant, after negotiations in writing, entered into a written contract of sale under which the plaintiff sold to the defendant about 34,000 pounds of aluminum rod. The plaintiff was not a dealer in aluminum, but a manufacturer of machinery, and was left with the material on hand as a result of failure to place an anticipated munitions contract. The defendant was a regular dealer in aluminum. The order of the defendant prepared by him described the material as "rod aluminum," "to be drawn to specifications." By direction of the defendant the plaintiff sent the rod

denial of this motion, also for claimed errors in the charge and in rulings on evidence.

Upon the charge as given the jury were fully warranted in rendering a verdict for the plaintiff. It appears from the pleadings that the negotiations were entirely in writing. The series of exhibits conclude with the direction by the defendant of February 22d to ship the rod to the mill for redrawing without exception, referred to the material as "rod aluminum." It was also part of the order that the aluminum should be drawn to specifications. The pleadings and the finding show beyond question that the contract was for the purchase of specific property then in the hands or subject to the order of the plaintiff, uniformly described