Sanford v. . Brown Brothers Co.

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It is alleged by counsel for appellant that the language used in the contract, "Any stock which does not prove to be true to name as labeled is to be replaced free, or purchase price refunded," should be construed as a limited liability on the part of the defendant for any damage resulting under the contract. In support of the reasonableness of such construction stress was laid upon the absence of fraud or misrepresentation in the sale; that in view of the price the trees, which were two years old, substantially all budded, were sold, 8½ cents each, out of which defendant paid the expense of boxing, freight and agent's commissions, no nursery would or could have sold trees at such a price and assume a risk greater than that specified in the contract, especially when such dealer had no more means of knowing that the variety of peaches were as labeled than that possessed by the purchaser.

The form of contract was furnished by the defendant and under well-established principles any doubt as to the meaning of the terms employed must be resolved in favor of the plaintiff. The defendant was engaged in the nursery business, for how long a time does not appear, except by implication. Mr. Brown, the president of defendant, testified that he had been in the nursery business twenty-five or twenty-six years, and we may assume that the defendant corporation succeeded in whole or in part to his business. The plaintiff was a farmer without previous experience in the culture of peaches; he could not discover for a period of three or four years the variety of peaches, if any, the trees would bear. When he purchased the trees he was justified in relying upon the superior knowledge of the defendant as to the quality of the trees to be selected and furnished by defendant. The defendant was chargeable with notice of the purpose for which the trees were to be used, and also had knowledge that the trees would not attain to the bearing point for a period of three or four years, during which time plaintiff would be required to devote his time together with labor and expense to the cultivation of the orchard. It would be unreasonable to hold, under the terms of this contract, that at the end of three years, should the trees prove valueless, the only obligation was to furnish a supply of new trees or refund the purchase price. In such a case, while defendant would sustain a loss to the extent of the original cost of the trees, the loss to plaintiff in the use of land, expenses of cultivation, etc., might prove very substantial.

"It is a well-established canon of interpretation that in seeking for the intent of parties the fact that the construction contended for would make the contract unreasonable and place one of the parties at the mercy of the other may be properly taken into consideration." (Schoellkopf v. Coatsworth, 166 N.Y. 77 -84.) Under the terms of the contract the plaintiff was entitled to have trees of the several species named by him furnished by defendant. The defendant upon acceptance of the order undertook to deliver the trees specified by plaintiff and paid for by him. If defendant assumed to fill the order by trees in part purchased from other dealers the risk was assumed by defendant and not by the plaintiff and a failure on the part of defendant to deliver the goods ordered and of the quality prescribed, or the delivery of trees other than the trees it agreed to deliver, rendered it liable for a breach of contract. (Allan v. Lake, 18 A. E. [N.S.] 561, cited in Hawkins v.Pemberton, 51 N.Y. 198, 205; Chanter v. Hopkins, 4 M. W. Ex. 404; Carleton v. Lombard, Ayres Co., 149 N.Y. 137,147.)

The language of the contract, when read in the light of the circumstances and facts surrounding the transaction and the position of the parties thereto, does not justify the construction contended for by the appellant.

The defendant, if it desired to limit liability on its part by reason of the failure to furnish and deliver to plaintiff the trees purchased by him as specified, could have provided in the contract for liquidated damages, or by language unmistakable in terms and susceptible of comprehension by the purchaser, it might relieve itself from any liability under a contract made by it with another party. The defendant failed either to limit or avoid liability by the terms employed in the agreement of purchase and sale. The language used by it is susceptible as an inducement to a sale of its goods or as an additional promise upon its part, but cannot be construed as a limitation of liability for a breach of contract.

The judgment should be affirmed, with costs.

CULLEN, Ch. J., GRAY, WERNER and WILLARD BARTLETT, JJ., concur; CHASE and COLLIN, JJ., not voting.

Judgment affirmed.