William Feinstein Bros., Inc. v. LZ Hotte Granite Co.

Holden, J.

This controversy has developed from a contract for the purchase and sale of two hundred monuments. The plaintiff buyer is a retail dealer in granite markers. The defendant seller is a manufacturer of these commodities. At the close of all the evidence a verdict on both issues of liability and damages was directed for the plaintiff. This appeal by the defendant challenges this action by the trial court on the ground that the evidence required these questions be submitted to the jury.

On November 1, 1955 the defendant’s salesman obtained an order for the purchase of five different types of markers. The order was written on the defendant’s form by the salesman. Each type is set up in the order by separate designation, with the unit and total price indicated for each category. At the bottom of the second and final page, the total order is recapitulated by adding the price for each type of marker ordered, with the aggregate sum of $6,395.00.

After the printed word Terms there is written “2°/o 15 30 da net.” After the printed word When appears the writing “Start shipping Feb 15th to June 15th mixed quantities.”

The defendant’s home office acknowledged receipt of the order by letter to the plaintiff. The letter advises the buyer that shipments will start on February 15th and continue “until all are shipped as per instructions to June 15/56. The TOTAL Amount of the order is $6,395.00 Less 2°/o Discount in 15 Days.”

On February 16, 1956 the defendant made the first shipment of mixed quantities. Six other shipments followed during the period to April 26, 1956 which accomplished delivery of one hundred twenty-five pieces of the two hundred ordered. An invoice accompanied each delivery specifying the type, and total unit price of each item in the shipment. In response to requests by the defendant, the plaintiff made several payments during this period to the defendant but the amounts of the payments did not correspond to the billings indicated on the invoices. On April 26, the date of the last shipment, the unpaid balance of the amounts charged to the plaintiff according to the invoices was $2,878. This amount was finally satisfied by several payments over the ensuing five months. In the final payment on September 20, 1956 the plaintiff deducted a two percent discount on the aggregate of the shipments.

It appears from the record that the parties had done business over a period of fifteen years. During that time the plaintiff had paid for the various shipments within fifteen days. The order in question was the largest ever received during this time. The parties continued their dealings for some time after deliveries under the present order had been terminated.

Later, this action was brought to recover damages claimed by reason of the defendant’s failure to deliver the remaining seventy-five markers specified in the order of November 1, 1955. The defendant pleaded the prior breach of the buyer’s obligation to make payments for the shipments as the goods were delivered. Thus the question developed by the pleadings and the evidence was directed to the issue of whether the contract between the parties required payment after each delivery. The plaintiff’s motion for a directed verdict was based on the proposition that according to the terms of the contract of sale there was no obligation on the buyer to pay for any of the shipments until full delivery of the two hundred markers had been accomplished.

In sustaining the plaintiff’s motion the trial court held the contract could not be construed as providing for instalment deliveries or instalment payments. Consequently it ruled as a matter of law that the contract was an entire one, the plaintiff was not in default and the defendant was not excused from full performance by reason of the plaintiff’s failure to pay for each shipment on delivery. In this connection the presiding judge went on to comment that the contract was written by the defendant’s agent and if it was the intention to provide for instalment payments and deliveries it would have been easy to have included such a provision in the order.

This observation, by the court below, overlooked the provision of the Uniform Sales Act which prescribes: Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for the possession of the goods. 9 V.S.A. §1542.

When a contract of sale is silent as to the time for payment, the buyer’s obligation to pay arrives when he receives possession of his purchase. Kitson v. Holden, Admr., 74 Vt. 104, 107, 52 Atl. 271; Hambleton v. U. Aja Granite Co., 95 Vt. 295, 297, 115 Atl. 102; Miles v. Vermont Fruit Co., 98 Vt. 1, 11, 124 Atl. 559.

The contract at hand unequivocally affords the seller the privilege of making deliveries of the granite in instalments, for it directs that shipments are to start on February fifteenth and will continue to the following June. Whether the privilege to make delivery by instalments created a corresponding obligation on the buyer to pay for each instalment upon delivery was not stipulated in the writings between the parties. When the terms of the contract do not state whether any payment shall be made before full performance, the governing principle is the manifested intention of the parties in view of the nature of their agreement, their conduct in reference to the undertaking and the usages of the business. 2 Williston, Sales, §466aa (Rev. Ed.); Barlow Manufacturing Co. v. Stone, 200 Mass. 158, 86 N.E. 306, 307; Producers’ Coal Co. v. Hillman, 243 Pa. 313, 90 Atl. 144, 145.

It is of course the general rule that if the essential terms of a contract are expressly stated in clear and definite terms, the interpretation of the writing is for the court. This rule was involved in Brandon Manufacturing Company v. Morse, 48 Vt. 322, 326, in construing a contract for the sale and delivery of one hundred cords of wood “before March 15, 1872, — for the sum, of four dollars and seventy-five cents per cord.” The question on appeal was the correctness of the trial court’s ruling in excluding parol evidence offered by the seller to explain the meaning of the language of the contract. In sustaining the verdict for the buyer, the Court held that there was no ambiguity about the language used which required explanation by parol evidence and that the law fixed the time for payment after complete delivery had been made.

This case stands differently for several reasons. The order in the Brandon case did not, in so many words, provide for instalment deliveries over an extended period of time. The case was decided long before the enactment of the Uniform Sales Act. And from the buyer’s standpoint at least, the trial was conducted on the theory that no parol evidence was needed to explain the terms of the undertaking.

In the present trial both parties adopted the theory that extrinsic evidence was necessary to explain the meaning of the term “2°¡o 15 30 da net,” for both parties introduced evidence bearing on this point. On this, the evidence was in sharp conflict.

Where the meaning of a writing is uncertain and parol evidence is introduced in aid of its interpretation, the question of its meaning should be left to the jury. White v. Lumiere North American Co., Ltd., 79 Vt. 206, 222, 64 Atl. 1121, 6 L.R.A., N.S. 807; Taplin & Rowell v. Marcy, 81 Vt. 428, 452, 71 Atl. 72; 2 Williston, Contracts, §616 (Rev. Ed.) p. 1772. Thus the function of the jury is invoked wherever, in view of the surrounding circumstances and usages offered in evidence, the meaning of the writing gives rise to doubt as to the true intention of the parties. 2 Williston, supra, at p. 1774.

Since the time for payment was not specifically expressed, and the conduct of the parties and their business dealings admitted of conflicting inferences, an issue of fact for the jury was presented. It was error for the trial court to deal with it as a matter of law.

An order, similarly worded, covering multiple shipments with separate invoices, was the source of the controversy in Auer & Twitchell v. Robertson Paper Co., 94 Vt. 473, 111 Atl. 570. In that case, as here, the controlling consideration was the understanding and intention of the parties as to whether each shipment was to be paid for separately, prior to complete delivery of the total order. The case was tried by the court and the issue was settled in the findings as a question of fact. Auer & Twitchell v. Robertson Paper Co., supra, at 476.

Until it is established that the buyer’s obligation of delivery and the seller’s obligation of payment are to be performed by instalments, it is impossible to discover whether the breach claimed on either side is material so as to justify the injured party in refusing to proceed further with the undertaking as provided in 9 V.S.A. §1545. See Auer & Twitchell v. Robertson Paper Co., supra, 94 Vt. at 479; Helgar v. Warner’s Features, 222 N. Y. 449, 119 N.E. 113, 114. Each of these considerations was essential to the correct adjudication of the rights of the parties to this action. Since the judgment that was entered did not settle these issues, it cannot stand.

The defendant asks us to enter a verdict and judgment in its favor in this Court. This we cannot do. At the close of the evidence, both parties moved for directed verdicts. In asserting its motion, the plaintiff did not waive its right to go to the jury if the ruling below had gone against it. The mere fact that both parties request verdicts in their favor does not amount to mutual consent that the case should be entirely withdrawn from the jury. Since it does not affirmatively appear from the record that the litigants agreed that all issues should be decided by the court alone, the plaintiff has an equivalent right to have the issues of fact resolved by the jury’s verdict. Bacon, Receiver v. Barber, 110 Vt. 280, 289, 6 A.2d 9, 123 A.L.R. 253.

Judgment reversed and catise remanded.