majority">Collins, J.

The real controversy between the parties to this action is whether the defendants’ written order for boiler-flue ferrules, which plaintiffs undertook to fill, was, and should have been so understood, for ferrules of the dimensions specified, outside diameter measurements, the gauge- thickness being about 1-18 of an inch, or for ferrules which would fit upon and over boiler flues of these diameter measurements, outside. The defendants contend that their order for “600 2-inch boiler-flue ferrules; 1,500 2-|-inch; and 1,200 3-inch. This is outside diameter,” — was plain and unambiguous, and that the specified dimensions clearly referred to the flues, not to the ferrules; while plaintiffs insist with equal positiveness and confidence that the order plainly stated what the diameters of the ferrules, outside measurements, should be, not the diameters of the flues for which they were intended. And counsel upon either .side have demonstrated the correctness of their respective positions — to their own satisfaction.

The court below conducted the trial upon the theory that the language used in the order was of doubtful construction, and, plaintiffs objecting, allowed defendants to show by competent witnesses which interpretation would have been put upon it, and how it would have been construed, generally, by persons engaged in the trade. *299Testimony upon the same point was produced by plaintiffs, and, it seems almost needless to remark, the witnesses differed as to how the language of the order should have been understood and con-st-pned by those who dealt in such articles. The court also allowed defendants to show, plaintiffs objecting, that all boiler flues are made in standard sizes, and that the ferrules furnished in accordance with plaintiffs’ construction would not fit upon any of these standard sizes. In fact, plaintiffs seem to have admitted this, for in all of their communications with defendants since the latter advised them of the alleged mistake they have spoken of the ferrules as worthless, except as scrap metal. After receiving the testimony above mentioned, and by which a very grave doubt had been raised as to how the order should have been construed, if none had before existed, the court, upon its motion, directed a verdict for plaintiffs for the contract price of the goods, and such a verdict was returned. Later the court granted the defendants’ motion for a new trial, on the ground that it ought not to have taken the case from the jury, and the present appeal is from the order granting a new trial.

We do not agree with the claim made by plaintiffs’ counsel that the language used in the order was so plain and clear as to warrant but one construction of it, and that the one which his clients placed upon it. If, then, there was a doubt whether on the face of the order it should have been interpreted by them, as it evidently was, when filled, they have no cause to complain of the rulings of the court respecting the admissibility of testimony tending to explain the language, or of the order granting a new trial. The subject-matter of the contract was boiler-flue ferrules, not ferrules. It was shown that boiler-flue ferrules were articles in common use, and that plaintiffs had been engaged in selling them to the trade for many years. It was also shown that boiler flues were manufactured in standard sizes only, such sizes being fixed in inches and fractions thereof, outside measurement. Ho flues are made between lf-inch and 2-inch outside diameter, and knowledge of this fact, which stands undisputed, must be attributed to plaintiffs; so that a ferrule 1-18 of an inch gauge, with an outside diameter of 2 inches, could not be used upon a lf-inch or a 2-inch flue, being too large for the one, and too small for the other. The same objections were made to the 2-J-inch and 3-inch ferrules furnished by *300plaintiffs, the fact being that no boiler flues were manufactured on which any of these ferrules would fit.

With this condition of affairs, of long standing when defendants gave their order for boiler-flue ferrules, — an article of common use, —evidence of custom and usage, so called, and the understanding of those engaged in this particular line of trade, was admissible to show what was intended, and what should have been understood, by plaintiffs.' It is a rule of interpretation that the intention of the parties to a contract is to be ascertained by applying its terms to the subject-matter. The subject or object to which it is to be applied may be ascertained by extrinsic evidence, if it can be done without a departure from the rational meaning of the words actually used. If the meaning is involved in uncertainty, the intention may be ascertained by such testimony, and, when so ascertained, will be taken as the meaning of the parties, if such meaning can be distinctly derived from a fair and rational interpretation of the language employed. It was well said in Paine v. Smith, 33 Minn. 495, (24 N. W. Rep. 305,) that in a commercial community many words or phrases acquire a technical meaning, well understood by those in a particular trade or business. Certain business customs and usages also become well established and understood by business men, who, in making their contracts, assume them for granted, and contract with reference to them, without taking time to incorporate them into the express terms of their bargains. On this branch of the case the court should have submitted it to the jury.

Under the pleadings and the testimony, the defendants were not entitled to recover upon their counterclaim for damages. As late as August 21, 1890, defendants urged shipment of the goods, and, on August 29th, expressed their satisfaction at being advised of the forwarding of a part on that day, asking that the balance be sent quickly. They could not consistently urge shipment of the goods, and retain their right to demand damages for the previously existing delay in filling their order. See Fowlds v. Evans, 52 Minn. 551, (54 N. W. Rep. 743.)

Order affirmed.

Yanderburgh, J., absent, took no part.

(Opinion published 55 N. W. Rep. 131.)

Application for reargument denied June 1, 1893.

Citation profile

Relationships

How this case has been treated — in progress