#### JOHN GRAY and another, Respondents, *v.*THOMAS GANNON, Appellant.

*Ambiguity as to order for shipment—explained by course adopted, under prior shipment under the same*contract— *Substantial performance*— *when sufficient.*

For the purpose oí explaining an ambiguity in an order relating to the shipment of an engine, evidence may he given of the course adopted and approved of in the prior shipment of another engine under the same contract.

The performance of an agreement must be such as is required by the true spirit and meaning of the contract, and the intention of the parties. A substantial performance is all that is required, unless it be expressly stipulated otherwise, when the party receiving it will derive from it all the benefits that would have resulted from a literal performance, and in practically the same way.

Appeal from a judgment recovered on a trial at the circuit.

*S. C.*Conable, for the appellant.

*Wm. F. Shepard,*for the respondents.

Daniels, J.:

The plaintiffs recovered a verdict for $500 and interest, upon an order drawn in their favor by Brooks, Bacon & Co. upon the defendant, and accepted in writing by him. By the terms of the order, the defendant was requested by its drawers to accept from the plaintiffs the twenty horse power hoisting engine made for *58Messrs. A. Thomson & Co., Hew Orleans, and pay the amount of the contract, $735; $500 on delivery on board in Hew York, and the balance, $235, as soon as word was received from Thomson *&*Co., and charge to account of the drawers.

The order was indefinite and uncertain in its description of the manner in which the delivery of the engine on board was to be made to constitute a compliance with its terms; and to ascertain the intention of the parties to it on that subject, evidence was offered and received to show their understanding, as that was exhibited in what had passed between them, and the course that was adopted and approved of in the shipment of a preceding engine manufactured for Thomson & Co. under the same contract. From that, it appeared that the other engine was shipped to Thomson *&*Co. at Hew Orleans, by the plaintiffs, in the defendant’s name as the shipper, or consignor, and that the engine mentioned in the order was designed to be sent in the same way. That was the delivery on board mentioned in, and imperfectly expressed in, the order accepted by the defendant. And the evidence was proper for that purpose. * The exceptions taken to the rulings admitting it, were therefore properly overruled.

After the order was drawn and accepted, the plaintiffs delivered the engine on board the steamship Cortes, at Hew York, consigned to Thomson & Co. at Hew Orleans. The bill of lading was in the form ordinarily used, and similar in all respects to the one under which the first engin e "was sent, except that it named the plaintiffs instead of the defendant as the shippers, or consignors.' Upon that and the order, they applied to the defendant, for payment of the $500.- He refused to pay; and the evidence tended to show that he placed such refusal on the failure to name him as consignor of the engine in the bill of lading. Further evidence was given, tending to show that the bill of lading was offered and tendered to the defendant both before and after the steamer sailed, and that on its surrender by the defendant, no difficulty would have been encountered in procuring another in its place, containing the defendant’s name as the shipper.

By the omission to have the defendant named in the bill of lading as the shipper of "the engine, the plaintiffs were involved in *59what was a literal failure to perforin in the manner agreed upon between the parties. And if they were bound to show such a compliance before they could recover the first payment mentioned in the order, then the judgment rendered in their favor cannot be sustained. But a literal performance of the condition on which the right to payment is rendered dependent, is not always required to entitle the claimant to recover. For that purpose, a substantial performance has, in some eases, been deemed to be sufficient. Parties may, by the terms of their agreement, render the right to payment dependent on the literal performance of an act on the part of the person to receive it. And where that appears to be the case, it can be no otherwise recovered, where no dispensation of the condition may exist, than by showing such a performance as the agreement in terms requires. But this is not a case of that description, for it was not specifically agreed, at any time, that the plaintiffs should only be paid on the production of a bill of lading showing a shipment of the engine by the defendant. What in effect was agreed upon, was", that the engine should be delivered on board a steamer at New York, for Thomson *&*Co., at New Orleans, as the preceding engine had been sent. „ That had been manufactured for them, and was to be delivered so that it would be carried and transported to them at their place of residence. And before the manufacturers could require payment under the terms of the order, it was necessary that a delivery should be shown that would be attended with that result. The defendant was, in fact, the agent of Thomson & Co., and whatever he did in reference to the property, was for the purpose of promoting that object. He had no interest in it different from them; but his control over it was restricted to that disposition of it. And, for that purpose, a shipment in the name of the plaintiffs, as consignors, was just as effectual as one made in the name of the defendant. The property was as sure to be safely transported under one name as it could have been under the other. It was objected that it could not be insured as well; but that is very clearly a mistake; the title and interest of the consignees would be the same in either case. And, for that reason, it could be insured the same with the plaintiffs’ name as consignors, as though the bill of lading had acknowledged its receipt from the defendant. *60Not the slightest difficulty could be occasioned in' that respect, by the circumstance that the bill of lading named the plaintiffs instead of the defendant as the shippers. The delivery was made substantially in the manner contemplated by the agreement and the terms of the order. For it placed the engine on its transit to the purchasers, and no more than that would have been done if .it had been sent in the name of the defendant as shipper. It was a substantial compliance with an agreement containing no explicit stipulation that payment should only be made on performance of a different description. And that was sufficient to perform the obligation of the plaintiffs, as long as it was made to appear by the evidence, and found by the jury, that the bill of lading actually taken by the plaintiffs was offered and tendered to the defendant when payment was applied for on the order. The rule upon this point has been stated to be, that the performance must be such as is required by the true spirit and meaning of the contract, and the intention of the parties, as expressed therein. A mere literally accurate performance may 'wholly fail to satisfy the true purpose of the contract, and such a performance is not enough,' if the true purpose of the contract can be gathered from it, according to the established rules of construction.* The performance which was shown and offered by the plaintiffs was substantially all that could be required from them, and it secured to the consignees and the defendant all the benefits and advantages which would have been derived from that which he insisted upon, and practically in the same way. The exceptions which were presented to the charge and the refusal to charge, requiring a literal performance to be shown on the part of the plaintiffs before they should be allowed to recover the first installment mentioned in the order, for these reasons are incapable of being maintained.

The defendant alleged and proposed to prove by way of defense, that the engine was defectively constructed, and that it would require the expenditure of a considerable sum of money to put it in the condition required by the contract made for it. This defense was excluded by the court, and the defendant excepted. The engine was in fact constructed under a contract, but it was not *61made with the plaintiffs. It was between Thomson *&*Co. and Brooks, Bacon & Co. The plaintiffs were not parties to it, nor to any other contract with Thomson & Co., or with the defendant, beyond that for the delivery of the engine as it had been manufactured. If any claim for compensation existed, under the contract made, for the imperfect construction of the engine, it was against Brboks, Bacon & Co., who alone had agreed that it should be built in the manner claimed by Thomson *&*Co. The plaintiffs constructed it for Brooks, Bacon *&*Co., and under their employment; and when it was completed, and before the order on the defendant was drawn and accepted, Mr. Bacon of that firm examined and accepted it, and notified the defendant that he had done so, and had found it complete and ready for shipment, as ordered by Mr. Thomson. That showed a' full performance of the plaintiffs’ obligations, as the manufacturers, to the satisfaction of the persons who had employed them ; and for that they were then entitled to payment from Brooks, Bacon *&*Co. There was no ground on which that could be successfully resisted, simply because the contract between Brooks, Bacon *&*Co. and Thomson *&*Co. had not been performed according to its terms. If that were true, it constituted a good claim for remuneration against Brooks, Bacon & Co., but not against the plaintiffs. . *

It was to pay the plaintiffs what had become due to them for constructing the engine, that the order in suit was drawn and accepted. And by that the defendant agreed to pay them the first installment of $500, when the engine, as it then was made, should be delivered on board at the city of New York. He did not qualify his obligation by requiring, as a condition on which the right to payment should depend, that the engine should be found to be manufactured as the contract between Thomson & Co. and Brooks, Bacon *&*Co. required it to be. But his undertaking was'absolute to pay on its delivery on board a steamer for Thomson *&*Co. As the indefinite and incomplete terms of the order were rendered intelligible and effectual by the other evidence in the case, and as that was substantially performed by the plaintiffs, they became entitled to the payment the defendant had agreed in that event to make to them. The case presented a simple question of fact, and. that was fairly submitted to the jury. There was no error in any *62of the rulings made by the court, and the judgment should, therefore, be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.

*

 Grierson v. Mason, 3 N. Y. Sup. Ct. R., 185.

*

2 Parsons on Contracts (5th ed.), 656; 1 Story on Contracts (4th ed.), 36, 37, § 32; Sinclair v. Tallmadge, 35 Barb., 602.