#### Harriet A. Brady, *et al.,*Exrs., Resp’ts *v.*Patrick Cassidy, *et al.,*Appl’t.

*(Court of Appeals,*

*Filed January*18, 1887.)

1. Sale. — When title vests in vendee.

The plaintiffs sold certain property tlien upon premises occupied by tbe defendants, a bill of sale was executed and there remained nothing to be done to complete tbe purchase, but tbe preparation of an inventory and the ascertainment and payment of the price of the property sold. *Held,*that the execution of the hill of sale passed the title to the property; that after the making of the above contract the plaintiff had no right to deliver any of the property covered by the bill of sale to a person who had previous to the date of the bill of sale said he would take part of it, but between whom and the plaintiff no valid executory contract of sale was made.

2. Contract — When the court must interpret.

The rule is well settled that ■when the terms and language of a contract are ascertained, in the absence of technical phrases whose meaning is obscure, or the existence of latent ambiguities rendering the subject-matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court alone.

8. Same — Evidence — Parol to vary — Competency.

It is not enough to render parol evidence competent, to explain the meaning of a written contract, that there were circumstances known to one of the parties but unknown to the other, which might have influenced such party in making a contract, but to create an ambiguity that opens such a contract to parol explanation, it must be established by proof of circumstances known to all of the parties to the agreement and available to all in selecting the language to be employed to express their meaning.

Appeal from a judgment of tbe general term of the court of common pleas of the city and comity of New York, affirming a judgment on a verdict in favor of the plaintiff in an action for the price of goods sold and delivered. •

*John IS. Parsons*with *Otto Horwitz,*for appl’ts; *Oreorge H. Porster,*for resp’ts.

Ruger, C. J.

Previous to June, 1888, Alfred Brady had for *570many years carried on the business of making plumbers’ castings at a foundry and warerooms located in the city of New York. Having died in May of that year, bis executors determined to dispose of the business and property on hand, and, in pursuance of that intention, early in June, effected a transfer of what was called “ the plant ” to the defendants, at a price agreed upon, and also leased the premises in question to them from the' day of sale to the first day of January, thereafter, and the defendants took immediate possession thereof. On the twentieth day of June, subsequently, they also sold to the defendants their stock on hand, and executed and delivered to them a written bill of sale, reading as follows :

> “ Sold to Oassidy *&*Adler, the entire manufactured stock in good condition,, consisting of pipes, fittings, flues, etc., now on hand at foundry and storerooms, on 55th and 56th streets, 10th and 11th aves. The price on same to be eighty (SO) per cent, from list price, besides the sum of seven hundred dollars. The stock to be taken without tarring, and to be left *on*premises ; the same to be-paid for in cash. The receipt of one hundred dollars, as part payment of same,, is hereby acknowledged. I. Wietterbottom, Ex’r.”

The property sold being then upon premises occupied by the-defendants, the execution of the bill of sale passed the title, and there remained nothing to be done to complete the purchase but the preparation of an inventory, and the ascertainment and payment of the net price of the property sold. The preparation of the inventory was immediately set about by the plaintiffs, it was completed and delivered to the defendants some time about the middle of July, and it appeared therefrom that the net price of the property included therein was 111,955.38. Upon an examination of such inventory by the defendants, after its delivery to them, they discovered that it did not contain all the property purchased, and that a large amount of pipe, consisting proportionally of the most valuable part of the stock which had. ajjpeared among the goods on hand in the stock at the time of the gale to defendants, was not included in it, and, upon demanding an explanation of this circumstance, were informed by the plaintiffs that it had been delivered by them to other parties, customers of the foundry, after the day of sale, .upon orders received by them previous-to that time, and they claimed the right to make such delivery under the terms of the bill of sale. The defendants protested against this disposition of the property, and claimed damages for its removal from the foundry. The-value of the goods, over the contract price, thus removed, amounted to several thousand dollars. This action was brought to recover the amount shown to be due by the inventory; and the-defense was a counter-claim for damages arising out of the withdrawal by the plaintiffs of the pipe in question from the stock sold after the delivery of the same to the defendants.

The question discussed relates to the validity of this defense.

*571No question was made on tbe trial but that the pipe in question was on the premises on the day of sale, and was exhibited to the defendants as a part of the stock by the plaintiffs ; but it was claimed that such goods ought not to be considered as included in the terms of the bill of sale. Neither was it claimed that there was anything ambiguous in the language of the bill of sale, or any doubt or uncertainty arising over the description of the property referred to therein; but it was claimed by the plaintiffs, and held by the trial court, that proof of the circumstances surrounding the sale and the situation of the parties created an ambiguity, which authorized the plaintiffs to give parol evidence to explain and apply the language used to the subject of the sale, and limit the effect of the description. The burden of establishing such a condition of things naturally rested upon the plaintiffs, and. they attempted to meet by proof the responsibility thus cast upon them. Evidence was given by which it was attempted to be shown that they had, previous to June 20th, effected sales of pipe, fittings, etc., from the stock to third parties, which constituted the property delivered after their sale to defendants.

The evidence to establish such sales was extremely loose and unsatisfactory, and fails, as we think, to show any valid agreement for such sales. The principal witness on tills question was one Newcomb, a former clerk of the plaintiffs, who claims to have bought the bulk of the property delivered after June 20th from the plaintiffs, and to have sold and delivered it to customers of his own directly from the warehouses leased to the defendants. Some of it was delivered after June 20th, to a purchaser who had previously promised to come and look at the stock, and select some goods for purchase; but the most of it was delivered to persons who had no relations with the plaintiffs, but bought directly of Newcomb after the twentieth of June. The only authority shown in Newcomb to make such sales arose from a notice given by him to one Finch, an employé of the plaintiffs, about a week previous to June 20th, to the effect that he would take the balance remaining in the stock of certain kinds of pipe and fittings then specified by him. These goods were not charged to Newcomb at this time, neither was any part of the purchase price then paid or goods delivered, nor was any memorandum in writing made of the transaction. It does not even appear that the plaintiffs agreed to sell the goods to Newcomb. Some few articles were also shown to have been ordered by two or three different parties previous to June 20th, and were entered in the books as sold, although they were delivered thereafter; but the amount and value of such goods do not appear, and they were apparently regarded on the trial as of insignificant importance. It is quite evident from tins state of facts that even no valid executory contract of sale was made between the plaintiffs and *572Newcomb, much less that any contract was effected transferring the title of the property in question to the intending purchasers. It is also clear that the proof did not establish any valid execu-tory contract of sale of such goods to third persons, prior to June 20th, within the provisions of the statute of frauds. *Rockwell*v. Charles, 2 Hill, 499. There was no suggestion in the evidence that the defendants had knowledge of these alleged sales, or reason to suppose that any portion of the stock pointed out as that proposed to be sold, had been previously sold to other parties. Such an idea could have been entertained by them only upon the assumption that the plaintiffs were intending to perpetrate a fraud in making a sale to them.

Under these circumstances, the court, upon the trial, left it to the jury to determine what the parties meant by the use of the terms “ stock *on hand”*as used in the bill of sale ; whether it meant all of the pipes in the building, whether previously sold to other parties or not, or only those pipes that the executors still owned at the time the contract was made. The determination of the court to leave these questions to the jury was duly excepted to by the defendants, and it was further requested to pronounce upon the meaning and intent of the contract in the respect mentioned, which it refused to do, and the defendants also excepted to this refusal. The court also charged the jury that “ there was certain stock which they (the executors) owned that was in the inventory ; all that was in the inventory Cassidy & Adler got. There was certain stock that they (the executors) did not own, that is not in the inventory, and that Cassidy & Adler have not got. The defendants duly excepted to so much of this instruction as stated that there was some part of the stock that the executors did not own at the time of the sale to defendants. We think these exceptions were well taken. The theory that there was any part of the property in question of which the plaintiffs were not the owners at the time of their sale to defendants had no support, as we have seen, in the evidence.

Upon the undisputed facts of the case,' the plaintiffs had failed to show a contract which, as between themselves and the alleged purchasers, transferred the title of the property. Notwithstanding all that was said and done, the plaintiffs remained the legal owners of such property, and entitled to dispose of it as they did to the defendants on the twentieth of June. *Caulkins*v. Hellman, 47 N. Y. 449; *Burt*v. Dutcher, 34 N. Y. 493; Benj. Sales, 321, §§ 308-310. Even assuming that a valid exe-cutory contract of sale was made by the plaintiffs, prior to June 20th, to the purchasers referred to, such purchasers acquired no title to any specific property, and, upon a refusal by the vendors to fill the orders, had a right of action simply for damages. The effect of the instruction last referred to was to withdraw from the jury the consideration of all evidence relating to the *573prior sales, to other persons, and determine, as a question of law, that such transactions effected a transfer of the property referred to from the plaintiffs to such persons. They were thereby directed to consider the evidence as establishing a change of ownership of the property in dispute, and to determine the meaning of the language used in the contract in the light of that circumstance. We think the evidence was not susceptible of such a construction, and that it wholly failed to show any change of ownership of the property referred to.

We think, also, that it was the undoubted right of the defendants to have the meaning and intent of this contract determined by the court, and not by the jury. The rule is well settled that when the terms and language of a contract are ascertained, in the absence of technical phrases whose meaning is obscure, or the existence of latent ambiguities rendering the subject-matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court alone. *Dwight*v. *Germania Ins. Co.,*103 N. Y. —; 3 N. *Y. State R. 115; First Nat. Bank*v. *Dana,*79 N. Y. 108. It would be a dangerous principle to establish, where parties have reduced their contracts to writing, and defined their meaning by plain and unequivocal language, to subject their interpretation to the arbitrary and capricious judgment of persons unfamiliar with legal principles and settled rules of construction. No such ambiguity, however, existed in the language of this contract as made it necessary or proper to refer its meaning to the jury, and the evidence as to the surrounding circumstances established no case showing that any uncertainty existed as to the identity of the property intended to be sold, or as to the meaning and intent of the contract. Whatever notion might have been entertained as to the understanding of the plaintiffs in respect thereto, there was not the slightest evidence to show that the defendants had any reason to suppose that the contract had any other meaning than that expressed by the literal signification of its language. It is not enough to render parol evidence competent that there are circumstances known to one of the parties, but unknown to the other, which might have influenced such party in making a contract ; but, to create an ambiguity that opens such a contract to parol explanation, it must be established by proof of circumstances known to all of the parties to the agreement, and available to all in selecting the language to be employed to express their meaning.

This contract, however, was plain and unambiguous in its language, and was susceptible of but one construction. It stated that the subject of the sale was “the entire manufactured stock, in good condition, consisting of pipes, fittings, flues, etc., now on hand at foundry and store-rooms on Fifty-fifth and Fifty-sixth streets, Tenth and Eleventh avenues.” No technical *574words are used in the description, and no difficulty existed in applying the language used to the subject of the contract with certainty and exactitude. Notwithstanding this plain description of the property sold, the jury were permitted to find, under the instructions of the court, that it did not mean the entire stock on hand, but that it referred only to so much thereof as remained after other parties had removed such goods as they had previously notified the plaintiffs of an intention to purchase. The proof showed that the goods thus taken consisted of the most valuable part of the stock, and, if authorized, the construction put upon the language used effected a very material alteration of the terms of the contract to the damage of the defendants.

Other exceptions to the charge have heen called to our attention, which we regard as worthy of serious consideration; but, in view of the conclusions reached upon the main point in the case, we deem it unnecessary particularly to refer to or discuss them.

The judgments of the courts below should be reversed, and a new trial ordered, with costs to abide the event.

All concur.