#### Joseph Atkinson *et al.,*Resp’ts, *v.*Titus Truesdell, App’lt.

*(Court of Appeals, Second Division,*

*Filed June 2, 1891.)*

1. Evidence—Written contract varied by parol.

The meaning of phrases, etc.; used in contracts, having purely a local or technical meaning, unintelligible to persons unacquainted with the business, may be given and explained by parol evidence if the explanation is consistent with the terms of the contract.

*1602. Same.

It is admissible to show that the phrase “ to be taken by January 1st, 1883, on dock in New York ” in an order for a large quantity of glass bottles, meant, in that- .business, as the purchaser should from time to time specifically order, etc.

Appeal from a judgment of the general term of the superior •court of the city of New York, affirming a judgment entered upon *a*verdict.

*James M.*Hunt, for *app’lt; Samuel W. Weiss,*for resp’ts.

Haight, J.

Plaintiffs were copartners doing business under the name of The Hawley Glass Company, Limited, at Hawley, Pennsylvania. William F. Dorffinger was their chairman and selling agent. On the 20th of July, 1882, whilst acting for and on their behalf, he contracted with the defendant to manufacture, sell and deliver to him a large quantity of glass pickle bottles at prices specifically named, “ to be made after September 1st and to be taken by January 1, 1883 ; terms, sixty days net on dock in New York.” The defendant, from time to time, ordered bottles under the contract, to be shipped to him, up to the 16th day of November, 1882, after which he ceased to make further orders on the plaintiffs. Thereafter, Mr. Foster, a clerk in the employment of the plaintiff Dorffinger, asked the defendant when he wanted the .glass, who answered that he was not in need of any just then, but that he would want some later. The plaintiffs on the 1st of September commenced the manufacture of the bottles, and continued the same until some time in December, when they completed all called for by the contract. On the 3d day of January they forwarded to the defendant a bill for all of the bottles not previously -ordered and delivered to him, amounting to the sum of $2,036.06. This bill was not paid, and subsequently, and in the early part of March, 1883, he refused to take the goods. Upon the trial the plaintiffs showed from the testimony of persons engaged in and familiar with the glass business, that the words *“*to be taken by January 1, 1883,” as used in the contract, meant, in that business, as the purchaser should, from time to time, specifically order; that if they were not all ordered within the time specified, it was customary to forward a bill for the balance, and, if the same was paid by the purchaser, to then hold the goods in store, subject to his •order for a reasonable time thereafter. This evidence was taken under the exception of the defendant

The question thus presented has been the subject of frequent consideration by the courts, and the rule may be regarded as well settled that the meaning of characters, marks, letters, figures, words or phrases used in contracts having purely a local or technical meaning, unintelligible to persons unacquainted with the business, may be given and explained by parol evidence if the explanation is consistent with the terms of the contract Sq, also, parol evidence may be given as to the uniform, continuous and well settled usage and custom pertaining to the matters embraced in the contract, unless such usage and custom contravene a rule of law or alter or contradict the expressed or implied terms of a *161contract, free from ambiguity. *Dana*v. *Fiedler,*12 N. Y., 40; *Walls*v. *Bailey,*49 id., 464; *Collender*v. *Dinsmore,*55 id., 200; *Silberman*v. *Clark,*96 id., 522; *Newhall*v. *Appleton,*102 id., 133; 1 N. Y. State Rep., 174; S. C., 114 N. Y., 140; 22 N. Y. State Rep., 670; *Hopper*v. *Sage,*112 N. Y., 530-535 ; 21 N. Y. State Rep., 491; *Smith*v. *Clews,*114 N. Y., 190; 23 N. Y. State Rep, 166.

By referring to the contract it will be observed that the goods are to be taken by January 1, 1883, on dock in New York. The particular dock is not specified. , The goods m question, being glass, require care in shipping and delivering in order that they may not be damaged by breaking. The bottles were bulky and required much space for storage. Storage in New York being expensive, we are told that it was the custom to order the goods from the manufacturer only as they were wanted for use m the business of the purchaser. Hence the custom, to be taken when •called for. There is nothing m the evidence received that can be said to contravene a rule of law or to contradict the expressed or implied terms of the contract. Under the explanation given as to the usage of the trade, to specifically order the goods from time to time as required by the purchaser, the phrase of the contract “to be taken by January 1, 1883, on dock in New York" is rendered intelligible and harmonious with the other provisions thereof. The question presented may be upon the border, but we are inclined to the opinion that the facts bring it within the rule recognizing the evidence as competent. This evidence was not controverted upon the trial. But, as we have shown, the defendant from time to time, up to the 16th day of November, made orders upon the plaintiffs for the goods required by him, thus practically interpreting the contract the same as is contended for by the plaintiffs.

Under the construction given to the contract, proof of delivery or tender by the plaintiffs was not required. -

It is now contended that the recovery should only have been for the difference between the market value of the goods and the contract price, but we do not understand this question to be raised by any exceptions in the case. The action appears to have been tried upon tne theory that all of the goods called for by the contract had been manufactured and were held in store subject to the order of the defendant. The contract price of the goods was agreed upon, together with the interest that had accrued thereon. The court in submitting the case to the jury, instructed them that if they found for the plaintiffs, their verdict should be for $2,651.86, which was the amount agreed upon, and to this charge no exception was taken.

We have examined the other exceptions taken in the case, but find none that renders a new trial necessary.

The judgment should be affirmed, with costs.

All concur, except Brown, J,, not sitting.

1

 Affirming 25 N. Y. State Rep., 821.