#### H. C. Beals & Co. *v.*R. Terry & Co.

A usage of trade, to the effect that on a contract to deliver flour of a particular mark or brand, a delivery of flour of equal or better quality, of a different mark or brand, will satisfy the contract; was held to be inadmissible.

On the default of the vendor in a contract to sell and deliver goods at a specified time, for a price then payable, the measure of damages in an action by the vendee, is the difference between the contract price, and the market value at that time, with interest on such difference.

The same rule applies against a guarantor of the vendor’s fulfilment of the contract.

Sept. 13 ;

Sept. 30, 1848.

Assumpsit, on the guaranty of a contract, with the money counts, tried before Oakley, Ch. J., May 12th, 1848. The contract was in writing, and with the guaranty, were in these words:

“ For value received, we have this day sold, and agree to deliver to Messrs. Roderick Terry & Co., in the city of New York, two thousand barrels superfine flour, ‘City Mills, Rochester,’ at six dollars per barrel, payable cash on delivery of each parcel; to be delivered at our option, in all the month of Jupe next, in parcels of not less than 200 barrels each. Any variation from superfine, to be settled at the usual rates of difference.

“Clark & Coleman.

*“New York,*March 26th, 1847.”

[Endorsed,]

“ *Messrs. Clark fy Coleman,*will please deliver to H. C. Beals <fc Co. the within flour, as per contract—they paying you for same as received..

“ Roderick Terry & Co.”

*128“ For a valuable consideration, we do hereby guarantee the fulfilment of the contract, as within specified.

“ Roderick Terry & Co.”

*“New*York, May 25th, 1847.”

On the 30th June, 1847, the plaintiffs presented the contract to Clark & Coleman, tendered to them $12,010, for the price of the flour and half inspection, and demanded a delivery of the flour specified in the contract. They replied that they had not the flour, and could not deliver it. They offered to deliver flour, other than “ Rochester City Mills,” on the contract. The plaintiffs immediately advised the defendants of Clark & Coleman’s default. The market value of “ Rochester City Mills” flour at the end of June, 1847, was variously estimated by .witnesses, at from $8 75 to $7 25 per barrel. It appeared that there was none of that brand of flour in the market, after June 21, 1847; that there was a considerable decline in the price of flour generally, between that date and June 30th, so that flour equally as good as “ Rochester City Mills,” was selling on the 30th, at $7 25 per barrel. Particular brands of flour, which are highly esteemed, frequently maintain their price in the face of a general fall in the market, to the extent of a dollar per barrel: especially, when the supply of such brand is small.

The plaintiffs proved that they paid the defendants $4500, for an assignment of Clark & Coleman’s contract.

The defendants offered to prove, that there was no other kind of Rochester City Mills flour, than *superfine*Rochester City Mills flour ; which was objected to and' excluded. They also offered to prove, that on the 30th of June, 1847, Clark & Coleman offered to deliver to the plaintiffs, on the contract, flour of a quality equal to or better than the “ Rochester City Mills” flour ; of - the brands, “ Hopeton,” “ Allen’s Creek,” “ Le Roy Mills Extra,” and “ M. Holmes, Rochesterwhich evidence was objected to by the plaintiffs, and excluded by the judge.

The defendants also offered to prove, that by the usage of the trade in flour in the city of New York, it was customary on contracts for the delivery of particular brands of flour at a future day, to deliver other brands of flour of equal quality in *129fulfilment of such contracts. This evidence was objected to by the plaintiffs, and excluded by the judge.

The judge charged the jury, that the rule of damages in the case, was the difference between the market value of the flour in question on the 30th June, and the contract price, with interest. The jury found a verdict for the plaintiffs, for $4246 15 damages; and the defendants move for a new trial.

*E.*Terry, and *D. Lord,*for the defendants.

*D. D. Field,*for the plaintiffs.

By the Court. Vanderpoel, J.

The principal questions are, whether the judge submitted the proper rule of damages to the jury, and whether he properly rejected the evidence offered by the defendant, that there was a usage of trade in flour contracts for the delivery of flour at a future day, to deliver other brands of flour of equal quality.

The rule of damages, as laid down by the Chief Justice at the trial was, the difference between the market value of the flour on the thirtieth of June, and the contract price, with interest on such difference. This is the true rule. *(Clark*v. *Pinney, 7*Cowen, 681; *Dey*v. *Dox,*9 Wend. 129; *Davis*v. *Shields,*24 Wend. 322.) In all those cases, it was held, that when there is a default in the vendor in a "contract to sell and deliver chattels, the measure of damages in an action by the vendee is, the difference between the contract price and the market value of the chattels when they should have been delivered by the contract. The reason of the rule, says Nelson, J. in *Dey*v. *Dox,*is conclusive, to wit, that such damages, added to the contract price which the vendee has not parted with, will enable him to buy the article in the market. Why should a different rule be applied in this case. It is said that this was not a contract for a specific marked number of barrels of flour; that the spirit of the contract would have been satisfied by the delivery of other flour of equal quality; and that the judge improperly rejected the evidence offered to show that at the time of the maturity of the contract, Clark and Coleman of*130fered to deliver other brands of flour of equal or better quality. This evidence was not admissible, unless the usage of trade is potent and authoritative enough, in a case like this, to justify the delivery of other brands than those contracted for. The rule which forbids the admission of parol evidence to contradict or vary a written contract, is not infringed by any evidence of usage respecting the subject to which the contract relates. (1 Greenleaf’s Ev. § 292.) Proof of usage is admitted, either to interpret the meaning of the language of the contract, or to ascertain the nature and extent of the contract, in the absence of express stipulations, and where the meaning is equivocal and obscure. (Ibid.; 2 Sumn. R. 569; *Cutter*v. Powell, 6 T. R. 320 ; *Vallance*v. Dewar, 1 Camp. 503; *Noble*v. *Kennaway,*2 Doug. 510.) There is nothing equivocal in this contract; nothing to require the aid of any usage, or mercantile understanding, to ascertain the meaning of any of its terms or phrases. We took occasion, in the case of *Hone*v. *The Mutual Safety Insurance Co.,*(1 Sandf. 137;) to express our repugnance to the practice of setting up particular usages or customs, to control the liabilities of parties under the common law, and our entire concurrence in the doctrine of Justice Story, so clearly laid down and so forcibly expounded by him in the case of the *Schooner Reeside,*2 Sumn. 567. We cannot recognize a usage which will authorize a party to deliver one article in fulfilment of a contract, positively to deliver another ; which will justify him in delivering the fabrics of one mill or manufactory, when he has expressly contracted to deliver those of another. The injustice of such a rule is rendered manifest by the evidence in this case. It is proved, that when the supply of flour is small, a particular brand will often maintain its price, in the face of a general fall of one dollar per barrel. Suffice it to say, that one of the contracting parties wants a partictilar brand, and the other agrees to deliver it to him ; and it is not in law or sound reason a good answer for the vendor to say, “ I offered you not the article I contracted to deliver, but one just as good.” The vendee may, at the time of the contract, have the most conclusive reasons for contracting for that particular brand, and wé cannot on any sound principle hold the contract satisfied by *131the tender of another, which the witnesses may deem equally good.

Nor, do we deem the point well taken, that the judge improperly rejected the evidence offered, that there was no other kind of Rochester City Mills flour, than superfine Rochester City Mills flour. We cannot conceive, how it could, legitimately, have influenced or varied the natural import or meaning of the contract. The verdict is larger than we would have found, had we been in the place of the jury; but we have not been able to conclude that the damages are so excessive as to warrant our interference on that ground.

The motion for a new trial is, therefore, denied.