On appeal from the First District Court of the City of Jersey City.
For the appellant, George W. King (William L. Rae, of counsel).
For the respondent, Edward A. Smarak.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
HEHER, J. Plaintiff sues for the price of 330 gallons of heavy duty roof coating sold to defendant under an agreement in writing which did not fix the time of the delivery of the goods nor the mode of transportation. The District Court
Judge, sitting without a jury, found that the merchandise was not delivered within a reasonable time; and accordingly he gave judgment to defendant.
The writing, styled an "order blank," was in terms an order for the goods and a promise to pay the price thereof, as therein specified, signed by defendant and accepted by plaintiff. The agreement was made upon certain "conditions" embodied in the writing -- these among others: "It is mutually agreed between buyer and seller that this order contains the entire agreement of the parties and neither customer nor seller shall be bound by any agreements not contained in the original of this Order. * * * Title of goods passes to buyer upon delivery to transportation company. Order subject to acceptance of Company and payable at seller's office in Fort Worth, Tarrant County, Texas." The order was dated August 2d, 1946; and it was accepted by plaintiff on August 5th. As stated, there was no time fixed for delivery of the goods; nor was there a provision for shipment by a particular carrier. There was a direction merely to "ship to Secaucus." On August 16th plaintiff delivered the ordered commodity to the Erie Railroad Company at Cleveland, Ohio, for shipment to defendant at Secaucus, New Jersey. On September 5th following the Railroad Company notified defendant of the arrival of the merchandise at its terminal in Weehawken, but defendant had advised plaintiff's agent on August 23d of its "cancellation of the order," and the tender of delivery was refused.
The judge concluded that the agreement "was not complete on its face, in that it did not indicate the time and means of delivery;" and he overruled objections to evidence offered by defendant of a "conversation" between its president and plaintiff's agent in the course of the negotiations which eventuated in the contract "as to how and when the said merchandise was to be delivered," which he deemed "a material part of their agreement, * * * in order to determine, in accordance with the common law and the Uniform Sales Act, whether the merchandise was delivered within a reasonable time;" and he found that the commodity "was not delivered within a reasonable time or in the manner agreed upon."
The evidence thus adduced from defendant's president, Buchmuller, as revealed by the state of the case settled by the judge, was that in the conversation which preceded the giving of the order he informed plaintiff's representative, Nagy, that "the trucking industry contemplated a strike on September 1st" following, and if it occurred, defendant's "terminal would be loaded with freight which might be damaged if the roof was not in good condition;" that they examined the roof and found "many leaks;" that Nagy said the needed roof coating would be delivered from plaintiff's Ohio warehouse in ten days, "so that the roof could be repaired before September 1st;" that Buchmuller then suggested shipment by motor truck rather than by rail, and offered to pay the difference in the carriage charges, and Nagy said that "such arrangements would be satisfactory to the plaintiff;" that Buchmuller thereupon telephoned, in Nagy's presence, to a motor trucking concern in Carlstadt, New Jersey, and learned that shipment by that facility "normally would take three days;" that Buchmuller then "instructed" Nagy to ship the merchandise by this truckman, the difference in the carriage charges to be paid by defendant; and that Nagy called on Buchmuller on August 8th and advised him that plaintiff had "confirmed the order" and the commodity "was being shipped from Ohio that day via" the Carlstadt trucking company, with direction "to rush the shipment" to its Carlstadt terminal, for delivery to defendant on August 12th. All this evidence stood uncontradicted; Nagy did not go upon the witness stand. Although the particular language is ambiguous, the state of the case suggests that Buchmuller was aware at the time of the delivery of the goods to the rail carrier for shipment to defendant.
While the judge deemed the writing to be but a partial integration, he received the extrinsic evidence of the asserted parol agreement fixing "the time and means of delivery" on the issue of whether "the merchandise was delivered ...