The opinion of the court was delivered by
Welles, J.The only question in this case, is whether the receipts given in evidence imported a contract of any description. The defendants’ counsel claims that they imported a contract of sale, and that the justice before whom the cause was tried, committed an error in admitting parol evidence to show that the transaction was a bailment.
*320[Monroe General Term, September 5, 1850.Welles, Selden and Johnson, Justices.]
If the receipts contained any operative words which amounted to an agreement or contract of any description, then clearly, it was not competent for either party to give parol evidence to contradict the legal import of such words. Ho authorities need he referred to, in support of so plain a proposition. The receipts were made by filling up printed blanks, which had probably been prepared by the defendants to use on taking in wheat at their mill or store house, upon purchase. They contemplated a price to be inserted; for a blank was left between the words “ at” and “per bushel.” But in those used in this transaction, the blank for the price was not filled up, and the clause relating to the price seems not to have been used. I think, therefore, it was abandoned, and the whole clause should be rejected, in giving a construction to the instruments. If they are not to be treated as surplusage, or as having been left in by inadvertence, but as standing there, an effective expression, I admit they would import a sale, at a price not agreed upon, but to be fixed thereafter, either by the parties, or be regulated by the market at the time of delivery. If the receipts had contained words simply importing a sale, without any language contemplating a price, such for example as “bought of” the testator so many bushels of wheat, a sale would have been implied, and the price could, in such case, be ascertained by parol evidence. But here is evidence on the face of the receipts that the idea of a sale was not entertained by the parties, or had been abandoned. The only words claimed as evidence of a sale, relate to price, and they are so defective as to express no distinct idea whatever— and are totally inoperative. If this be so, they stand on the same footing with all other mere receipts, which are always open to explanation or even contradiction; and the parol evidence was properly admitted, to show that the transaction was a bailment and not a sale. It follows that the motion for a new trial should be denied.
Ordered accordingly.