Bagley & Sewell Co. v. Saranac River Pulp & Paper Co.

Landon, J.,

(concurring.) The acceptance of this written proposition being oral, the declarations of the defendant accompanying that acceptance, and defining such of the terms of the proposal as would be unintelligible without definition, are part of the acceptance, and thus part of the contract. The written proposition, with guaranty “to take care of all the pulp produced by four Scott grinders,” requires evidence of the productive capacity of such grinders, in order to make the contract intelligible. The evidence shows that such grinders are of different capacities. If the parties fixed a capacity as the basis of their agreement, proof of that fact affords us the measure of the capacity referred to in the written proposal. The declarations of the defendant during the negotiations stating that capacity, upon which the plaintiff relied in making the proposal, are the best evidence of it as between the parties. Such declarations do not vary the writing; they interpret it. In Corse v. Peck, 102 N. Y. 513, 7 N. E. Rep. 810, the oral testimony did not interpret the writing; it varied it from a contract “to run steadily” to a contract *660to “ run often enough to deliver 500,000 brick a month. ” In Engelhorn v. Reitlinger, 122 N. Y. 76, 25 N. E. Rep. 297, the oral testimony offered was not to interpret the contract, but to introduce a new condition into it. These cases are not in conflict with the ruling in this case; they serve to illustrate its propriety. There was no error in the exclusion of evidence by the defendant touching the increased freight charges the defendant was obliged to pay because of the failure “to deliver the pulp 50 per cent. dry.” This seems to have been one factor tending to show actual damages, and it was accompanied with offers of evidence tending to show that the guaranty of such dryness was made with reference to the location of the defendant’s mills with respect to facilities of freight transportation. The actual production was 45 per cent, dry, and plaintiff gave evidence tending to show that that was more economical, from a business point of view, than 50 per cent. dry. The defendant did not offer to show that the-net result of all the advantages and disadvantages of the 45 per cent, dryness was a loss, but simply offered to show a fact which, without the addition of other related facts, did not appear to be material. I therefore concur in affirmance.