Summary
In Hawes v. Lawrence, 4 N.Y. 345, it was held that the words "on or about" as used in that contract amount to nothing more than a mere representation, and were not words of warranty.
Summary of this case from Brown Bigelow v. BardOpinion
December Term, 1850
H. Nicoll, for appellants.
D. Lord, for respondents.
This case must turn upon the construction of the contract of sale. If the words "sailed on or about the 15th March ult." in the memorandum of sale ought to be construed as a condition or a warranty that the vessel had sailed within the time implied by those terms, the defendants were under no obligation to receive the goods and complete the sale, unless the vessel had actually sailed at a time within the terms of such condition or warranty.
It was not contended upon the argument that the terms used were intended by the parties as an express condition, but the defence was based upon the assumption that they were intended by the parties as a warranty that the vessel should sail at the time specified. As the contract was executory, the defendants would not have been bound to accept the oil if there had been a breach of warranty in relation to the time of sailing. It becomes therefore the only question in the case, whether, by a fair construction of the contract of sale, this should be deemed a warranty or a mere representation. Although it is by no means free from doubt, I am inclined to the opinion that no warranty was intended by the parties.
In the first place, if the time of sailing had been deemed important by the parties, and likely to affect materially their interests, it is somewhat strange that they had not specified a particular day after which if the vessel should sail the contract should be void. The fact that the time was left thus vague raises a strong presumption that the parties did not intend to make the time of sailing a material part of the contract. Neither party knew the exact time of sailing, but both supposed it was near the 15th. Again, if those words amount to a warranty, the plaintiff would have been liable to the defendants for any damages which he might have suffered in consequence of the delay. Nay more, if for any cause the vessel had failed to sail altogether, the plaintiffs would have been responsible for any loss of profits in the adventure which the defendants might have sustained. I can not think that the parties would have couched a provision so important in its bearing upon their interests in so uncertain and vague terms. I think it should be construed rather as a mere representation of the belief of the factor, which in the absence of any fraud or intentional misrepresentation can not affect the contract.
It was said upon the argument, that if the time mentioned had been definite, as on the 15th of March, it would have constituted a warranty, Whether that be so or not can not affect the decision in this case. The primary object in the construction of contracts is to arrive at the intention of the parties. The fact that an expression is left vague and uncertain where it might readily have been made definite and certain, may exert an important influence upon that question.
Again, it was said that if the goods had been insured, and the application had described the vessel as having sailed "on or about the 15th of March," it would have been held a warranty. I think this position may well be doubted. If the applicant withholds any information which is material, and which if known might increase the hazard, it would undoubtedly make the policy void. (5 Hill, 188; 2 Denio, 75.) And when any representation amounts to a warranty in a policy of insurance, if not true it renders the policy void, whether it be material to the risk or not. One of the cases cited by the defendants' counsel shows that the time of sailing specified in a policy is not always deemed a warranty. In Mackey v. Rhinelander, (1 John. Cas. 408,) the assured had represented in his application that the vessel had been out nine weeks, whereas it had been out ten weeks and four days. The court held the variance not material, as it had not been out sufficiently long to raise any suspicion of loss of accident. In that case the party knew, or at least had the means of knowing, how long the vessel had in fact been out. If the words had amounted to a warranty the underwriters would have been discharged, whether material or not. They must therefore have been considered by the court to be mere representations forming no material part of the contract.
Upon the whole I think that the time of sailing specified in this contract was not intended by the parties as a warranty, and the defendants were not discharged from their obligation to receive and pay for the oil.
If this view of the construction of the contract be correct, then the offer to show the meaning of the words "on or about" was properly rejected. So also was the offer to show when the season for the trade in oil commences and terminates. Had the evidence upon the latter point been received, it would only tend to show that the defendants had made a very imprudent contract, but it could scarcely have thrown any light upon the construction of the contract itself. The letter of May 28 was offered as an answer to a letter from the plaintiffs which the defendants themselves had put in evidence, and was clearly improper. The judgment should therefore be affirmed.
Judgment affirmed.