Spencer v. Millisack

The agreement between the defendants is, that Millisack shall invoice his stock of goods at wholesale price, and then cut ten per cent from the invoice price. The court found as a fact that it is generally understood among merchants that wholesale price means the price paid by the buyer to the wholesale merchant, without carriage. When the defendants came to settle, they added to the invoice of goods the-sum of five per cent for carriage. .No new contract was made, for the. court finds that no further or new consideration passed between the parties. What occurred between them was simply an expression of the understanding which they then had of the meaning of their original agreement. It was agreed *34that pursuant to this understanding the defendant Swaim should execute his note to the plaintiff, with security, for $240, and that thereupon the note of the defendant Millisack should be regarded as satisfied, and should be surrendered. But this was never done. The agreement between Millisack and Swaim as to the amount due, and the manner of payment, was never consummated. It amounted to no more than a mere understanding as to the amount due under the original contract. The question now is whether this understanding shall prevail over the real meaning of the contract, as imported by its terms, and as generally understood by merchants. The court held that the understanding of the parties at the time of their settlement must prevail. In so holding, we think the court erred. If the agreement had been consummated and Swaim had executed his note to plaintiff, with surety, jmyable in two years, and Miliisack’s note had been surrendered, a very different question would be presented. But here was nothing more than an understanding- as to the amount due. Swaim obtained no extension of credit. None of the parties changed their situation.

The defendants made a computation of the- amount due upon the contract. In making- this computation they did not properly understand the meaning of the contract. In a suit upon the contract its real, and not its supposed, meaning must prevail.

The defendant Swaim in'his answer as garnishee, admitted owing the defendant Millisack $70. Judgment should be rendered against him for that amount in favor of Collins & Downing, -without costs.

Reversed.