6. EVIDENCE 448 BYING WRITINGS. answer. PAROL EVIDENCE VA-I complaint, the sustaining of appellee's separate demurrer to the second amended, and If the language of a writing or any portion the additional third paragraph of appellants' thereof is ambiguous or of uncertain meaning or application, parol evidence may be heard, not to vary or contradict the writings, but to Omitting formal and unquestioned allegaascertain the sense in which the language was tions, the complaint is, in substance, as folused and its application to the subject-matter of the contract, to arrive at the true intention of the parties at the time the contract was entered into, and in ascertaining such intention the court will consider the relation and situation of the parties, the character of the transaction, and all the surroundings and conditions attending the execution of the contract. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. 448.] 7. SALES 1(1)-CERTAINTY. An alleged sale contract by letters and telegrams, wherein defendant wrote "quote us 25 50's Santos 4's same as last," and plaintiff replied "Santos fours sixteen and half subject to return confirmation," and defendant then telegraphed "ship twenty-five fifties Santos fours at quotation," is so ambiguous and uncertain in view of the phrase "same as last" that it will not support an action for the purchase price. lows: Appellee was a wholesale dealer in coffee in the city of New York, and among the brands of coffee sold by it to dealers was that known as "Santos 4's," which was sold in bags of 50 pounds each, commonly designated to dealers as "50's." That appellants, Will H. Robbins and Charles H. Johnston, under the firm name of W. H. Robbins & Co., were engaged in the wholesale grocery business in Greensburg, Ind.; that in 1913 appellee entered into a written contract with appellants through the following letter and telegrams for the sale and purchase of 25 bags of 50 pounds each of said "Santos 4's" at the agreed price of 161⁄2 cents per pound, which letter and telegrams are as follows: Letter. [Ed. Note.-For other cases, see Sales, Cent. Will H. Robbins Dig. 1; Dec. Dig. 1(1).] Charles H. Johnston W. H. Robbins & Co. Appeal from Circuit Court, Decatur Coun- Wholesale Grocers and Commission Merchants, Clover and Timothy Seed. New York, Mar. 10, 1913. Greensburg, Indiana, Mar. 10, 1913. FELT, C. J. This action was brought by appellee against appellants, Will H. Robbins and Charles H. Johnston, doing business under the firm name of W. H. Robbins & Co., to recover the purchase price of 1,250 That on March 19, 1913, in response to pounds of coffee alleged to have been sold said letter and telegrams, appellee shipped to appellants by appellee. The demurrer to to appellants by the usual and ordinary the amended second paragraph of complaint routes of carriage 25 bags of 50 pounds each for insufficiency of facts was overruled. Ap- of the coffee designated and so ordered by pellants filed an amended second paragraph appellants. That the same was addressed and an additional third paragraph of an- and consigned to W. H. Robbins & Co., Greensswer to the amended second paragraph of burg, Ind., and delivered to the Erie Railroad complaint. Appellee demurred to each of Company for transportation to appellants, such paragraphs of answer for insufficiency and said railroad company accepted said cofof facts alleged to constitute a defense to its fee and undertook the delivery thereof. That cause of action, and each of such demurrers appellee caused the same to be billed to appelwas sustained. Thereupon appellee with- lants and mailed to them an invoice and bill drew its first paragraph of complaint and of lading for the coffee so shipped as aforeappellants withdrew their first paragraph of said, which invoice and bill of lading were answer. Appellants failed and refused to received by appellants. That said railroad plead further, and elected to stand on their company was at said time a common carrier said answers and the rulings of the court in of goods and merchandise from the city of the demurrers thereto, and the court ren- New York to Greensburg, Ind., and other dered judgment for appellee against appel- points. That it was understood by appellants in the sum of $207.50. From this lants that appellee was selling and appellants judgment appellants appealed, and have as- were buying 25 bags of 50 pounds each of signed as error the overruling of their de- coffee known as "Santos 4's" at the agreed murrer to the amended second paragraph of price of 162 cents per pound. dealing, but the rule is not changed by a mere right of inspection to ascertain whether the goods delivered are, in fact, such as were purchased. The right of inspection, in the absence of any established custom or agreement to the contrary, does not prevent the title from passing to the purchaser on delivery to the carrier of the goods duly consigned to the purchaser, but, if on inspection the goods are not found to be such as were purchased, that fact may authorize a rescission of the contract of sale. Wind v. Iler & Co., 93 Iowa, 316, 61 N. W. 1001, 27 L. R. A. 219, 220; Foley v. Felrath, 98 Ala. 176, 13 South. 485, 39 Am. St. Rep. 39; Boothby v. Plaisted, 51 N. H. 436-437, 12 Am. Rep. 140; 4 Elliott on Railroads (2d Ed.) § 1414; 35 Cyc. 195. The memoranda accompanying the demurrer to the complaint is, in substance, as follows: The complaint does not aver that the goods sold were delivered to the purchasers; the averments do not show an unconditional purchase of the goods f. o. b. New York City; the averments do not show the coffee shipped was the "same as last," nor do they explain the meaning of such phrase; the complaint shows the goods were never delivered to the purchaser, but were delivered to the Erie Railroad Company; the averments do not show an unconditional sale of the coffee without the right of inspection at Greensburg, Ind., and confirmation or rejection and compliance with conditions of payment; the averments do not show that appellants received notice of the shipment or that the seller performed all the conditions of the sale to be [3] If goods are sold to be delivered by the performed by it. The theory of the com- seller at the residence or place of business of plaint is that the letter and telegrams con- the purchaser, a delivery to the carrier is not stitute a contract of sale, that appellants ac- a delivery to the purchaser; for in such case cepted the proposition and terms of appellee the carrier is the agent of the seller and not for the sale of 25 bags of the brand of coffee of the purchaser. In such instance failure to designated, at the price quoted, and that ap- deliver the goods to the purchaser according pellee thereupon duly consigned the ship- to the terms of the sale will defeat recovery ment to appellants, sent them a bill of lading of the purchase price of the goods. Section therefor, and delivered the coffee to the Erie | 1040, Benjamin, Sales (1883); 35 Cyc. 195, and Railroad Company, a common carrier of such cases cited; Braddock Glass Co. v. Irwin, goods from New York to Greensburg, Ind., 152 Pa. 440, 25 Atl. 490; McNeal v. Braun, for transportation and delivery to appellants, 53 N. J. Law, 617, 23 Atl. 687, 26 Am. St. and thereby they became the owners of the Rep. 441; Devine v. Edwards, 101 Ill. 138coffee at the time of its delivery to the rail- 141; Murray v. Nichols Mfg. Co., 11 N. Y. road company as aforesaid. Supp. 734; Bartlett v. Jewett, 98 Ind. 206; Sohn v. Jervis, 101 Ind. 578, 1 N. E. 73. [1] Where goods are bought at one place to be consigned and transported to the purchaser at another place, in the absence of any arrangement or agreement to the contrary, the general rule is that delivery by the seller to a common carrier of such goods, duly consigned to the purchaser, is a delivery to the purchaser; for the carrier thereby becomes the agent of the purchaser, and title to the property passes to him at the time of such delivery. There are exceptions to this general rule, but, in the absence of facts showing a different agreement or arrangement, the presumption is that the general rule prevails. Pa. Co. v. Holderman, 69 Ind. 18-26; Pa. Co. v. Poor, 103 Ind. 553, 554, 3 N. E. 253; Sohn v. Jervis, 101 Ind. 578-582, 1 N. E. 73; Butler v. P., C., C. & St. L. R. R. Co., 18 Ind. App. 656-660, 46 N. E. 92; Tebbs v. C., C., C. & St. L. Ry. Co., 20 Ind. App. 192-199, 50 N. E. 486; Kilmer v. Moneyweight Scale, 36 Ind. App. 568-571, 76 N. E. 271; Hill v. Fruita, etc., Co., 42 Colo. 491-497, 94 Pac. 354, 126 Am. St. Rep. 172; Kelsea v. Ramsey & Gore Mfg. Co., 55 N. J. Law, 320, 26 Atl. 907, 22 L. R. A. 415, and notes; 4 Elliott on Railroads (2d Ed.) § 1414; 5 Elliott on Contracts, § 5042. [2] The general rule above stated may be changed by agreement of the seller and purchaser, either express, or implied from facts and circumstances or an established course of The amended second paragraph of answer admits the execution of the letter and telegrams set out in the complaint, and avers that the phrase "same as last" in appellants' letter of March 8, 1914, referred and had reference to a former shipment of coffee by appellee to appellants, and that both parties then and there understood the same, and that it had a special meaning, and referred to the condition and terms of delivery and payment for said former shipment, and both parties knew and understood that by the quotation asked for in said letter the coffee was to be delivered to the purchasers in Greensburg, Ind., as former shipments had been delivered, and that "Santos 4's" was a standard grade of coffee quoted and sold generally on the market, and was so designated by all dealers in coffee; that in November, 1912, a shipment of such coffee was made to appellants upon the express agreement that said coffee should be delivered to appellants at Greensburg, Ind., and there be examined by them, and, if satisfactory, to be accepted and paid for within 90 days from the date of such delivery to them in Greensburg, and such former shipment was delivered to and paid for by appellants on such conditions; that in January, 1913, appellants made another similar purchase, and the same was shipped, examined, accepted, and paid for within 90 days from the date of delivery in Greensburg, under the aforesaid terms and conditions; that when the purchase was made in November, 1912, as aforesaid, it was expressly agreed by and between appellants and appellee that any future purchase of coffee made by appellants should be upon the condition that the same would be delivered by appellee to appellants at Greensburg, Ind., subject to inspection and payment as above stated; that appellee did not deliver the aforesaid purchase of coffee of March 10, 1913, to appellants in Greensburg, Ind., or any part thereof, and the same has never been delivered to them. "In interpreting a contract the language employed therein is the exclusive medium through which to ascertain its meaning; but in case the terms employed are ambiguous, or susceptible of more than one meaning, the situation of the parties and the circumstances under which the contract was made may become a proper subject which the language was employed. Cravens v. of inquiry in order to arrive at the sense in Eagle Cotton Mills Co., 120 Ind. 6 [21 N. E. 981, 16 Am. St. Rep. 298], and cases cited. This in no wise militates against the rule that the meaning of the parties is to be ascertained from the language used in the writing, and that the interpretation of the instrument is a duty resting upon the court. The court may, however, in a proper case, direct the jury that the instrument may mean one thing or the other, defound by them from the evidence." The third paragraph of answer is substantially the same as the amended second para-pending upon extraneous circumstances to be graph. The gist of the memoranda accompanying the demurrers to the special answers is that the answers do not show that the contract of sale is indefinite, uncertain, or ambiguous; that the meaning of the phrase "same as last" is not uncertain, indefinite, or ambiguous, when read in connection with the whole contract set out in the complaint. [4] Accepting the theory of the complaint as indicated by its general tenor, the contract of sale must be determined by a consideration of the letter and telegrams set out there in in the light of the other averments, and in so doing effect must be given to all parts thereof if it can be done reasonably without doing violence to the evident intention of the parties as ascertained from a due consideration of all portions of the writings. [5] Here the contract is in writing, and the language employed is unambiguous, it is a cardinal rule of construction that it shall be In Leiter v. Emmons, 20 Ind. App. 25, 50 N. E. 41, supra, this court, by Robinson, C. J., said: "As it was a contract made with reference to a particular business, it is presumed that it was made with reference to the ordinary course of such business. In such case it would be proper to consider the general and known course of business of appellants. While it is true that usage cannot control an express contract, yet, where a contract is ambiguous, the presumption is that it was made with reference to the known usage or general course of the particular business. In such case the question becomes one of fact to be determined as any other question of fact." [7] In our view the contract under consideration is ambiguous, and especially the phrase "same as last" in the letter of March 8, 1913. This phrase is susceptible of more than so interpreted as to carry into effect the in-one meaning. It was used by appellants in tention of the parties as expressed by the writings. connection with a particular business, and was addressed to appellee, with whom the answer shows appellants had established a course of dealing in which the phrase so used may have been understood by all the parties to have the meaning alleged in the answer. In such instance the previous established course of dealing and agreements between the parties, their situation, and the circumstances under which the contract was made became proper subjects of inquiry to ascertain the application of the phrase and the sense in which the language was em [6] If the language or any portion thereof is ambiguous or of uncertain meaning or application, parol evidence may be heard, not to vary or contradict the writings, but to ascertain the sense in which the language was used and its application to the subject-matter of the contract, to arrive at the true intention of the parties at the time the contract was entered into. In ascertaining such intention the court will, if necessary, consider the relation and situation of the parties, the character of the transaction, and all the surround-ployed. ings and conditions attending the execution of the contract. Warrum v. White, 171 Ind. 574-577, 86 N. E. 959; Hitz v. Warner, 47 Ind. App. 612-613, 93 N. E. 1005; Chapman V. Lambert, 176 Iud. 461-467, 96 N. E. 459; Olds Wagon-Works v. Coombs, 124 Ind. 6265, 24 N. E. 589; Martindale v. Parsons, 98 Ind. 174-179; Leiter v. Emmons, 20 Ind. App. 22-25, 50 N. E. 40; Thomas v. Troxel, 26 Ind. App. 322-327, 59 N. E. 683; Kann v. Brooks, 54 Ind. App. 625, 101 N. E. 513. In Olds Wagon Works v. Coombs, 124 Ind. 65, 24 N. E. 590, Judge Mitchell used lan If, as alleged in the answer, appellee undertook to deliver the goods to appellants at Greensburg, the shipment would not be controlled by the general rule above announced, and failure to so deliver them would be a complete defense to appellee's suit. We therefore hold that each of the special answers states a defense to the cause of action alleged in the complaint, and it was error to sustain the demurrers thereto. The judgment is reversed, with instructions to overrule each of the demurrers to the special answers, and for further proceed (225 Mass. 425) HERSAM v. ÆTNA LIFE INS. CO. et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 4, 1917.) 1. INSURANCE 585(4) - CONSTRUCTION OF POLICY BENEFICIARIES "THEIR CHIL DREN." Where a life insurance policy is payable to the husband of the insured or, in the event of his death before hers, to their children, their executors, administrators, or assigns, the words "their children" referred to the children of both insured and her husband, and does not include a child of the husband by a previous wife. [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 1463, 1466; Dec. Dig. 585(4). For other definitions, see Words and Phrases, First and Second Series, Their Children.] 2. INSURANCE 585(4) BENEFICIARIES RIGHT TO PROCEEDS. A life insurance policy was made payable to the husband of insured or, in the event of his death before hers, to their children, their executors, administrators, or assigns. The husband was dead when the policy was issued. There were no children of insured and the husband, but the husband left a child by a former wife, who was administratrix of her father's estate. Held, that as the interest of the husband was contingent upon his surviving the insured, he acquired no transmissible interest in the proceeds of the policy which his personal representative could enforce. ous wife, namely, Ellena T. Palmeter, who is the claimant in this action. The agreed statement of facts is meager. It is not questioned that this policy was rightly issued by the company, after the death of Eben S. Thompson. In the absence of the application and the policy we infer that the contract was between the company and Mrs. Thompson, and that she paid the premiums. St. 1913, c. 716, § 5. See Millard v. Brayton, 177 Mass. 533, 59 N. E. 436, 52 L. R. A. 117, 83 Am. St. Rep. 294. The record sets out only the above quoted clause in the policy. The sole question raised by the report and argued by counsel is one of interpretation of this clause, thereby determining which of the parties is entitled to the insurance money. [1] The first contention of the claimant is that she is entitled to the proceeds of the policy as the only child of said Eben S. Thompson. But we see no reason for interpreting the word "their" in other than its ordinary collective meaning, referring to children of both Martha and Eben, and not to children of Eben by another wife. Crandall v. Ahern, 200 Mass. 77, 85 N. E. 886; Crapo v. Pierce, 187 Mass. 141, 72 N. E. 935. The language viewed in the light of the circumstances under which it was used, manifests no different purpose. Considering the present policy by itself, the language was Where a life insurance policy was made pay- appropriate to provide for a possible postable to the husband of insured, or in the event of his death before hers to their children, where humous child of Eben. The reasonable inferthere are no such children, the right to the pro-ence from the agreed facts, however-and ceeds reverts to the insured and her representatives as a lapsed trust. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1463, 1466; Dec. Dig. 585(4).] 3. INSURANCE 585(4) - PROCEEDS-LAPSED TRUST. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1463, 1466; Dec. Dig. 585(4).] Appeal from Municipal Court of Boston, Appellate Division. Action by A. Hersam, executor, against the Ætna Life Insurance Company and Ellena T. Palmeter, claimant, to determine the right to proceeds of an insurance policy. From a judgment of the appellate division in favor of claimant, plaintiff appeals. Reversed and rendered. Jas. E. Young, of Boston, for appellant. Herbert S. Riley, of Boston, for appellee. indeed the actual fact as stated in the defendant's answer-is that the language simply followed the wording of the earlier policy, which was dated June 11, 1865, when the two well might have anticipated the likelihood of having children. 25 Cyc. 889, and cases cited. [2] The claimant further contends that if not entitled to the proceeds of the policy as daughter, she takes it as administratrix of the estate of her father. By the terms of the clause in question, however, the interest of Eben S. Thompson was contingent upon his surviving the assured. As he was deceased when this paid up policy was issued, manifestly no interest could vest in him as beneficiary. Even if we consider that this policy as between the parties stands in the DE COURCY, J. The insurance policy was place of the original (see Pingrey v. Nat. issued on the life of Martha A. Thompson, Life Ins. Co., 144 Mass. 374, 11 N. E. 562; the plaintiff's testatrix, and was "payable to Millard v. Brayton, 177 Mass. 533, 540, 59 her husband, Eben S. Thompson, or in the N. E. 436, 52 L. R. A. 117, 83 Am. St. Rep. event of his death before hers to their chil- 294), any interest vesting in him was subdren, their executors, administrators or as- ject to be defeated by his death before that signs." It was a paid up policy for $612, | of the assured. He had no transmissible inexecuted and delivered on or about June terest in the proceeds, and his personal rep. 28, 1877, and apparently was given in consideration of the surrender of a life policy for $1,000, dated June 11, 1865. Eben S. died February 3, 1877, or more than four months before the policy in question was issued. No children were born to him and Martha A., but he had a daughter by a previ. resentative consequently acquired none. Fuller v. Linzee, 135 Mass. 468; Haskins v. Kendall, 158 Mass. 224, 33 N. E. 495, 35 Am. St. Rep. 490. See Wilde v. Wilde, 209 Mass. 205, 95 N. E. 295; Davis v. New York Life Ins. Co., 212 Mass. 310, 98 N. E. 1043, 41 L. R. A. (N. S.) 250. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [3] As there were no children of Eben S. and Martha A. Thompson to take as bene ficiaries after his death, the right reverted to the assured as a lapsed trust, and on her death the benefit of the insurance passed to her representative. It follows that the order of the appellate division adjudging the fund in question to be the property of the claimant, Ellena T. Palmeter, must be reversed, and judgment entered in favor of the plaintiff. So ordered. (225 Mass. 418) BABCOCK v. LEOPOLD MORSE HOME ORPHANAGE. (Supreme Judicial Court of Massachusetts. Norfolk. Jan. 4, 1917.) 1. TAXATION 241(1) EXEMPTION REAL [Ed. Note. For other cases, see Taxation, 2. TAXATION 241(1) EXEMPTION - REAL ESTATE OF CHARITABLE CORPORATION-OC CUPANCY. In order that real estate of a charitable corporation may be exempt from taxation under St. 1909, c. 490, pt. 1, § 5, the nature of the occupation of the real estate by the corporation or its officers must be such as to contribute_immediately to the promotion of the charity and involve a physical participation in the forwarding of the corporation's beneficent objects. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 389, 391, 393; Dec. Dig. 241(1).] 3. TAXATION PROOF. 251-EXEMPTION-BURDEN OF In an action to recover taxes, the burden is on a party claiming exemption from taxation to establish his contention. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 343-345; Dec. Dig. 251.] 4. TAXATION 241(1) - EXEMPTION - REAL ESTATE OF CHARITABLE CORPORATION. Where the inmates of the home of a charitable corporation, organized to provide a home for aged and infirm and for children, were removed, and thereafter only a caretaker resided in the house, the real estate comprising the home was not exempt from taxation under St. 1909, c. 490, pt. 1, § 5, though the officers and trustees occasionally met at the house and some of the furniture was left therein. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 389, 391, 393; Dec. Dig. 241(1).] Exceptions from Superior Court, Norfolk County; Philip J. O'Connell, Judge. Geo. Chandler Coit and Chas. S. Pierce, both of Boston, for plaintiff. Lee M. Friedman and Swift, Friedman & Atherton, all of Boston, for defendant. RUGG, C. J. The plaintiff is the tax collector of the town of Milton. He brings this action to recover taxes assessed upon the defendant's real estate in that town for 1912, 1913 and 1914. The defendant is a charitable corporation entitled to an exemption from taxation under St. 1909, c. 490, pt. 1, § 5, for its "real estate owned and occupied" by it or its officers for the purposes for which it was incorporated. But it is not entitled to exemption on any other ground. The defendant owned real estate which for several years prior to 1912 was adapted for and used as a home for aged and infirm and for children. The aged and infirm were gradually removed and for some time it was used for children only. Modern philanthropic methods tend toward providing homes for children in families rather than gathering them in a general home. The defendant was authorized by St. 1912, c. 113, to transfer the income of all its property to another charitable corporation working in the same field. That act was accepted, a decree of the court entered according to its terms, and the defendant has paid its income to the other corporation. The children were all removed from the defendant's home in March, 1912. The defendant voted to allow the Canterbury Street Home to have such of its furniture and household equipment as it wanted. Some has been taken and the rest left at the defendant's home in Milton. Since the children have been removed, a caretaker has resided in the house. The board of trustees of the defendant, in April, 1912, granted the request of the Hebrew Women's Sewing Association to use the premises for "Country Week" for poor children. There was testimony to the effect that once at least in each of the years 1912, 1913 and 1914 meetings of the trustees or officers of the defendant had been held in the house, but the record books only showed records of meetings held in Boston. There was testimony from several witnesses that since March, 1912, the premises had been occupied only by the caretaker. The judge found that the real estate was not being used for the purposes for which the defendant was incorporated and found for the plaintiff. [1, 2] The defendant is not entitled to an exemption from taxation unless the real estate is occupied for the charitable purposes Charlesbank for which it was organized. Homes v. Boston, 218 Mass. 14, 105 N. E. 459. Such occupancy means something more than that which results from simple ownership Action by Josiah Babcock against the and possession. It signifies an active apLeopold Morse Home for Infirm Hebrews propriation to the immediate uses of the and Orphanage. Findings for plaintiff, and charitable cause for which the owner was defendant excepts. Exceptions overruled. organized. The extent of the use, although |