Brown Chemical Co. v. Atkinson, Cobb & Co.

Ashe, J. The plaintiffs, partners in trade and doing business in the city of Baltimore, seek by this action to recover from the defendants, merchants and partners doing business in the town of Wilson, North Carolina, the balance of the value of forty tons of “Powell’s Tip Top Fertilizer” at twenty-seven dollars per ton, sold and delivered to the defendants between January 1st and March 1st, 1881, at Wilson. The plaintiffs allege that only the sum of $595 has been paid by the defendants, and they demand judgment for the balance. The defendants plead a counter-claim, and allege that the plaintiffs agreed to give them the right to sell the fertilizer in North Carolina, the right to do which could only be acquired by the payment of a tax of $500 to the board of agriculture; but that after the receipt of the goods at Wilson, in consequence of the failure of the plaintiffs to pay said tax, the fertilizer was seized by the commissioner of agriculture and the defendants were compelled to pay the $500 tax to relie've the fertilizer from the seizure. The only issue raised by the pleadings which was submitted to the jury, was : “ Was it a part of the contract that the license tax was to be paid on the guano by the plantiffs ? ” On the trial of the issue several exceptions were taken by the plaintiffs to His Honor’s ruling in the admission, of testimony, and to his refusal after verdict to grant a new *395 trial because of errors assigned in his rulings, and his refusal to render a judgment, notwithstanding the verdict, upon the admission of the defendants. The first exception was to the admission of the letter written by W. S. Powell,, treasurer, to the defendants, dated Baltimore, December 17th, 1880, and marked “ A ” in the record. The ground of the objection to the reception of the letter is not stated in the record. If Powell was one of the firm of the Brown Chemical Company, the letter was admissible as a proposition from the company. James T. Cobb, one of the defendants examined as a witness in their behalf, -testified that before the date of this letter he was in Baltimore in December, 1880, and had a conversation with Powell, the writer of the letter, who was one of the partners of the plaintiff firm, in their office, in reference to the terms upon which he and his partners could purchase fertilizers from the plaintiff company, and afterwards they received the letter in question from the plaintiffs. In the plaintiffs’ letter to them, marked “ G,” they, say, “ we submitted two propositions to your partner when in our office.” This evidently referred to the interview between the witness Cobb and Powell, for it does not appear that either of the partners of the defendant firm was at any other time in their office; and it recognized Powell as a partner, and also the propositions made by Powell to Cobb. For the propositions of Powell were not made at that time, but subsequently, in the letter of date December 17th, 1880, in response to the inquiries made by the defendant Cobb at the interview in the office. And Powell being shown to be a partner, the letter was admissible in evidence; and it was proper to be left to the jury, in connection with the other letters offered in evidence, as bearing upon the issue before them. The letters were all about the same subject matter between the same parties, and referring to the same contract, and were therefore admissible. Bobbitt v. Insurance Co., 66 N. *396 C., 70; Starkie on Evi., 95; 2 Parsons on Cont., 553; Colburn v. Dawson, 10 C. B., 4 Eng. L. and Eq., 873. The letters objected to had a direct and important bearing upon the question submitted to the jury. The plaintiffs, through their partner Powell, say, “I will give you the right to sell‘Tip Top Fertilizer’ at Wilson and Sparta, North Carolina,” upon terms thereafter mentioned. What was the right stipulated to be given ? Can it be other than the privilege of selling the article in this state? But by section. 2190 of The Code, that privilege can only be acquired by paying the tax of $500, and to give the privilege necessarily implied that the plaintiffs had acquired the privilege to do so.. The second and third exceptions were to the ruling of the court in admitting evidence in regard to the custom of manufacturers and dealers in commercial fertilizers in Baltimore, as to the payment of said license tax. The plaintiffs objected to the introduction of the testimony and to the competency of the witness who was offered to establish the custom. The witness (Hadley), after stating the means and opportunities he had had of obtaining a knowledge of the custom (which we think were sufficient to make him competent to speak of the custom), testified that he knew what the universal custom was, and what was generally understood and acted upon by merchants of Wilson and vicinity in their dealings with fertilizer companies in Baltimore; and that such custom was that the companies paid the license tax. We are of opinion the testimony of the witness was sufficient to establish the existence of the custom or usage in the town of Wilson, and afforded evidence, pertinent to the issue, to be considered by the jury, for it was admitted on the trial that the contract was made in the town of Wilson; and every contract with 'respect to any business or dealing, when the contrary is not expressed, or cannot be reasonably ferred, is presumed to be made with reference to the usage *397 of the place where it is entered into. The question, then, propounded to the witness — what was the custom of manufacturers and dealers in commercial fertilizers in Baltimore, as to the payment of the license tax ? must be taken as having reference to those dealings with traders in the town of Wilson. And it is well settled that parol evidence may be admitted to show a custom or usage of a place where a contract is entered into, for the purpose of annexing incidents to, and explaining the meaning of terms used in it, Moore v. Eason, 11 Ired., 568; and this court in deciding that case relied upon the case of Hutton v. Warren, 1 M. & W., 475, which is a leading English decision upon the subject, where it was held that, in commercial transactions, extrinsic evidence of a custom and usage is admissible to annex incidents to written contracts in matters with respect to which they are silent. The same rule has also been applied to contracts in other transactions of life, in which known usages have been established and prevailed. And this has been done upon the principle of presumption that in such transactions the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but a contract with reference to these known usages. On same point, we refer to Starkie on Evi., 709; Wigglesworth v. Dollison, Doug., 201; Van Ness v. Packard, 2 Pet., 137, and Vaughan v. Railroad, 63 N. C., 11. The fourth exception, to the refusal of His Honor to grant a new trial, cannot be sustained, for that was a matter within his discretion. And the last exception which was to his refusal to render judgment in behalf of the plaintiffs, non obstante veredicto, was properly overruled, for we see nothing in the record, which could have warranted the court in rendering such a judgment. There is no error, and the judgment of the superior court is therefore affirmed. No error. Affirmed.