Outwater v. Nelson

By the Court, Harris, J. Every contract may reasonably be presumed to be made with reference to the existing state of things. Hence it is said, that “ the usage or habit of trade or the conduct of an individual, which is known to the person who deals with him, may be given in evidence, to prove what was the contract between them.” (2 Greenl. Ev. § 251.) It appears from the receipts given in evidence that the corn delivered by Nelson to Outwater was not sold, but was delivered “on freight.” What did the parties intend by this 1 It has already been held, in reference to these very words, that evidence may be given to explain their meaning. (Dawson v. Kittle, 4 Hill, 107.) It is obvious that the party receiving the corn did not become the absolute purchaser. What then was the relation in which he stood to the owner ? When and how was he to become liable to pay for the corn ? The defendant in the court below offered evidence to explain this. He offered to show that for forty years it had been the practice at the landing where this corn was delivered, to pay for grain left on freight after the owner had ordered it to be freighted, and not before; and that this practice was known to the plaintiff. He went further, and offered to show that the plaintiff himself had been in the habit for many years of leaving grain at the same place to be freighted, upon the same terms. If these facts had been proved, no one could have hesitated to say that when the parties used the words “ on freight,” in their contract, they’both understood that it was left to be disposed of according to the usage of the place and of the parties themselves. Such a custom as that contained in the offer is convenient and reasonable. It enables the producer to select his own time to dispose of his grain, and thus secure the chance of an increased price; while the freighter may also, by freighting and selling before he is ordered, avail himself of the chance of a reduced price. The court also erred in charging the jury that the evidence [32] was sufficient to entitle the plaintiff to recover. It was, in effect, directing a verdict for the plaintiff. It could not be pretended that the defendant was liable, unless he had shipped the corn, nor unless he had been called upon for payment. These, at least, were questions of fact which should have been submitted to the jury, even as the law was viewed by the court below. Other questions arose upon the trial, upon some of which I am inclined to think the court erred. But, for the errors already noticed, the judgment must be reversed and a venire de novo awarded to the Dutchess county court; with costs to abide the event. [Albany General Term, December 4, 1854. Parker, Wright and Harris, Justices.]