Desha, Smith & Co. v. Holland

COLLIER, C. J. It cannot be assumed, that the custom which the plaintiff sought to establish was unreasonable, and therefore contrary to law. .The powers of a factor in the cotton trade certainly authorize him to appoint an agent to examine the condition of cotton consigned to him for sale or shipment, and to invest such agent with authority to put it in a situation that it may be disposed of in the one mode or the other. If lie think proper, he may appoint the bailee with whom it is deposited for safe keeping, to perform this service. It is for the interest of the owner of the cotton that the factor should possess such a power; for an internal damage in a compressed bale, we all know frequently extends itself very rapidly, 'so that if the factor was compelled to obtain a special authority in such case, the loss to the owner would be frequently increased, before the progress of the damage could be arrested. If then he may appoint an agent to act for him in each, or in all cases, where cotton is consigned to him, is not a custom which makes the warehouseman an agent pro re nata, altogether reasonable ? It is but the substitution of a standing, continuous authority, as a substitute for one specially created as occasion may require, and its reasonableness, whatever may be said of its liability to abuse, cannot be pronounced against. . If the warehouseman be an honest and prudent man, it would really seem peculiarly proper that he should be authorized to cause cotton stored with him to be freed from internal damage. Such damage it is said, and generally credited, sometimes generates combustion. To prevent, such a result, the warehouseman and his agents would be likely to exercise circumspection — discover the damage more readily than any one else, and thus be,enabled to take the promptest measures to prevent its extension. Besides, their experience would soon give them facilities for making such discovery more readily than most other persons. v ' Assuming the existence of the custom which makes the warehouseman the sub-agent of the factor, we can conceive of no objection to its extension, so as to make the latter the debtor of the pickery, for separating the damaged from the merchantable cotton. In this view of the case, we think the evidence objectd to, was properly admitted. [519] It is not indispensable to the validity of a custom, that it should be universally acquiesced in; for this would be to annul all customs as to those who were unwilling to abide by them. Instead of having the force of law, and being of general obligation, they would depend for their operation upon the gratuitous assent of every person against whom they were invoked. It is enough if a custom be “ general and uniform.” In respect to the necessity of making Thomas Holland a joint plaintiff, we think, that although it would have been competent to join him, it was not indispensable to do so. The evidence shows, that in the business of the cotton pick-ery, he was merely a dormant partner, and the law is well settled, that in such case he is an allowable, but not an essential party. [See Monroe v. Ezzell, at the last term.] This view disposes of the case as presented by the record. But as it would doubtless be more satisfactory to the parties, and to prevent any misapprehension, we would remark, that Looking to all the facts recited in the bill of exceptions, they fall altogether short of establishing a custom, such as that of which the plaintiff’s right to recover is predicated. It is apparent from an examination of the evidence that it is contradictory, showing nothing like a certain and uniform usage, which is essential to its validity. [Price v. White, 9 Ala. R. 563; 3 Watts’ Rep. 178; 1 Hill’s S. C. Rep. 270; Trott v. Wood, 1 Gall. Rep. 443; Buck v. Grimshaw, 1 Edw. Ch. R. 147; Consequa v. Willings, Pet. C. C. Rep. 230; Parrott v. Thacker, 9 Pick. Rep. 426.] It is certainly true, that usages among merchants should be very sparingly adopted as rules of law, as they are often founded in mere mistake, and still more often in the want of enlarged and comprehensive views of the full bearing of principles, (2 Sumn. R. 377); and we would add, are not unfrequently intended to advance some particular-interest at the expense of a large class of the community. Even where well intended, they are sometimes set up as a means of protecting selfishness and dishonesty. But the entire evidence, and its legal effect is not submitted to our judgment. We have only to decide the questions raised upon the record for revision — this duty has been performed, and we have only to declare that the judgment is affirmed.