Sturges v. Buckley

McCurdy, J. This case is substantially the same as that of Sturges v. Buckley, reported ante, page 18. It is between the same parties, refers to the same custom, and is governed by similar principles. 1. As was said in that case, if the evidence tends to prove the usage it is admissible. That such was the tendency of the testimony objected to in this case there can be no question. It was directly in point. 2. The charge was unexceptionable. It required as much to be proved by the defendant to establish the custom as courts have ever demanded. Except that it is more exacting, it resembles that of Chief Justice Hosmer, in the case of Barber v. Brace, 3 Conn., 9, and that of Chief Justice Church, in Leach v. Beardslee, 22 id., 404. 3. The plaintiff claimed that the custom was not reasonable. This court held that it was so in the former case. It would be most unreasonable to insist that cider sent to market should be drawn off into different casks whenever transferred from one person to another, and that the precise barrels should be sent back to the original owners. About as well might this change be required in the case of flour or pork or fish. We do not advise a new trial. In this opinion the other judges concurred, except Park, J., who having tried the case in the court below did not sit.