Tremble v. Crowell

Graves J. The defendants in error sued Tremble in the court below in assumpsit and sought to recover from him certain money which they alleged ..they had paid him for a quantity of fish he had sold to them, and which had proved to have been unsound and valueless. The declaration contained the common and money counts, and also a special count in which the defendants in error alleged in the usual manner that the plaintiff in error warranted the fish to be good, sound, and fit for market. The plaintiffs below, after giving evidence to show that they were wholesale fish dealers at Toledo, in the State of Ohio, and purchased of the defendant, who was a fisherman at Bay City, and paid therefor, about $1.q00 worth of fish, of which on their arrival at Toledo, some sixty - eight half barrels were found to be spoiled and valueless, offered evidence to prove that there was a settled uniform usage, that under a contract for the sale of fish for cash, and where there was no express warranty if the fish or any portion of them proved to be unsound, the vendor should be liable to pay back to the purchaser, the money paid for such unsound fish, and the evidence was admitted under objection. Subsequently the Circuit Judge in submitting the case to the jury instructed them that if they should find such a settled uniform usage it was valid, and that by virtue thereof, the plaintiffs would be entitled to recover the money paid for the unsound fish, unless the parties' made a contract excluding by.- its very terms the operation of such usage; and to this direction the defendant below excepted. These objections present the main questions in the case. It will be observed that the usage relied on, would, if established, place the dealers in fish in Bay City and [498] vicinity, in a position very different from that held by persons in the same business in other parts of the state; and would tacitly annex to all contracts there made for the sale of fish, unless expressly excluded by the contract itself, a stipulation, which would tend, inevitably, to supersede all official as well as private inspection; and would prescribe a specific redress in case of the sale of-“tainted” or “damaged” fish, entirely different from that marked out by the statute. Would such a usage be a reasonable one if conclusively proved ? It' appears to me that it would not. The legislature have thought proper to provide for a system of public inspection of various - articles, and among them the article of fish; and have made numerous and precise regulations on the subject. — 1 Comp. L. p. 386 also, 392 to 394. They have provided for the election of inspectors; have required them to make inspection when desired so to do; have specified the manner in which it should be done; have provided that the fish inspected should be designated by the inspector as number “one,” or “two,” according to quality, and have required the inspectors to report annually to the Secretary of State the quantity, quality, and kinds inspected during the year. They have also provided that, if any person shall sell, within the state, or export, or cause to be exported' therefrom, any tainted or otherwise damaged fish, unless with the intent that the same shall be used for some other purpose than as food, he shall forfeit $10 for every one hundred pounds of such fish; and that upon the trial the burden of proof shall be upon the vendor to show for what purpose such fish were sold or exported. By another section they have declared that it shall not be obligatory upon any one to have fish inspected; but that all contracts for the sale of fish shall be deemed made with [499] reference to those provisions of the statute regulating the quality, quantity and other descriptions, unless the parties otherwise expressly agree.— Comp. L. §1286. Although the statute is not imperative on the subject of inspection, the penal provision against the sale of “tainted” or damaged fish is so; and the whole act is plainly expressive of a legislative purpose to provide the system of regulations for the trade, which the legislature deemed the best. Whether the usage in question would directly and necessarily conflict with any of these statutory regulations need not be determined, since in my opinion the usage can not be sustained if found to be inconsistent with the policy or spirit of the statute. It appeal’s to me to be a part of the policy of the law in question to encourage the practice of official inspection and discourage a contrary course; to regulate the traffic in fish in the manner most likely to insure fairness between dealers, and maintain everywhere the reputation of a most important branch of the commerce of the state. As the supposed usage assumes that the article is purchased without the safeguard of inspection, and that the buyer will be saved from loss on a purchase of uninspected fish by the right given him by the usage to recover of the vendor the price actually paid; the effect of the usage must be to cause dealers to dispense with inspection, and pave the way for those consequences which the law was desigued to avert; and, at the same time, to defeat the desirable objects which the legislature intended to promote. Without attempting to contrast the usage with specific provisions, I think there can be no doubt but that it would introduce a practice altogether at variance with the spirit and plain policy of the inspection laws; and that if it were accepted as binding, it would go far to render those laws nugatory, and to supercede inspection altogether by responsible public officers. [500] Entertaining this opinion, I think that the usage in question was and is invalid, and that it could furnish no basis for a recovery in this case. This conclusion, if correct, makes it unnecessary to consider the other questions in the case. I think the judgment of the court below, should be reversed, with costs. The other Justices concurred.