Miller v. Great Western Commission Co.

Sedgwick, J. This is an action to recover the net proceeds of a carload of sheep transported from Kearney to South Omaha, March 14, 1911, for sale at the stock-yards. Cyrus A. Black, a stockman of Kearney, was consignor, and he transferred his claim to plaintiff, March 22, 1911. Defendant was the consignee, a.corporation engaged in the live stock commission business at South Omaha. The validity and amount of the claim are admitted, but payment is pleaded as a defense. In 1910 Black bought from defendant two car-loads of sheep, and for the purchase price gave a note secured by a mortgage on the stock purchased. In Febru [393] ary, 1911, lie shipped a car-load of sheep to defendant for sale, and the net proceeds were applied on his note. Another car was consigned to defendant March 14, 1911, and with the proceeds from the sale of the sheep the note was paid in full, leaving a credit of $620.94 in Black’s favor. To recover this sum the suit was brought. In the answer it is alleged, among other things, that defendant on March 14, 1911, through the Packers National Bank of South Omaha, remitted $620.94 to the Commercial National Bank of Kearney for the credit of Black, and that at his request it was applied upon a debt due from him to the Commercial National Bank of Kearney. Payment of the amount due Black was denied by plaintiff in a reply to the answer. There was a general verdict in favor of defendant, and from a judgment thereon plaintiff has appealed. When the defendant had sold the sheep for Black and had this money in' hand, the defendant sent the money to the Kearney bank as payment to Black. If this was good payment, the plaintiff of course cannot recover. The evidence was without contradiction that it was then, and had been for a long time, the custom of the commission men of South Omaha, when they made sales for parties in another town, to remit at once to the bank where the party entitled to the money transacted his business. There was no conflict in the evidence upon this point. The defendant sent the account sales to Black, showing that the money had been sent for him to the Kearney bank. Black went immediately to the bank, and was told that the money had been received and put to his credit, and had been applied upon a note which he owed at the bank. Black testified that he objected to the bank applying it on the note, but he does not testify that he made any objection to the sending of the money to the bank as payment by the defendant. Afterwards Black assigned his supposed claim against the defendant to the plaintiff, Miller. In the meantime he had made no demand upon the defendant, nor in any way questioned the right to pay him by sending the money to his bank. Miller paid $50 for the claim of nearly $700, and [394] then Miller brought this action against the defendant. Black testified in regard to the transaction. He admitted that there were three Black brothers, and that there was a firm entitled Black Brothers that had been doing business of this kind some years before and had shipped to these defendants. He testified that the other two brothers composed the firm, but admitted that he had worked with them, and also it appears in the evidence that the defendant supposed they were dealing with Black Brothers, as they had formerly dealt, when they sold these sheep to Black, and when they again sold them for him on the South Omaha market, and, although Black must have known of these transactions, he did not deny that he knew that the defendant supposed the dealing was with Black Brothers, as it had been before that time. Black did not deny that he knew of the custom of making remittances in this way. Under the circumstances, when the plaintiff knew that such a custom existed and used Black as a, witness, if Black did not know of this custom the plaintiff should have proved that fact. Professor Jones says: “A principal who deals in a market must be presumed to deal according to the custom of that market, thus making that custom a part of his contract.” 2 Jones, Law of Evidence (1st ed.) sec. 465. In Encyclopedia of Evidence it is said: “Parties who are engaged in a particular trade or business, or persons accustomed to deal with those engaged in a particular business, may be presumed to have knowledge of the uniform course of such business; and one may be bound thereby, though ignorant, unless the other party be shown to have knowledge of his ignorance thereof.” 3 Ency. of Evi. 953. It would seem, then, that Black, in dealing with these commission men, was bound to know the custom, and if he did not want the money paid to him by remitting it to this bank he should have so instructed the defendant. He does not contend that he ever raised any such question with the defendant. Again, the defendant had a right to presume that Black knew of this custom, and, unless the defendant knew that he was ignorant of the custom, Black would be [395] bound by it, if tbe defendant performed tbe contract in accordance with the custom before they knew that Black was ignorant of it. “This presumption may generally be rebutted, but not where the person, without knowing the other to be ignorant of the usage, has performed the contract in concordance therewith.” 3 Ency. of Evi. 954. This defendant acted in good faith, and paid Black for this stock as there was reason to suppose he wanted to be paid, and as the law allowed payment to be made. He never questioned the right to do so until he found after-wards that this plaintiff would pay him a small sum for his supposed claim, and the court would be justified under this evidence in instructing the jury to find a verdict, as they did find, for the defendant. It is therefore not necessary to discuss the alleged error of the court in admitting the cashier’s letter in evidence. The judgment of the district court is Affirmed. Hamer, J., not sitting.