Barnard & Bunker v. Houser

Mr. Justice Burnett delivered the opinion of the court. 1. In proving a custom it is necessary to show not only that it was universal in the locality where it obtains, but also that it was known to the parties contracting in reference thereto, or that it was of such general acceptance that knowledge of the same would be necessarily implied. There is no testimony in the record showing that the custom was universal. On the contrary, every witness speaking on the subject says that by far the greater part of the grain handled at the port of Portland was marketed without any certificate whatever, and the testimony further fails to show that the defendant knew of the alleged custom. The utmost that is shown by the testimony concerning plaintiff’s knowledge is that on two occasions a certificate of the quality of the grain sold was furnished. 2. Custom is used in evidence only as a means of interpretation of a contract, and not for the purpose of importing into it new terms: Holmes v. Whitaker, 23 Or. 319 (31 Pac. 705); Savage v. Salem Mills Co., 48 Or. 1 (85 Pac. 69, 10 Ann. Cas. 1065). 3. The contract pleaded was merely an executory one for the sale of the commodity named. It denotes that the* tender of payment must be made contemporaneously with the delivery of the goods. Payment and delivery in such contracts are dependent covenants. 4. It does not imply that the seller shall do the further act of furnishing a certificate of the quality of the goods. Having alleged that the plaintiff agreed to buy and the defendant agreed to sell the grain in question, it would be a contradiction of that express contract if custom could be relied upon to dispute its plain terms of payment and say that, although one has agreed to buy and the other to sell, yet custom will eliminate the feature of mutual dependent covenants and make them successive. [244] 5. Still further, the allegation of the complaint, reiterated as a finding of fact, is “that defendant has failed, neglected, and refused to deliver said barley to plaintiff in accordance with the terms of said contract.” This does, not state facts, but merely a conclusion. If the plaintiff would recover, he should allege facts showing wherein the delivery did not comply with the terms of the contract, so that the court could judge whether compliance had been accomplished or not. In this sense the findings of fact do not justify the judgment. For these reasons, the judgment is reversed and the cause remanded for further proceedings. Reversed. Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.