Hughes v. Stanley

Beck, J. This cause was submitted by counsel at the June term, 1874. From an oversight of the clerk it was not entered upon our submission dockets and therefore did not come into the hands of the court, and of course no decision therein could be made. It did not reach us until the present term, when it was entered upon our dockets and submitted for decision of the court. I. The first point of the case we shall consider, involves the correctness of the ruling of • the court upon plaintiff’s demurrer to defendant’s answer. i. contbact: of^customf The first count of the petition sets up a verbal contract of sale of the wheat, the second-the delivei’y of the wheat to defendant, under a usage, by the verbal agreement of the parties. It is alleged that, under this usage, the defendant received and so appropriated the wheat that the law implies a contract of sale. The second count of the answer sets up a usage or custom which was known to the parties, under which the wheat was delivered, to the effect that it should be stored with other grain in common bins and that the same number of bushels of other grain of the same grade should be regarded as the property of plaintiff and that defendant was not to be liable for its loss by fire. The pleadings show a usage and custom of trade, known to plaintiff, with reference to which the contract was made. It is, surely, competent for parties so to contract. They may make their contracts to accord with customs or usages and with reference thereto. This is an elementary principle of the law. The [626] second count of plaintiff’s petition is based upon a contract made with reference to a custom. The answer alleges no terms or conditions of the contract growing out of or dependent upon the custom recited, which the parties were not entirely competent to adopt. The.demurrer was properly overruled. II. It is insisted that certain evidence was erroneously admitted. It tended to support the custom or usage pleaded by defendant in his answer, and his allegation that the contract under which the grain was received was made with reference thereto. It was properly admitted under the issues found upon the second count of defendant’s answer. III. The instructions, in our opinion, fairly presented to the jury the issues raised by the pleadings and the rules necessary to reach a correct determination thereof. The issues of fact, as found, involved the terms of the contract made by the parties whether they were of the character claimed by plaintiff or as claimed.by defendant. The existence and effect of the usage or custom under which the contract was made were involved in this issue. If they were found as alleged by plaintiff, he was entitled to recover; if as set up in the answer, defendant should recover. It may be' that the issues could have been more clearly and directly presented to the jury than was done in the instructions given, but we think no ground exists foi; holding them prejudicially defective. IY. It is insisted by plaintiff that the verdict is not supported by the evidence. We are of a different opinion. The jury, we think, were justified in finding the contract to be of the character alleged in defendant’s answer and the facts to be such as are therein pleaded. 2. —:-. Y. The plaintiff relies upon Johnston v. Brown, 37 Iowa, 200. That case is clearly distinguishable from the one before us. In this case the terms of the contract, as found by the jury, are to the effect that the grain could be mixed with other grain in store, and the proper number of bushels in the warehouse should be regarded as plaintiff’s property and be held by defendant free of any risk. No such facts or contract were involved in the case cited. [627] The receipt or warehouse ticket contains matters upon which the position could well he taken that the delivery of the grain to defendant amounted to a sale, and that such ticket amounts to a contract to that effect. But plaintiff declares on no such contract, or at least does not declare upon the ticket as embodying that contract, but avers that it was oral. He cannot, in this cause, rely upon the ticket as presenting the contract under which he claims to recover. 3 practice in courtMnowon wiiofkexcepturns. VI. Defendant, since the cause has been pending in this court, filed a motion to strike the bill of exceptions, and especially the evidence embodied in it, on the g1'011^ that the evidence is improperly incorporated therein. The objection does not appear upon the face of the record, but is shown by affidavits. The record cannot be contradicted in this way. If the facts be as alleged by defendant, he should have had the record amended upon suggestion of diminution, or if the record as it appears in the court below requires change to make it correspond with the facts, proper steps ■ should have been there taken to amend it. The motion is overruled. Aebtrmed.