Farnsworth v. Chase

Gilchrist, C. J. Upon proof of the delivery of the goods, the plaintiff would be entitled to recover in this case, unless the evidence offered by the defendant be sufficient to take the case out of the ordinary principles of law. ■ He alleges that the usage among the dry goods jobbers is to give a credit of six months, where the goods are not paid for on delivery. The first question is, what evidence is sufficient to prove the existence of such an usage 1 And what is the effect of the usage ? A bill was drawn in the East Indies, payable to Campbell, or order, and by him indorsed to Ogilby, who indorsed it to the plaintiff. The defendant contended that the omission of the words or order, was equivalent to restrictive words, limiting the payment, and that they must have been originally inserted by the indorser. The plaintiff contended that a bill was in its nature assignable. The defendant offered evidence that, by the custom of merchants, the acceptor was not liable upon such an indorsement. Itwas held that the evidence was inadmissible,because the law was already settled for the plaintiff; that the custom of merchants was part of the common law of England, and that twro cases (referred to in the opinion) settled that there was no such custom of merchants as the defendants allege. Edie v. East India Co. 2 Burrows 1216. But it was not held that the parties might not make the indorsement restrictive by special agreement, or by the customary course [540] of some particular business, make an exception in their own case, leaving the general law to take its course. Cowen, J. Gibson v. Culver, 17 Wend. 309. In accordance with what was supposed to be the law in Edie v. East India Co., it was held in Frith v. Barker, 2 Johns. 335, that usage could not be received to contradict a settled rule of commercial law. So, also, is the ease of Homer v. Dorr, 10 Mass. Rep. 26, although a different doctrine was held in Jones v. Fales, 4 Mass. Rep. 245, and in the City Bank v. Cutter, 3 Pick. 414, and Mr. Rand thinks the decision of Homer v. Dorr, is “ unaccountable.” Eager v. Atlas Ins. Co., 14 Pick. 145. In' Rushforth v. Hadfield, 6 East 519, the question was as to the existence of a custom that carriers should have a lien on goods for their general balance. Six witnesses testified to particular instances where the custom had been applied. It was held that if a usage were so general as to furnish an inference that the party who dealt with a carrier had knowledge of it, and to warrant a conclusion that he contracted with the carrier on that ground, it would be sufficient, although it gave individuals a special privilege against the general body of creditors, in case of bankruptcy. Upon another trial of the same case, 7 East 224, it was held that such a lien might be implied from a usage of trade so generalthat the jury must reasonably presume that the parties knew it, and adapted it to their dealings. In Richmond v. Smith, 8 B. & C. 9, the question arose as to the effect of a custom of an innkeeper, to put luggage into his guests’ rooms upon his liability for it. It was held that if the innkeeper did not mean to be liable for goods thus placed, he should have said so. Cowen, J., says, in Gibson v. Culver, 17 Wend. 311, that if the guest had come to a full knowledge of the landlord’s practice, either by its general notoriety, or in any other way, it would be equivalent to notice. In this case, it was held that a custom of such age, uniformity and notoriety, that a jury would feel clear in saying it was known to the plaintiff, would be sufficient. [541] Courts take no notice of these local and particular usages. They are to be proved, like other facts, and necessarily by parol evidence. It must appear to be so well settled and of so long continuance as to raise a fair presumption that it was known, to both contracting parties, and that the contract was made in reference to it. Eager v. Atlas Ins. Co. 14 Pick. 141. The question is, whether the parties contracted in reference to the usage, and, in this view, the fact of its being well established so as to be generally known to persons engaged in this course of business, is of importance, but not its antiquity. Thompson v. Hamilton, 12 Pick. 425. So, also, is Williams, v. Gilman, 3 Greenl. 276, in which case there was some contradictory evidence as to whether a certain usage existed at Hallowed. So, also, Heald v. Cooper, 8 Greenl. 2. In action of assumpsit for goods sold, the defence was, that they were sold on a credit which had not expired when the action was brought. But it was held that the usage of an individual, known to persons with whom he deals, binds them. Loring v. Gurney, 5 Pick. 15. To prove a usage to tranship goods from one packet to another, it is not enough that a few instances can be produced where it has been done without objection. The course of the trade must be uniform and general, and should be so well settled that persons engaged in the trade must be considered as contracting with reference to the usage. Trott v. Wood, 1 Gall. 443. In Van Ness v. Packard, 2 Peters, 137, evidence was offered both to prove and disprove the existence of a usage that, in Washington, a tenant may remove buildings erected by him on the premises, if done before the expiration of the term. It was held that the evidence was competent; that whether it was such as ought to have satisfied the minds of the jury on the matter of fact, was solely for their consideration, open, indeed, to such commentary and observation as [542] the court might think proper to make. “ We cannot say that they were not at liberty, by the principles of law, to infer from the evidence the existence of the usage. The evidence might be somewhat loose and indeterminate, and so be urged with more or less effect upon their judgment; but, in a legal sense, it was within their own province to weigh it as proof or as usage.” Renner v. Bank of Columbia, 9 Wheat. 581; Furnep v. Howe, 8 Wend. 247. In the case of Wood v. Hickok, 2 Wend. 504, it was held that evidence that it is the uniform practice of grocers to charge interest on goods sold after ninety days, does not amount to proof of the usage of a particular trade, of which all dealers in that line are bound to take notice, and are presumed to be informed. But if knowledge were brought home to the defendants of the usage of the plaintiffs, Semble they would be bound by it. The usage must be proved as a fact, and like any other fact. It is not one of those matters which may be proved by hearsay. Reputation is not evidence of it. It is a part of the contract, which the parties made at the time, or it is nothing. If it be proved to be so generally known that the parties must fairly be presumed to have contracted in reference to it, it will bind them. Contradictory evidence may exist in relation to it, and the jury must weigh all the evidence, and come to a conclusion upon it. Such are the results which the authorities warrant. The defendant’s evidence tended to prove that by the usage goods, not bought for cash, are bought on a credit of six months, where the bills are not marked. These bills were not marked. Some witnesses stated that the usual time of ‘credit was six months, where bills were not marked" Others, that they always bought on six months, and their bills were not marked. The plaintiff offered evidence that there was no such usage. This evidence the jury are to weigh. The instruction of the court as to the usage was suffi [543] ciently favorable to the plaintiff. It was that the usage must “ be uniform, known and established.” If it were so generally known that the parties may be considered as having contracted in reference to it, that is enough. As to the admissibility of the deposition, it was taken at Manchester, where the witness resided, to be used at Amherst, a distance of more than ten miles. The trial was had at Manchester, at the October term of the court of common pleas. The practice has been, in such cases, to admit the deposition, as it was properly taken to be used at Amherst. The mere fact that the term where the trial was actually had, was held at Manchester, has not been held sufficient to exclude the deposition, unless the witnesses, as in other cases, were produced in court, as is often done by the party who objects to a deposition. The place of trial, at the time the deposition was taken, was, by law, at Amherst, and the fact that the case was not tried there, but was continued to the next term at Manchester, is not sufficient to render the deposition incompetent. Judgment on the verdict.