Opinion
Spring Sessions, 1848.
THIS was an appeal from the judgment of a justice of the peace in an action of assumpsit, for grain sold and delivered.
The grain was delivered on a market, as plaintiff contended, subject to his power of pricing it. The defendant contended, that by the course of trade it priced itself, after a certain time. This was the point of dispute.
A witness was asked as to the general custom or usage of grain buyers, in receiving grain on a market. This was objected to, if confined to the usage of grain dealers at Cantwell's Bridge, the place where the grain was delivered.
Mr. Rogers. — A general custom may be proved, or may be even judicially noticed; a special custom or usage of particular dealers must be set out in the pleadings. (1 Harr. Rep. 522.)
Mr. Rodney. — The case referred to was an attempt to prove an usage connected with the land, which must be general, and from time out of mind, to have validity. But here is a question of usage of trade, entering into the price of grain, a usage that appertains to a particular place, and must be different at different places, having reference to the convenience of market and the facilities of storage. It is a usage beneficial to the public, and for the advantage of the farmer.
Mr. Rogers. — Custom and usage are the same. They must be uniform and ancient, otherwise there cannot be notice of them. If they can be made by one or two individuals, and changed from time to time, and are to bind the public without notice, it would be very dangerous. The danger is presented in this case, where such a usage of two or three merchants is brought forward to control a contract for the sale of grain.
By the Court: — There seems to be this difference between a custom general or particular, and a usage of trade. The one must be ancient, even from time immemorial; it is sufficient for the other if it be established, known, certain, uniform, reasonable and legal. For the purpose of ascertaining the otherwise uncertain meaning of the parties, where there is no special contract, such a usage even of a particular person may be proved, if it be generally known. (2 Greenl. Ev. 242, § 251.) If such a usuage cannot be proved in this case, as fixing the price of this grain, it would seem to follow that the price of grain at the time of delivery would govern, and not the price when demanded.
Evidence admitted.
The witness proved that the usage among grain dealers at Cantwell's Bridge was, when farmers send grain without any special contract it is received on a market for sixty days, and the market price at the end of that time governs, unless the seller prices it in the mean time. He did not know whether such was the usage of Whitby Zelefro.