44 N.Y. 495 | NY | 1871
Lead Opinion
It has been established, by the verdict of the jury in this case, upon conflicting evidence, under instructions from the court, to which there was not any exception taken, that a contract was made for the sale by the plaintiffs, and the purchase by the defendants, of the whole cargo of hay, at a specified price per pound (the price for the shipping hay being greater than for the clover); that it was delivered at the place agreed upon, and taken under the charge and control of the defendants; that a part of it was taken into their actual possession; and that nothing was to be done by the plaintiffs to ascertain its quantity, quality, or identity, or to put it in the condition required by the terms of the contract.
The General Term refused to set aside that verdict; and it *498 appears, by the case, that there was sufficient evidence to sustain it.
The jury were instructed that, if the facts above stated were found by them, then the title to the whole of the cargo passed, and the plaintiffs were entitled to recover. There was no exception to this, or any other, part of that charge; but several exceptions were taken to the refusal of the court to charge as requested, on certain propositions submitted to him for that purpose, and to the rejection of certain testimony offered on behalf of the defendants.
It becomes necessary, therefore, to refer such of them as are now relied on, as grounds of reversal. The cargo was, at the time of the negotiation for its sale, on board of a barge lying in the North river, and the defendants on the trial claimed that it was a part of the contract that the plaintiffs should transfer and put it on board of a certain schooner pointed out and designated by the defendants; that it was to be inspected, and that the plaintiffs reserved the right to sell a part of the clover hay; that they were only to take the balance. The plaintiffs, on the other hand, claimed that all they were required to do, in reference to the delivery was to move or "haul" the barge to and alongside of the schooner; that the defendants were themselves then and there to unload the cargo; that the plaintiffs were to do nothing further toward its delivery; that there was an absolute sale of the whole cargo, without any reservation of any part thereof, and without any agreement for its inspection. There was conflicting evidence on those questions.
At the close of the testimony, and before the charge, the defendants' counsel requested the court to charge the jury upon nine different written propositions, among which were the following:
1st. An action for goods sold and delivered cannot be sustained where there has not been an actual delivery.
2d. There was in this case no delivery of any of the hay purchased, except that which was placed in the schooner. *499
5th. The rule of law is, that where anything remains to be done to ascertain the quantity or quality, the title does not pass.
9th. That the plaintiffs can only recover for the hay actually delivered on board the schooner.
After the charge was given, the counsel again called the attention of the judge to those propositions, and asked him to charge them in the affirmative or negative. The judge thereupon stated that he could not charge the first, second, third or fourth requests, except as already charged; that the fifth was true, if anything remained to be done by the seller, but that he could not charge it in the terms asked, because it was too general; and made a further charge in reference to the eighth, substantially as asked, and said nothing in relation to the rest. The counsel for the defendants specifically excepted to the refusal of the court to charge as requested, as to each of the requests so submitted to the court, and to each of said refusals separately.
The exceptions to the third, fourth, six, seventh and eighth requests or propositions are not relied on in the appellants' points. I have not deemed it necessary to set them forth, assuming that they are abandoned. The others will be briefly considered. The first, as an abstract proposition of law, is too broad. An actual delivery of the whole of the property sold is not necessary. Assuming a delivery to be a part of the contract, an actual acceptance of a part in the name of the whole would be sufficient. Nor is such delivery requisite where the sale is complete, and there is a manifest intention to pass the title without it. (See Terry v. Wheeler,
In reference to the other exceptions, it is sufficient, without referring to them specifically, to say that they have been considered, and none of them are well taken. It then only remains to be considered whether the court erred in excluding the defendants' offer of evidence to show that there is a general, well-known custom in the port of New York, that hay should be inspected before delivery.
Each of the parties claimed that there was a special contract, and the evidence of the defendants tended to show that it was a part of the contract that the hay should be inspected, and the court charged that if it was, then the title did not pass.
It is evident, therefore, that the defendants, according to the testimony introduced by themselves, did not deal in reference to any custom, and there being a special contract shown, no local custom can change its terms, or vary the rights and obligations of the parties under it. But if it was admissible in any case, it could not affect the plaintiffs without proof that they had knowledge or notice of it, and the offer did not, in express terms or by implication, or its fair construction, include such proof. The evidence was, therefore, properly rejected.
The views above expressed lead to the conclusion that there is no ground for the reversal of the judgment. It must, therefore, be affirmed, with costs.
Concurrence Opinion
The plaintiffs, on the 9th day of December, 1863, had, in the city of New York, a barge load of hay, consisting of 1,197 bales of good and shipping hay and thirty bales of black clover hay, and they met defendant Wheeler, on one of the piers of the North river, near to and in plain sight of the barge. Some of the bales were in the hold of the vessel and the rest on deck, and the weight of each bale was marked upon it. One of the plaintiffs then had in his possession, but did not show to Wheeler, the tallies made by himself, showing *501 the number of the bales and the weight of each bale. They then entered into negotiation with Wheeler for the sale of all the hay to him, stating to him that there were about 1,200 bales. He offered them $1.30 per hundred for all the good and shipping hay, and $1.00 per hundred for the clover hay, and offered to take all the hay at the weights marked upon the bales, deducting five pounds from each bale. The plaintiffs accepted the offer and said it was a bargain, and asked Wheeler where he would have the hay put, and he told them to haul the barge up alongside of a schooner which was near by, and he would send a man to take charge of it, and he was going to put part of it upon the schooner. The plaintiffs had chartered the barge with her crew for the sum of $200, to deliver this cargo of hay in New York. The plaintiffs then caused the barge to be placed aside of the schooner, as directed, and the defendants sent a man to take charge of and superintend the delivery of the hay from the barge to the schooner. The crew of the barge commenced unloading the hay from the barge into the schooner, under the supervision of the defendants' agent, and after one hundred and thirty-six bales of hay had been thus delivered, a fire broke out near by and destroyed both vessels and all the hay.
In this brief statement I have given the facts as the evidence on the part of the plaintiffs tended to show them, as the jury by their verdict found for the plaintiffs. The defendants claim that they should pay for only the 136 bales, and the plaintiffs claim that they should pay for all the hay; and the main question to be determined by us is whether what took place between the parties in reference to the hay was sufficient to vest the title thereto in the defendants. It is frequently difficult to determine whether the facts surrounding a contract of sale are sufficient to change the title to the property sold. It sometimes depends upon the intention of the parties, and the parties may provide in their contract that the title shall pass, when the facts would not, in the absence of such a stipulation, show a change. (Kimberly v. Patchin,
I therefore conclude that, upon the evidence given in this case, the title to the hay was in the defendants at the time of the fire; and this brings me to the only other question in the case. On the trial the defendants offered to show that there was a well known and uniform custom, in the port of New York, that hay should be inspected before delivery. This evidence was excluded, and the defendants claim that in this there was error. The decisions of the courts, as to the proof of usage for the purpose of explaining or controlling commercial and other contracts, are somewhat conflicting and irreconcilable. As to the admissibility of usages in general, the later cases show that the dislike to them, which seems always to have characterized the ablest judges in this country, and particularly in this State, is now becoming general; and it is now quite well settled that usage or custom cannot be proved *504
to contravene a rule of law, or to alter or contradict the express or implied terms of a contract, or to make the legal rights or liabilities of the parties to a contract other than they are by the common law. In Sewall v. Gibbs (1 Hall,
602), OAKLEY, J., says: "That all contracts made in the ordinary course of business, without particular stipulations, expressed or implied, are presumed to be made in reference to any existing usage or custom relating to such trade, and that it is always competent for a party to resort to such usage, not to vary, but to ascertain and fix the terms of the contract." In Hinton v.Locke (5 Hill, 437), BRONSON, J., says: "Usage can never be set up in contravention of the contract. But when there is nothing in the agreement to exclude the inference, the parties are always presumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contract relates; and the usage is admissible for the purpose of ascertaining with greater certainty what was intended by the parties." (See also Wheeler v. Newbould,
Here there was no uncertainty as to the terms of the contract, and the parties had provided what the plaintiffs should do for a delivery of the hay, and all the contract required them to do was to place the barge with the hay beside the schooner. Hence the custom offered to be proved would have contradicted or varied the terms of the contract, and was therefore inadmissible. But there is another reason why it was properly excluded. There was no offer to show that the custom required the plaintiffs to have the hay inspected, or that it should be inspected before the title could pass, and hence the evidence offered was wholly immaterial. If it had been received, it would still have left a valid contract of sale, in reference to which the plaintiffs had done all they were bound to do, and the proof would still have shown that the title to the hay had passed the defendants. If upon any inspection which the defendants had seen fit to make, they had ascertained *505 that any of the bales did not come up to the requirements of the contract, these they could have rejected and returned to the plaintiffs, retaining, as they would be obliged to, all that answered to the contract.
I am therefore of the opionion that the judgment should be affirmed with costs.
All concur for affirmance.
Judgment affirmed, with costs.