| Ill. | Sep 15, 1877
delivered the opinion of the Court:
The first instruction given at the request of appellee, ought not to have been given without qualification. It seems to ignore the proof tending to show that appellant professed to act, in making the sale, as a mere dealer in produce, and not as a manufacturer, and professed to be selling for other parties, and not for itself, and it ignores the proof tending to show that it was the rule, universally recognized on .the board of trade, that the buyer of produce, taking it without inspection, takes the same at his own risk. It is insisted by appellee, that other proofs in the case disprove these propositions. There is, undoubtedly, evidence tending very strongly to contradict both these positions, and we are not prepared to say that the weight of the evidence does not in our judgment show that appellee had a right to regard appellant as a mere manufacturer, making sale of its own goods, but that did not authorize the court to take that question of fact from the jury. The general rule of law is correctly stated in that instruction, but there being proof in the case tending to show that, on the board of trade, universal custom has established another and different rule, the general rule should not have been laid down as the absolute law of the case, except upon proper hypothesis.
The second instruction given is faulty in the same respect.
The sixth instruction given seems to submit to the jury the question whether the alleged rule, custom or usage of the board of trade is, or is not, one “ intended to relieve a person from the obligations of common honesty and fair dealing,” or is, or is not, “ in contravention of public policy.” Whether a given custom does or does not exist,—is or is not universally recognized in the locality in question,—are matters of fact for a jury, but whether a given custom be valid or invalid, is always a question for the court.
We also think the court erred in refusing the sixth instruction asked by appellant. A party visiting the board of trade frequently on a visitor’s ticket, and who, when there, undertakes to exercise the rights of a member of the board, and permits another to deal with him as such, is estopped to deny that he is a member, and thereby relieve himself from the responsibilities which would rest on members of the board dealing in the same manner. Appellee can not be permitted to escape the responsibilities of the role he undertook to play. In considering his rights in this case, he should be regarded in all respect as though he were at the time a member of the board.
The real question in the case is, ought he to recover, assuming him to have been (what by his conduct he professed to be) a member of the board. The alleged rule of the board of trade does not seem to be an unreasonable rule, if confined to a certain class of cases. Where two parties are each speculating in produce, buying with a view of selling again at a profit, or selling to realize profit, or avoid an apprehended loss, where the vendor does not seem to have better means of knowledge as to the condition or quality of the article sold than the vendee has, it seems very reasonable that if the vendee (having the means of inspection) chooses to accept the goods without inspection, his mouth should forever after be closed. But where the vendor apparently occupies a position where he is reasonably supposed to know the condition and quality of the goods sold, and where the vendee might reasonably rely upon such supposition, it would seem a very unreasonable rule that he shall not complain where he has so relied in vain.
It would seem hardly probable that the charter or articles of incorporation of appellant (a corporation bearing the name this does) are such as to authorize it to enter the market as a commission merchant, although it may be so. The production of the charter or articles would settle that question. It is not necessary for us to decide at present what on this question is the presumption, in the absence of direct proof. It is plain, however, that a party dealing with a corporation, engaged in business as a manufacturer, and in selling its manufactured goods, and whose name gives no suggestion to the contrary, has a right to assume, when it offers such goods for sale with nothing to suggest the contrary, that it proposes to sell as a manufacturer, and not as an ordinary dealer in the market, and unless the proof shows satisfactorily that plain notice of its acting in a different character was brought home to the party dealing with such corporation, it can not insist on being treated as other than a manufacturer, and in such case it would seem the supposed rule of the board of trade would have no application.
It is also insisted, that the court erred in refusing the 1st, 2d, 3d, 4th and 5th instructions asked by counsel for appellant.
These instructions, as drawn, are too sweeping. They each ignore the proof tending to show that the appellee had a right to assume that appellant was selling as a manufacturer, where there is some proof to the contrary.
For the errors indicated the judgment must' be reversed, and the cause remanded for a new trial.
Judgment reversed.