2 Hilt. 472 | New York Court of Common Pleas | 1859
This action was brought to recover
The custom proved and admitted did not contravene any established rule of law, on any given state of facts, but related simply to the mode of ascertaining a fact upon which a rule of law migBt be declared. The contract between the parties, enlarged or fully expressed by reference to the custom mentioned, would be, “ I sell you a number of barrels of liquor, which I say contain a certain number of gallons, stated on this bill, but the exact quantity may be ascertained by measuring ten out of every hundred of the barrels, or in like proportion for any number, and making a general estimate founded upon such measurement.” This mode of ascertaining the quantity is reasonable and convenient. It is equally open to both parties, and must result often in a saving of labor, time and expense. It does not contravene any policy or principle of the law, and is, in fact, an agreement that as to quantity both seller and buyer may, by a system of average, determine the number of gallons contained in a number of barrels, without gauging or measuring each one. As a commercial usage, it seems to be one of great utility, and
Judgment affirmed.