George v. Joy

| Superior Court of New Hampshire | Dec 15, 1849

Gilchrist, C. J.

The usage at a certain place, or between certain parties, is evidence tending to show that the parties made their contract with reference to the usage. The words, “ terms cash,” on the bill, do not necessarily and conclusively import that the goods are not delivered until the money is paid. They may mean that the money is to be paid in a month, or in a longer or shorter time. They necessarily import nothing more than that the articles purchased are to be paid for in money, and are not to be exchanged for other articles. It is not inconsistent with any inference we can make from them, to admit evidence to prove that they were sold on credit, but prima facie they import that there was no credit, and still it may be shown what meaning the parties attached to them.

To prove this, the usage, where bills were paid in six months, to make a discount, was properly received. This usage has some tendency to prove the intention of the parties, and may properly be considered by the jury, in ascertaining what contract the parties made.

The words “ consigned 6 mo,” of themselves, convey no distinct idea to a stranger to the dealings between the parties. The plaintiff may show, by competent testimony, that the goods were consigned, if they were returned in six months, and if not so returned, that they were to be regarded as sold.

We have held, in the case of Farnsworth v. Chase, [ante, p. 534,] that when a usage is so widely practiced on, and so generally known, that the parties must reasonably be presumed to have contracted with reference to it, they will be bound by it. Evidence of such usage does not contradict nor vary the contract. Its only tendency is to explain it. We held, also, that where the parties had always dealt with each other according to a certain mode, that same mode must be held to be adopted by them, unless . something to the contrary should be shown.

We see no objection to the ruling of the court, permitting the witness to refresh his recollection by referring to a copy of the deposition he had given. The object of the defendant undoubtedly was to test the recollection of the witness. But, in justice to the witness, all reasonable aid should be given him for this purpose. He was asked to state what he had testified before, and if his recollection is merely refreshed, by examining the deposition, and if, after being thus refreshed, he remembers the facts therein stated, independent of the deposition, the court, in permitting this, merely follow a practice sanctioned by usage and authority.

Judgment on the verdict.