98 Neb. 392 | Neb. | 1915
Lead Opinion
This is an action to recover the net proceeds of a carload of sheep transported from Kearney to South Omaha, March 14, 1911, for sale at the stock-yards. Cyrus A. Black, a stockman of Kearney, was consignor, and he transferred his claim to plaintiff, March 22, 1911. Defendant was the consignee, a.corporation engaged in the live stock commission business at South Omaha. The validity and amount of the claim are admitted, but payment is pleaded as a defense. In 1910 Black bought from defendant two car-loads of sheep, and for the purchase price gave a note secured by a mortgage on the stock purchased. In Febru
When the defendant had sold the sheep for Black and had this money in' hand, the defendant sent the money to the Kearney bank as payment to Black. If this was good payment, the plaintiff of course cannot recover. The evidence was without contradiction that it was then, and had been for a long time, the custom of the commission men of South Omaha, when they made sales for parties in another town, to remit at once to the bank where the party entitled to the money transacted his business. There was no conflict in the evidence upon this point. The defendant sent the account sales to Black, showing that the money had been sent for him to the Kearney bank. Black went immediately to the bank, and was told that the money had been received and put to his credit, and had been applied upon a note which he owed at the bank. Black testified that he objected to the bank applying it on the note, but he does not testify that he made any objection to the sending of the money to the bank as payment by the defendant. Afterwards Black assigned his supposed claim against the defendant to the plaintiff, Miller. In the meantime he had made no demand upon the defendant, nor in any way questioned the right to pay him by sending the money to his bank. Miller paid $50 for the claim of nearly $700, and
Professor Jones says: “A principal who deals in a market must be presumed to deal according to the custom of that market, thus making that custom a part of his contract.” 2 Jones, Law of Evidence (1st ed.) sec. 465. In Encyclopedia of Evidence it is said: “Parties who are engaged in a particular trade or business, or persons accustomed to deal with those engaged in a particular business, may be presumed to have knowledge of the uniform course of such business; and one may be bound thereby, though ignorant, unless the other party be shown to have knowledge of his ignorance thereof.” 3 Ency. of Evi. 953.
It would seem, then, that Black, in dealing with these commission men, was bound to know the custom, and if he did not want the money paid to him by remitting it to this bank he should have so instructed the defendant. He does not contend that he ever raised any such question with the defendant. Again, the defendant had a right to presume that Black knew of this custom, and, unless the defendant knew that he was ignorant of the custom, Black would be
This defendant acted in good faith, and paid Black for this stock as there was reason to suppose he wanted to be paid, and as the law allowed payment to be made. He never questioned the right to do so until he found after-wards that this plaintiff would pay him a small sum for his supposed claim, and the court would be justified under this evidence in instructing the jury to find a verdict, as they did find, for the defendant. It is therefore not necessary to discuss the alleged error of the court in admitting the cashier’s letter in evidence.
The judgment of the district court is
Affirmed.
Dissenting Opinion
dissenting.
One of the assignments of error assails a ruling admitting in evidence a letter containing these words:
“Replying to yours of March 22, relative to O. A. Black credit, will say that we received said credit March 16th, and applied it on Mr. Black’s note by his request.”
The letter was dated March 23, 1911. It was written by R. D. Garrison, cashier of the 'Commercial National Bank of Kearney, to the Packers National Bank of South Omaha. The writer of the letter died before it was offered at the trial. In attempting to justify the ruling of the trial court, it is argued by defendant that the evidence was properly admitted as a part of the res gestee. The statement that the credit was applied on a note at the request of Black was hearsay. The application of the credit was made March 16, 1911. The letter was dated seven days later. In the absence of a statute, the death of a person who made the statement sought to be proved does not of itself make hearsay testimony admissible. Shold v. Van
It is argued by defendant that it was tbe duty of tbe Commercial National Bank of Kearney in tbe regular course of business to acknowledge Black’s credit, and that tbe acknowledgment is admissible as part of tbe res gestæ. Jones, Evidence (2d ed.) sec. 319, is cited on this point, but tbe text answers tbe argument as follows: “The entries to be thus admissible should be contemporaneous with tbe act to be proved; that is, within so short a time thereafter as reasonably to be considered a part of tbe transaction, in tbe due discharge of duty and by persons having knowledge of tbe facts.”
I dissent from tbe proposition that, with this letter excluded, tbe evidence would have justified a peremptory instruction in favor of defendant. Tbe commission company, after tbe sale of tbe sheep, owed tbe former owner, Cyrus A. Black, tbe net proceeds. Its duty and tbe law itself required payment to bim. Payment is not shown by undisputed evidence as a matter of law. As between tbe parties defendant acted as a fiduciary. Its principal was not a member of tbe firm of Black Brothers. It is not shown, as a matter of law, that defendant bad knowledge of tbe customs of that partnership. Tbe manner of dealing with consignments at tbe stock-yards did not necessarily extend to transmitting tbe net. proceeds of a sale to an individual shipper not shown to have bad actual knowledge of existing customs or to have received a former payment in accordance therewith.
According to Judge McCormick, the principle controlling the vital question in this case is as follows: “Whether a trade custom or usage is established by the evidence in a case, and, if so, whether it was known to a party contracting, or was so general and well established that he must be presumed to have known of and contracted with reference to it, are questions for the jury.” New Roads Oilmill & Mfg. Co. v. Kline, Wilson & Co., 154 Fed. 296.
To the same effect: Bacon Fruit Co. v. Blessing, 122 Ga. 369; Swern v. Churchill, 155 Ill. App. 505; Union Stock Yards Co. v. Westcott, 47 Neb. 300; Milwaukee & Wyoming Investment Co. v. Johnston, 35 Neb. 554; Bixby v. Bruce, 69 Neb. 78. In the last case cited it was said: “One not shown to have knowledge of a trade usage confined to a particular business, which is not shown to be of such a general and notorious character that he must have been presumed to have contracted with reference to it, is not bound by such usage.”
The opinion of the majority carries custom too far, allows a commission, merchant to escape Avith too little responsibility, and invades the province of the jury. In the view most favorable to defendant, the defense of payment was an issue of fact for the determination of the jury. In the letter erroneously admitted, the hearsay statement of the cashier related to a Adtal issue. It may have been the controlling factor resulting in the verdict for defendant. The error was prejudicial to plaintiff, and he is entitled to a new trial. The judgment should he reversed.
