3 Watts 178 | Pa. | 1834
The opinion of-the Court was delivered by
I cannot perceive any essential difference between (his case and Lecky v. M’Dermott, 8 Serg. & Rawle 500. The principle, that if a wagoner, who is a common carrier, by whom goods are sent to deliver to A, sq]l them to B, the sale vests no property in the purchaser, is thought to be so plain that it is difficult to render it plainer by argument. But it is said that this is an exception, on the ground of a supposed usage of trade on the rivers Ohio and Mississippi. To take a case out of the operation of a general principle, a usage should have every requisite to give it validity. It must be ancient, certain, uniform and reasonable.
And although a usage is often resorted to for explanation of commercial instruments, it never is, nor ought to be, received to contradict a settled rule of commercial law. Frith v. Barker, 2 Johns. Rep. 335. But what is the extent of the usage proved by the witnesses 1 It is, that persons are in the habit of carrying produce, such as corn, flour, &c. up and down the Mississippi and Ohio rivers; that a great amount is so sold; that they load their own boats and deal in the manner mentioned ; that immense quantities are sold at the wharves by persons having charge of them ; that this trade is going on at all seasons when the river is navigable, very often in flat boats descending, and keel boats ascending the river. Captain Stone, who has been employed as a captain of a boat on the Ohio, also says, that the freighter frequently authorizes the captain to sell at the towns along the river, but that when not authorized to sell, they must deliver the goods to the consignee at the place of destination. We catt readily suppose that a trade of this description would be carried on on the margin of the rivers; nor is it peculiar to the rivers in the interior, but also extends to the rivers on the sea board. Still this has never been supposed to form an exception in the case of a common carrier, so as to authorize him to sell goods entrusted to him for an entirely different purpose. Blinn undertook to carry, for hire, the produce in question to the city of Pittsburgh. In violation of his trust he sells the property to the agent of the defendant, under circumstances which the agent acknowledges awakened his suspicions. The case itself shows the danger of relaxing the rule of law. Let it once be ruled that boatmen on our rivers and canals can vest a
Judgment affirmed.