On thе 1st day of October, 1875, the agent of the plaintiffs, at Toledo, shipped on board the propeller “Jay Gould,” which was owned by defendant, a common carrier, consigned to the plaintiffs at Buffalo, seven thousand bushels of wet wheat. There was also shipped upon the propeller and consigned to other parties at Buffalo, uрwards of twenty thousand bushels of wheat. The propeller went to Buffalo and discharged all the wheat into the Niagara elevator, and refused to discharge plaintiffs’ wheat, upon their request, "into the Richmond ele *243 vator. After plaintiffs’ wheat was so discharged at the Niagara elevator, in order to obtain the same so as .to place it in the Richmond elevator, they were required by the defendant’s agent to pay the freight, to-wit, $183.66, and also incurred expense to the amount of $80.75 in removing the wheat to the Richmond elevator. The plaintiffs claim 'that the defendant did not earn freight by delivering the wheat into the Niagara elevator, but.that they were obliged to pay the freight under duress, in order to procure the wheat, and this action was brought to recover the amount paid for freight, as well as the expense of the removal of the wheat. . .
The bill of lading under which plaintiffs’ wheat was consigned provided that the grain should be delivered “ unto the consignees” at Buffalo. It was undisputed upon the trial and upon the argument befоre us that the only way of delivering wheat at the port of Buffalo was into' elevators; that the defendant had no elevators, and that there was no particular elevator at which it was accustomed to deliver freight; that the carriers did not have the right at the port of Buffalo to select the elevator into which the grain carried by thеm should be discharged, and that when the whole cargo of grain was consigned to one consignee he had the right to select the elevator into which the grain should be discharged. But the defendant alleges in its answer that it was the custom at the port of Buffalo, that when the cargo was consigned to different consignees, the owner or owners of the major part of the cargo could designate the elevator into which the whole cargo should be discharged, and that the owner of the minor part of the cargo could not claim to have his grain* delivered into any other elevator; and the proof shows that the consignees of the major part of the cargo of thе “Jay G-ould” designated the Niagara elevator as the elevator into which the grain should be discharged. The defendant, therefore, insists that it discharged its duty under its contract of affreightment by placing the plaintiffs’ grain in -that elevator. The plaintiffs, however, allege in their complaint that it was the custom at the port of ' Buffalo that when grain in the samе vessel came there con *244 signed to different consignees, each consignee could designate the elevator into which his grain should be discharged, and that the carrier was bound to discharge it according to such designation. Upon the trial, the defendant gave evidence tending to prove a custom such as it alleged, and the рlaintiffs gave evidence tending to establish the custom as. they alleged it to be, and the court, at Special Term, refused to find the custom as alleged by the defendant, but found it as alleged and claimed by the plaintiffs, in the following language, to-wit: “ That for a number of years prior to the making of said contract, and at such time, the course of trade by the parties hereto, and the general usage of all carriers of grain upon propellers into the port of Buffalo, and known to these parties, was to deliver and discharge their cargo or parts of cargo at such elevator in such port as the consignee thereof designated.” We think, after a careful examination of all the evidence, that it was abundant to authorize the finding, as to the custom in the port of Buffalo, made by the trial judge, and thus the only issue of fact litigated between these parties was found against the defendant.
When it becomes important to know what custom or usage or course of trade exists in any-locality, it is always a question of fаct to be determined by the evidence, and where the evidence is conflicting the decision of the trial term, unreversed upon appeal by the General Term, binds and concludes us. It was assumed in the pleadings and upon the trial of this case that the custom existing at the port of Buffalo would control as to the place and manner оf discharging the cargo in question, and the custom having -been found, as alleged by the plaintiffs, it would seem that nothing more really needed to be said upon that branch of the case. But the earnest and able argument upon the part of the appellant induces us to go a little further.
Prima facie
and generally it is the duty' of all common carriers to deliver gоods carried to the consignee, unless otherwise directed in the bill of lading. But the necessities of trade and the usages and customs prevailing at the place of delivery may control, and frequently do control, the manner of discharging this, duty. A carrier by wagon upon land is required to make de
*245
livery to the consignee at his place of business оr place of residence unless he is directed by him to deliver elsewhere.' A carrier upon water, with no means of land transportation, is generally permitted to deliver his freight upon the wharf at the port of discharge, giving reasonable notice of such delivery to the consignee.
(McAndrew
v.
Whitlock, 52
N. Y. 40;
Ex parte Easton 5
Otto,
75
;
Western Tel. Co.
v. Hawley,
It was said by Redfield, J., in
Farmers and Mechanics Bank
v.
Champlain, Trans. Co.
(
In
Gatliff
v.
Bowner
(4 Bingham’s N. C. 314), Tendal, C. J., said: “ We know of no general rule of law which governs the delivery of a bill of goods under a bill of lading, where such delivery is not expressly in accoi’dance with the terms of the bill of lading, except thаt it must be a delivery according to the practice usually observed in the port or place of delivery. An issue raised upon an allegation of such a mode of delivery would accommodate itself to the facts of each particular case.” In
Gibson
v.
Culver et al.
(
■ These authorities abundantly establish, that in all cases the delivery substituted in place of the actual delivery stipulated in the bill of lading must be in accordance with the usage and custom of the port of delivery, 'or the course of trade between the parties; аnd here we repeat it has been *249 established that the usage at the port of Buffalo, and the course of trade between the parties required the delivery of this wheat to the plaintiffs, and that a majority of the consignees could not control the delivery of their grain. The usage proved is not an unreasonable one. It is not impraсticable or .unreasonably inconvenient to comply with it. From the fact that the usage or custom exists, we must infer that the convenience of commerce is promoted by delivery as thus required. It may be more expensive to make deliveries in this way than to deliver the whole cargo at one. elevator; but we must assume that such expense is taken into account in fixing the rate of freight:
The learned counsel for the appellant contends that a custom, such as is claimed by the plaintiffs, was not found by the trial judge, inasmuch as he uses the language in his finding, of a “ general usage,” which, it is claimed, is not equivalent to a general custom. But it will be seen by an examination .of the cases аbove cited, and by reference to the elementary works, that the' words usage, custom, course of trade are used interchangeably, and it is quite apparent here that the learned judge employed the word “usage” in the sense of “ custom.” But further, if no usage whatever had been proved, regulating the manner of delivery at the port оf Buffalo, the defendant has then not justified this substituted delivery. Both elevators were in the port of Buffalo; both, so far as appears, equally accessible, both convenient and available. How, then, could the defendant justify the placing of the plaintiff’s grain in an elevator owned by other parties ? This grain was wet and damaged, and required treаtment in the drying apparatus contained in the Richmond elevator. It was a reasonable request, therefore, that.this grain should be delivered at the plaintiff’s elevator, and there was no evidence tending to show a usage or custom which would, in such a case, justify the substituted delivery.
Upon the question, then, of the defendant’s liability, we think ho error was committed in the court below. But we are of the opinion that the plaintiffs should not have recovered the freight paid. As the case now stands, the defendant has been put to the *250 expense of carrying and delivering the grain into the Bichmond elevator without any compensation whatever. This is certainly unjust and unwarranted. Either the plaintiffs should reсover the freight paid only on the ground that that was paid under duress when it was not due to the defendant, or they should recover what it cost them to complete the defendant’s contract. We are of the opinion that the latter is the most just and equitable rule. That gives the plaintiffs precisely what they would have had if the contract had been performed as they claim it should have been. They took the grain at the Niagara elevator and paid the entire freight stipulated. They then caused the grain to be carried and placed in the Bichmond elevator, and for that incurred an expense of $80.75, and that amount will furnish them a full indemnity for defendant’s breach of contract.
The judgment below must, therefore, be modified by striking therefrom $183.66, and the interest thereon, and as thus modified, the judgment should be affirmed, without costs of appeal to either party in this court.
All concur.
Judgment accordingly.