Sturges v. Buckley

32 Conn. 18 | Conn. | 1864

McCurdy, J.

It appears from the evidence, the admission of which forms the ground of this motion, that the plaintiff received back casks equal in number and value to those which he sent. But he insists that he has a right in law to demand the identical articles. The defense was that, in returning other casks, the defendant acted in accordance with a custom or usage existing among all persons engaged, as he was, in the business of forwarding farmers’ produce by railroads and steamboats to New York and selling it on commission; and that the plaintiff sent to him the barrels and their contents to be so transported and disposed of with a presumed knowledge of this custom, and with no instructions contravening it.

The plaintiff claims that the evidence in support of this defense was inadmissible for various reasons.

1. Upon the ground that the court has found that there was an express agreement to return the same barrels. But the motion contains no such finding. It shows merely that the plaintiff introduced evidence to prove that fact, while the defendant offered evidence to prove that no instructions were given by the plaintiff on the subject. And the court left the question to the jury for decision.

2. That evidence of a particular custom is inadmissible without proof of actual knowledge of it by the party to be affected. This leads to an inquiry as to the character of the usage in question. And however difficult it may sometimes be to distinguish between the two kinds, the usage relied upon in this case is undoubtedly of the class of general customs. It is described as such in the notice. It pertains to a very important kind of business, employing many persons, existing over a large extent of country, and centering in the city of New York. Various cases have come before this court wherein a custom has been held to be binding on a party without actual notice, and in none has the usage been more palpably a general one than in the present instance. Halsey v. Brown, 3 Day, 346; Avery v. Stewart, 2 Conn., 69; Barber v. Brace, 3 id., 9; Crosby v. Fitch, 12 id., 410; Bridgeport Bank v. Dyer, 19 id., 136; Leach v. Beardslee, 22 id., 404; Hitchcock v. Hunt, 28 id., 343. Besides, if the evidence only tended to prove the custom averred, it would be admissible.

3. That it does not sufficiently appear that the defendant may not still have in his possession the original barrels. The proof is that they were sent with the liquor to New York and that it was impracticable to return them.

4. That the notice was of a general custom, and the evidence tends to establish a particular one, and so there is a variance. The notice avers that the defendant was engaged in the business of freighting farmers’ produce from Danbury and elsewhere to New York to be sold and disposed of, and that he conformed to-thc general custom of those engaged in similar business in this state and elsewhere. The proof shows that his business was to take produce from farmers and others near the New York & New Haven and Danbury & Norwalk railroads to New York for sale, and that he complied with the usage of persons engaged in similar business on those and other roads, and persons employed in freighting by packets to New York. We discover no essential variance between the evidence admitted and that of which notice was given. Besides, the objection is wholly technical, and should have been taken precisely at the trial, and so presented in the motion.

To the kind of business earned on by the defendant the law of usage is unquestionably applicable; and the general rules of this law arc too trite to require the citation of authorities. A custom must be established; it must be reasonable; and it must not be inconsistent with the principles of law or public policy, or the provisions of au express contract. The custom in this case is obnoxious to no objection from these rules.

We do not advise a new trial.

In this opinion the other judges concurred.