custom to a particular contract. The days of grace upon a bill of exchange was a familiar instance. In like manner, upon a purchase of goods, though payment be due upon the sale, the contract being debitum in præsenti, the usage of trade is constantly allowed to interpose, in order to give the buyer a certain extent of credit. Contracts, the creatures of custom, might be regulated by it; and, in the present case, the custom was not offered to contradict the contract, but as a reasonable qualification of it. HEATH, Justice.-It would breed endless confusion in the contracts of mankind, if custom were of any avail in a case like the present. I will admit evidence to shew that the buyer inspected the commodity, and made no objection to the quality; but no usage in a trade can deprive a man of the benefit of an express contract By requiring a warranty, he is to be understood as excepting against all terms but such as are stipulated in the bargain. It is open to the defendants to prove that the plaintiffs acquiesced; and evidence may be admitted to shew that they were guilty of gross negligence in not examining and rejecting the bacon in time. But the evidence of custom cannot be received to alter the contract. Although one of the plaintiffs examined three bales, which he did not object to, it does not follow, if the remaining bales were carrion, that he was bound to accept them. It is prima facie evidence which may be explained or rebutted. If the shipper failed, the loss must attach on the party who gave VOL. I. H 1815. YEATS v. PIM. 1815. YEATS the credit, not on the person who relied on the warranty. In the ensuing term, the Solicitor General moved for a new trial, on the ground that the evidence of the custom of the trade was improperly rejected at the trial. The Court, however, was unanimous in opinion, that the ruling of Mr. Justice Heath was perfectly correct. All contracts made in the ordinary course of trade, without stipulation, warranty, or express provision, are presumed to incorporate the usage and custom of the trade to which they relate. The trade is the ground of the contract, and the custom and usage, as members or parts of that trade, compose a whole thing. The contracting parties, being conusant of such customs, are presumed, and the presumption is generally consistent with the truth, to have it in their intention, that their contract shall not exclude such usages. But as it would be absurd to say that any one should be bound to a condi. tion, under whatever name, against his will, and contrary to his interest; so in all cases, where there is a warranty, or any special provision in the contract, contrary to the custom of the trade, such custom is excluded: the parties have varied the ordinary mode of dealing; and the custom, as a mere usage of trade, having no separate legal obligation, the expressed will contradicts the construction of law, and the limitation or enlargement is of course exempted. No usage, therefore, of trade, can be set up in contravention of an express contract. The days of grace on a bill of exchange are no exception to the rule. Bills of exchange are totally mercantile contracts; days of grace are part of the nature of the thing : they are as much a part of the contract on a bill of exchange as the act of payment itself. They are not incidental but of essence: they are not adscititious, but the thing itself. With respect to the sale of goods, if the contract be that they shall be paid for on a particular day, no custom can dispense with such a term. Nevertheless in ordinary cases, where no day of payment is expressed, the usage of the trade may introduce into the contract a particular credit, though the bargain, in form of law, raises a debitum in præsenti. But the usage operates in that case, because not being excepted by express words, the parties are presumed to contract with reference to the general course of the trade. A variety of cases has determined, that mercantile contracts are to be construed in conformity with the usage and custom of merchants. It has been doubted, however, by judges of the highest authority, whether this practice has not been extended too far. In Anderson v. Pitcher, Lord Eldon, C. J. observes, that as much subtilty is raised by the application of usage to the construction of a contract, as by the introduction of additional words, and that, if the matter were res integra, it might reasonably be questioned. 2 B. and P. 168. Mercantile contracts, however, when reduced to writing, are subject to the same rules of construction as other written instruments; therefore, in an action on a policy of insurance," on the ship till moored at anchor twenty-four hours, and on the goods till discharged and safely landed," evidence having been admitted that, by the custom of the trade, the risk on the goods, as well as on the ship, expired in twenty-four hours; the Court of K. B. granted a new trial on that ground, and on the new trial the evidence was rejected. Parkinson v. Collier, Park Ins. 416. See likewise Robertson v. French, 4 East, 135. and Cutter v. Powell, 6 T. R. 320., in which the doctrine of admitting evidence of usage to explain and construe mercantile contracts is strongly illustrated. 1 1815. Thursday, master of a ship receives and gives a re it is his duty the bill of lading, except who can give exchange. A. B. to be deli, CRAVEN and Others v. RYDER. When the ROVER to recover the value of some sugar. On 5th May, 1815, the plaintiff's entered goods on board into a contract with Messrs. Bogle and French, ceipt for them, to sell them, at a credit of two months, twentynot to deliver four hogsheads of Hamburg loaf sugar, to be delivered by the plaintiff's "free on board the to the person George, Captain Ryder." On the 11th of May, the receipt in Bogle and French sold the sugars to Caldas, sells goods to who paid for them; and Caldas subsequently vered free on sold them to Bene and Co. of Hamburg. The cular ship: he shipping order was in these terms, "To the comloads them on manding officer on board the George, Capt. Ryder; takes a receipt receive the undermentioned goods, for and on acpurports that count of Cruven and Co." When the goods were received" for shipped, a receipt was brought back from the deand on account fendant's mate in these words, "Received, 15th of the delivery, May, on board the George, Captain Ryder, the undermentioned sugars for Hamburg, for and on out the know account of Craven and Co.-Robert Ramsay, of A., ob- mate." It was in evidence that the usual form of board a parti board, and from C., which the goods were of A." Before B. had sold the goods to D., who, with ledge and con sent tains a bill of B. becomes insolvent. Held, that A. is entitled to lading from C. a lighter's note was not to add to the receipt, "for and on account of the party;" but a general note only was given with the goods. The lighterman stop the goods in this case had introduced, within a few months, a in transitu, and form which was peculiar to himself, and the mate liver them on had signed it on account of the defendant, seemthe production ingly without adverting to the contents. On the is answerable 17th of May, Bogle and French stopped payment, that C. having of the receipt, to A. in an ac tion of trover. A.'s right would have been the same, although the receipt had not contained the restrictive words, but had been in the general form. and on the 23d the lighterman demanded the goods. on the plaintiffs' account; at the same time he exhibited the mate's receipt, the Custom-house order to re-land, and tendered the freight and primage to Hamburg. The defendant refused to deliver up the goods, on the ground that he had already executed a bill of lading to Caldas. Lens, for defendant, contended, that there was no pretence for a stoppage in transitu. After the delivery of the sugar on board the defendant's vessel, the property had been twice changed, and the sugars no longer remained in their first condition. The right to stop in transitu, however equitable in principle, must have a limit; there was no case where a sale has been made bona fide, and after a delivery of the goods, in which the right of stoppage in transitu has been admitted. The lighterman's note was capable of explanation, and only meant to shew that the plaintiffs had complied with their contract with French and Bogle, in" delivering the goods free on board." The sugars, indeed, might have been stopped in their way to French and Bogle; but how could the title of Caldas be impeached? The plaintiffs had no intention of exporting the goods; they were put on board by the direction of French and Bogle, and when once shipped in order to be sent to Hamburg, they became the property of Bene and Co. DALLAS, Justice.-I am of opinion that this is a restrictive receipt. The Captain takes them on account of the plaintiffs. I think Craven and Co. 1815. CRAVEN and Others v. RYDER. |