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v. Pim.

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 presenti, 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.



the credit, not on the person who relied on the warranty

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Verdict for plaintiffs.

In the ensuing term, the So. tion, under whatever name, licitor General moved for a against his will, and contrary new trial, on the ground that to his interest; so in all cases, the evidence of the custom of where there is a warranty, or the trade was improperly re- any special provision in the jected at the trial. The Court, contract, contrary to the cushowever, was unanimous in tom of the trade, such custom opinion, that the ruling of Mr. is excluded : the parties have Justice Heath was perfectly varied the ordinary mode of correct.

dealing; and the custom, as a All contracts made in the

mere usage of trade, having no ordinary course of trade, with- separate legal obligation, the out stipulation, warranty, or expressed will contradicts the express provision, are presumed construction of law, and the to incorporate the usage and limitation or enlargement is of custom of the trade to which course exempted. No usage, they relate. The trade is the therefore, of trade, can be set ground of the contract, and up in contravention of an exthe custom and usage, as mem

press contract. bers or parts of that trade, The days of grace on a bill compose a whole thing. The of exchange are no exception contracting parties, being co- to the rule. Bills of exchange nusant of such customs, are are totally mercantile conpresumed, and the presump- tracts; days of grace are part tion is generally consistent of the nature of the thing : with the truth, to have it in they are as much a part of their intention, that their con- the contract on a bill of extract shall not exclude such change as the act of payment usages.

But it would be itself. They are not inciabsurd to say that any one

dental but of essence: they should be bound to a condi, are not adseititious, but the


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thing itself.
With respect

the introduction of additional to the sale of goods, if the words, and that, if the matter contract be that they shall be were res integra, it might reapaid for on a particular day, sonably be questioned. 2 B. no custom can dispense with and P. 168. Mercantile con. such a term. Nevertheless in tracts, however, when reduced ordinary cases, where no day of to writing, are subject to the payment is expressed, the usage same rules of construction as of the trade may introduce into other written instruments; the contract a particular credit, therefore, in an action on a though the bargain, in form of policy of insurance, “on the law, raises a debitum in præ- ship till moored at anchor twen senti. But the usage operates ty-four hours, and on the in that case, because not being goods till discharged and safely excepted by express words, the landed,” evidence having been parties are presumed to con- admitted that, by the custom tract with reference to the ge- of the trade, the risk on the neral course of the trade.

goods, as well as on the ship, A variety of cases has de- expired in twenty-four hours; termined, that mercantile con- the Court of K. B. granted a tracts are to be construed in

new trial on that ground, and conformity with the usage and on the new trial the evidence custom of merchants. It has was rejected. Parkinson Y. been doubted, however, by Collier, Park Ins. 416. See judges of the highest authority, likewise Robertson v. French, whether this practice has not 4 East, 135. and Cutter v. been extended too far. In Powell, 6 T. R. 320., in which Anderson Y. Pitcher, Lord the doctrine of admitting eviEldon, C. J. observes, that as dence of usage to explain and much subtilty is raised by the construe mercantile contracts application of usage to the con- is strongly illustrated. struction of a contract, as hy



CRAVEN and Others v. Ryder.
Dec. 14.
When the

TROVER to recover the value of some sugar. master of a ship receives

On 5th May, 1815, the plaintiffs entered goods on board into a contract with Messrs. Bogle and French, ceipt for them, to sell them, at a credit of two months, twenty. not to deliver four hogsheads of Hamburg loaf sugar, to be lading, except delivered by the plaintiffs 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 acfrom C., which purports that count of Cruven and Co.” When the goods were 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 the goods to undermentioned sugars for Hamburg, for and on D., who, with out the know. account of Craven and Co.--Robert Ramsay, ledge and consent of A., ob. mate." It was in evidence that the usual form of lading from c. a lighter's note was not to add to the receipt, “ for B. becomes

and on account of the party;" but a general note I insolvent.

Held, that A. 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 refused to de. 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, to A. in an action 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 ex

CRAVEN hibited the mate's receipt, the Custom-house order and Others to re-land, and tendered the freight and primage

Ryder. to Hamburg. The defendant refused to deliver up the goods, on the ground that he had already executed a bill of lading to Caldas.

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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.

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