1815. SITTINGS AFTER MICHAELMAS TERM, YEATS and Another v. PIм and Another. ACTION for a breach of contract upon the sale of some bacon. On the 29th of March, 1815, the defendants sold Wednesday, An usage of trade cannot be set up to contravene an express con tract. Therefore, where A. agreed to sell to B. a quan which he war weighed and upon delivery to plaintiffs 50 bales of bacon, warranted to be (Penrose's) prime singed bacon, at 68s. per cwt.; tity of bacon, payable by a bill at two months from the landing; ranted to be of average for weight. The bacon was landed a few a particular quality, part days after the contract. On the 31st of March, of which B. one of the plaintiffs examined a bale, and upon the examined 3d of April three more bales were weighed and at the wharfopened. No objection was taken, and no allow- inger's, and ance claimed. A bill was drawn by defendants on whole by a bill plaintiffs for the price of the bacon, which was but before the accepted and duly paid. About the latter end of due gave noMay plaintiffs made a final examination of the the bacon was bacon, and rejected it on account of taint. paid for the at two months, bill became tice to A. that not agreeable to the contract. Held that B. could not give in evidence a custom in the bacon trade, that the buyer was bound to reject the contract, if dissatisfied therewith, at the time of examining the commodity; and that having neglected to do so in the first instance, he was excluded from future objections. 1815. YEATS v. PIM. The counsel for the defendants offered evidence, that there was a custom in the trade, upon the sale of bacon, to examine it a few days after the landing, if it was not imported at the time of the sale, and at the time of inspection to reject or accept it, or claim an allowance for damage or difference of quality; and that if the buyer did not at that time reject the contract, or claim an allowance, he was bound to accept the bacon without reference to the terms of the contract. Best and Vaughan, serjeants, and Marryat, for plaintiffs, objected to this evidence of custom in a case where there was a warranty. The question was, whether, on the 29th of March, 1815, this bacon was prime singed bacon. No usage can countervail a special contract or defeat a warranty. Nothing short of an express acceptance of the commodity, amounting to a waiver of the contract, could be an answer to this action. The Solicitor General and Scarlett, contrà.-A conclusion may be made against the plaintiffs, (as evidence that the commodity complied with the warranty) who do not reject it when they may, but by their conduct induce the seller to think that they accept it. The seller may be deprived of important advantages by their delay. The shipper, against whom he has his remedy over, may fail. After two examinations, and a bill drawn and accepted, it was too late for the plaintiffs to change their minds. The custom, offered in evidence, was not unreasonable. It was not unusual to append a 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 v. PIM. the credit, not on the person who relied on the warranty. Verdict for plaintiffs. 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 à 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 twen ty-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. 1815. YEATS v. PIM. |