
    Vail et al. v. Rice.
    
      Custom. — Contract of Sale. — Demand.
    A written contrect, definite and certain its terms, cannot be modified by proof of commercial usage.
    
    Where goods are to be paid for, on delivery at a specified place, the vendee can maintain an action for non-delivery, without proof of a demand; it is enough, to show that he was ready to receive, and able to pay.
    * Appeal from the general term of the Court of Common Pleas of the city of New York, where judgment had been entered upon a verdict in favor of the plaintiffs.
    Vail and Adams, who survived Thompson, brought this action against the defendant, for the breach of a contract in writing, dated the 28th April 1847, for the sale of “ a lot of canal oats, say about 4000 bushels, more or less, at forty-seven cents per bushel, deliverable in all the month of May next, from boats, at or near the foot of Broad street, in this city (New York), cash on delivery.”
    On the trial of the cause, various exceptions were taken by the defendant, which, with the facts on which they rested, are sufficiently stated in the opinion of Foot, J. There was a verdict for the plaintiffs, and judgment having been entered thereon, the defendant took this appeal.
    
      Cochran, for the appellant.
    
      Gerard,- for the respondents.
    
      
       See the cases, on this point, collected in Bright. Dig. 896.
    
   * Jewett, J.

The plaintiffs insisted, on the trial in the court below and on the argument here, that by the correct construction of the contract made between the parties, the defendant was bound to deliver to them, in New York-, at the place specified, such a quantity of canal oats, as a lot containing 4000 bushels, when shipped on the canal, would measure out at the place of delivery, without varying in that quantity beyond five per cent. And having failed to deliver, or offer to deliver, such quantity, they were entitled to recover against the defendant such damages as they had sustained ; to be computed upon that basis.

On the other hand, the defendant contended, that there was nothing in the terms of the contract, or the evidence, to show that any specific quantity of oats was intended by the parties as the subject of the contract. That the language of the contract contemplated an undefined “ lot of canal oats,” without any stipulation as to the quantity which such lot should contain, and, which the defendant insisted, the evidence showed, was the lot which he purchased of Booth, that the parties intended as the subject of their contract.

If it had been the intention of the parties, that the one should sell, and the other purchase, a particular quantity of oats, and not a particular lot, irrespective of the quantity which the lot contained; it is not unreasonable to suppose, that the contract would have so said. The words say about four thousand bushels, more or less, at forty-seven cents per bushel,” immediately following the words used as descriptive *of the thing contracted for, namely, “a lot of canal oats,” were evidently used by the parties as an estimate or representation of the supposed quantity, which the lot (the subject of the contract) contained, and not as an agreement that the lot mentioned did or should contain the quantity supposed.

The particular lot of oats contemplated is not identi-fled by the words of the contract, and, therefore, parol evidence was received, to show what lot it applied to; and it must be conceded, that it tended strongly to show that the lot intended by the parties was the precise lot which the defendant purchased of Booth, and had ready and offered to deliver to the plaintiffs, at the time and place specified by the contract, and which they refused to receive as a performance of his contract. If, then, the jury were satisfied, from the evidence, that the lot of oats contracted for was the one which Booth owned and sold to the defendant, and the defendant had offered to deliver it to the plaintiffs, at the time and place specified, pursuant to his contract, it was wholly immaterial, what quantity the lot contained. Delivering, or offering to deliver, the Booth lot to the plaintiffs, was a complete defence to the action, whether there was proof of the custom contended for or not; for it could not be allowed to control this contract.

In respect to this question, the judge, at the trial, correctly charged the jury, that, if it was the understanding of the parties, at the time of making the contract, that Rice should sell, and the plaintiffs purchase of him, a certain lot of oats, the exact quantity of which was unknown, at forty-seven cents per bushel; and that lot was sent and offered to be delivered to the plaintiffs, but' turned out to be less than the quantity supposed, then, there was an offer of a full performance of the contract on his part, and the plaintiffs could not recover. But I think, that he erred, in further charging the jury, that in considering that question, it would be important for them to determine, what was meant by the use of the terms “ more or less,” in the contract, for, if these terms had acquired, by the custom of trade, a particular meaning, at the place where the contract *was made, that custom must be regarded as entering into and constituting part of the contract; because, the parties were presumed to contract with, a knowledge of, and in reference to, such, custom.

It was claimed by the plaintiffs, that oats sent by canal to New York, would usually vary in measure, on arrival, from the measure as shipped, about five per cent.; sometimes, falling short, at other times, exceeding. That it was the usage and custom of this trade in New York, that by a contract for the purchase of a given quantity of oats, to be sent by canal to New York, in which the words “more or less” were inserted in reference to the quantity, the seller was bound to ship the quantity named, and to deliver that lot in New York, and whether the lot so shipped, on its arrival, fell short or exceeded the quantity shipped, the seller was bound, in performance of his contract, to deliver, and the purchaser was bound to receive and pay for, as many bushels as they then measured, not exceeding the variation of five per cent. Now, conceding that such custom was proved to exist, and that, in such a contract, it could be allowed to have that effect (which, however, I do not admit), such custom could not affect this contract, if it was for the sale and purchase of a particular lot, and not a specific quantity; and, therefore, if the jury came to that conclusion, from the evidence, it was wholly unimportant for them to determine, what was meant by the terms “more or less,” when contained in a contract for the purchase of a specific quantity of oats, to be sent by canal, for delivery in New York.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

*Foot, J.

The first exception is to a refusal of the court below to nonsuit the respondents, because they had not given sufficient evidence of their willingness to perform the contract on their part, nor of their ability to pay the contract price. The averment in the declaration., and which the respondents were bound to prove, was, that they were ready and willing, &c. The proof is full in respect to their willingness, and sufficient to carry the question to the jury of their readiness.

The next exception is to the charge of the court, made in the following words: “ That, to entitle the plaintiffs (respondents) to recover, the jury must be satisfied, that they were able, ready and willing to receive the oats and to pay for them, at the time agreed upon; that direct proof of a demand was not necessary; any evidence from which their ability, readiness and willingness to perform their part of the contract might be inferred, would be sufficient.” *This charge is in exact accordance with the rules of law settled upon this subject. Coonley v. Anderson (1 Hill 519), and the cases there cited by Bronson, J.

The next exception relates to a question which was contested on the trial, respecting the meaning of the contract. The appellant offered proof, which the court admitted, to show that the contract applied to a certain parcel of oats, purchased by him of one Booth, the quantity of which was unknown and uncertain, and claimed, that the words “more or less” were inserted in the contract to meet this uncertainty. The respondents, in anticipation of this proof, and to maintain that the contract applied to no particular parcel of oats, but called generally for four thousand bushels, and to show that the terms more or less ” were consistent with their view of the-contract, proved by a witness, who appears to have been in the grain trade, that " oats sent by the canal vary about five per cent, when they arrive, from what they were when shipped; they generally overrun or fall short about five per cent.; this is always expressed by the words ‘ more or less.’ We always make our contracts in that way, and we mean by ‘ more or less,’ to provide for an excess or a diminution not over or under five per cent.; we use the word •about,’ to express the same tiling. It is generally customary among us, that the purchaser takes whatever it is, and gets the benefit or suffers the loss, not exceeding five per cent,” On his cross-examination the witness stated — “ The custom is a general custom; I have never known any particular instance. All the grain-dealers do. S. S. & Co. have such a custom. I can’t mention a particular instance; I can’t give any other instance; I have sold grain to M. & D. this way.”

On this testimony, the court charged the jury, on the branch of the case relating to the true meaning of the contract, as follows: “ In this connection, it will be important for the jury to determine, what was meant by the use of the terms £ more or less.’ If these terms had acquired, by the custom of *trade a particular * meaning, at the place where the contract was *- made, such custom must be regarded as entering into and constituting part of the contract, because, the parties are presumed to contract with a knowledge and with reference to such custom.” To this charge the appellant excepted.

The first objection to the charge is, that the usage was proved by only one witness. There are several cases in which the question has been considered, whether one witness was sufficient to prove a commercial usage. (Thomas v. Graves, 1 Const. R. of S. Car. 150; Parrot v. Thatcher, 9 Pick. 426; Wood v. Hickok, 2 Wend. 501.) In the cases from South Carolina and Massachusetts, the' subject was fully discussed, and although the point was not directly decided, yet the reasoning of the courts and the tendency of their views were in favor of the proposition, that one witness was sufficient, if his opportunities of knowing the usage were abundant, and his testimony full and satisfactory. There does not appear to be anything in the character of the fact that a usage in a given branch of trade exists, which renders it important, that such fact should be established by more than one competent witness; and many cases may arise, in which the administration of justice would be needlessly delayed and burdened, by requiring two or more witnesses.

The counsel for the appellant supposes the case of Wood v. Hickok (2 Wend. 501) to be in favor of the position, that more than one witness is required to establish a usage. I do not so understand it. The question in that case was, whether interest should be allowed on an un-liquidated account for groceries. On the. trial, evidence was given, but whether by one or more witnesses, does not appear, but probably by one, that it was the uniform practice of grocers, to charge interest on goods sold, after ninety days. But the case did not turn on such practice ; it was not alluded to in the charge of the judge, nor by counsel, on the argument of the motion for a new trial. Mr. Justice SUTHERLAND, after deciding the cause on the grounds upon which it turned, adds a closing remark, a^ie ■*'estimo:ay one witness that it is the uniform practice of grocers to charge interest after ninety days, * * * does not amount to proof of'the usage of a particular trade.” The remark appears to have been casual; it certainly was not upon a point at issue in the cause, and whether sound or not, upon which no opinion is expressed, does not conflict with the proposition, that the testimony of one witness, who has adequate means of knowledge, may be sufficient to prove the existence of a usage in a given trade or business. When only one witness is called to establish a fact, the duty of a court and jury will always lead to an inquiry and examination into the circumstances; and if his single testimony be not satisfactory, it will not form a basis of judicial action. The question whether the testimony of one witness to such a fact is sufficient, may be safely left, in every case, to the court and jury.

The second and only remaining objection to the charge under consideration is, that a usage like the one sought to be proved cannot control the rights of the parties by giving meaning to their contract. This proposition is not open for discussion. It is settled by authority. (Goodyear v. Ogden, 4 Hill 104; Hinton v. Locke, 5 Id. 437; Coit v. Commercial Insurance Co., 7 Johns. 385; The Reeside, 2 Sumn. 567; Mutual Safety Insurance Co. v. Hone, 2 N. Y. 240, 241.)

The next and last exception necessary to notice, relates to an observation made by the court, as to the effect of certain testimony upon a question of fact. That question was, whether the contract did or did not apply to a particular parcel of oats. Some testimony was given of conversations with one of the respondents on that subject. The court, in the charge, say “there is nothing in Mr. Thompson’s language showing that he was to have only Booth’s lot of oats; of this, however, you are to judge.” If the observation that “there was nothing in Thompson’s language showing,” &c., had stood alone, and had not been afterwards qualified, it would have furnished ground for a *new trial; but being immediately followed by the remark, “of this, however, you are to judge,” it falls within the rule stated by KeNt, Chancellor, in the case of New York Fire Insurance Co. v. Walden (12 Johns. 519), viz.: “Whenever the judge delivers his opinion to the jury, on a matter of fact, it shall be delivered as mere opinion, and not as a direction; and the jury shall be left to understand clearly that they are to decide the fact.” This rule appears to be founded in practical wisdom, and commands approval ; judges at nisi prim should be exceedingly careful to keep clearly within it. In the present instance, the observation of the judge was too broad; but being immediately qualified by the direction given to the jury, the judgment cannot for that reason be reversed. I am, therefore, of opinion, that the judgment should be affirmed.

My brethren all concur with me in my views of the law; but a majority of them are of opinion, that the judge, in charging the jury, in effect stated, that although they should be satisfied, that the contract related to a specific lot of oats, then in the store of Booth, yet, if they were also satisfied of the existence of the usage spoken of by the witness, such usage would enter into and control the. contract. This they deem erroneous, and that the judgment for that reason should be reversed.

The charge and exception are in the following words: “ Now, if it was the understanding of the parties, when the contract was made, that Rice should sell, and the plaintiffs receive, a lot of oats, the exact quantity of which was unknown, at forty-seven cents a bushel, and that was sent, but turned out to be less than the quantity supposed, then, there was a full compliance with the contract ; that in this connection, it would be important for the jury to determine what was meant by the use of the terms ‘ more or lessthat if these terms had acquired, by the custom of trade, a particular meaning, at the place where the contract was made, such custom must be regarded as entering into and constituting part of the contract, because, the parties are presumed to contract with a knowledge and with reference to such custom.” To this part of the charge, commencing with the words “ that if these terms had acquired,” the defendant’s counsel excepted. I do not understand the charge as a majority of my brethren do, especially, the part excepted to; nor do I see any exception, covering the ground on which they place their judgment.

Judgment reversed, and new trial awarded.  