
    Mays vs. Jennings.
    1. Mays, for*a stipulated consideration, covenanted to deliver a given number of barrels of corn to Jennings, and Jennings bound himself to furnish sacies to put the corn in. Jennings delivered the sack3, which were received, and Mays failed to deliver the com or return the sacks. Held, that in a suit on-lhe covenant for a breach thereof in not delivering the corn sacked, the value of the sacks detained was proper to be considered in estimating the damages.
    2. Where a covenant was made for the delivery of a given number of barrels of corn, the quantity should be ascertained b}' the bushel measure as fixed by law, and not by weight and evidence of a neighborhood custom, which cannot be permitted to control the law. • ■
    Jennings instituted an action of covenant in the Circuit Court of Gibson county, against Mays. The declaration avers the making of an agreement on the 10th-day of April, 1841, signed and sealed by tlie plaintiff and the defendant; that defendant bound himself to deliver to Jennings by the first day of December next thereafter, at Eaton, in the county of Gibson, at one dollar per barrel, all the'corn that the defendant should make, except enough for his own use, which was to be one hundred and seventy-five barrels, if he did not make a full crop, and two hundred if he made a full crop; that the corn should be thrashed and sacked; and that the plaintiff Jennings bound himself to deliver the sacks at Eaton by the-time specified, and to execute his notes for the purchase money on the day of the delivery of the corn, payable on the 15th day of February next thereafter. The declaration further avers, that the defendant did produce, during the ensuing season after the execution of the covenant, a large and full crop of corn, and had for- sale, after reserving for his own use the number of barrels specified in tbe article of agreement, — barrels; that he (plaintiff) furnished the sacks according to agreement, and that he was at Eaton at the time specified, ready to receive the said corn and execute his notes according to contract; that defendant received the sacks and sacked the corn,' and- refused to deliver it.
    The defendant pleaded “covenant performed,”' and leave was “given to each party to give in evidence any matter that could be specially pleaded.”
    There was an issue on this plea submitted to a jury at the July term, 1842, Harris, Judge, presiding. The covenant was read to the jury, sustaining the description thereof in the declaration, and proof was introduced showing that Jennings had delivered to Mays, on the 6th day of December, 1841, seven hundred and fifty sacks; that the sacks were worth, in Gibson twenty cents each, weighing two pounds each. T.o this proof as to the value of the sacks the defendant objected, on the ground that they were not recoverable in this action. After the corn was sacked, the defendant offered to deliver it to the plaintiff, the quantity delivered to be ascertained by weight, estimating fifty-two pounds to the bushel, or two hundred and sixty pounds to the barrel, exclusive of the sack. The plaintiff refused to receive the corn by weight, but required that the quantity of corn should be ascertained by measuring it in a bushel or half bushel measure. The corn was not, for this al-ledged reason," delivered: the defendant then offered to return the sacks: plaintiff refused to receive them, saying he would make the defendant pay for them at twenty cents per sack. Defendant then offered the value of seven hundred and fifty sacks at twenty cents each in Tennessee bank paper, to which plaintiff replied that bank paper was not'a lawful tender.
    The defendant proved by several traders and planters, that the mode adopted for ascertaining the quantity of corn was this; when a contract was made for the delivery of a given number of barrels of corn, to be thrashed, sacked, and delivered at Eaton, the quantity of corn was ascertained by weight at fifty-two-pounds as a bushel thereof, or two hundred and sixty as a barrel thereof. It was also proved, that this was the mode adopted not only at Eaton, but along the whole course of the Mississippi, and at New-Orleans, when the corn was intended to be shipped-for sale. It was also proved, that on an average the result would be near about the same, whether weighed at fifty-two pounds as a bushel or measured by the bushel measure; that flint corn would weigh from .fifty-four to fifty-seven pounds to the bushel, and the ordinary corn of the country would weigh about fifty-two pounds to the bushel.
    It appeared that corn was worth about one dollar and twenty-five cents per barrel that season, and that the defendant sold his corn at one dollar and twenty-five cents per barrel by weight, part in cash and part on credit. ' '
    The defendant requested the court to charge the jury, that if they believed, from the evidence, that it was the understanding of the parties, on making the contract, that the quantity of com delivered should be ascertained by'weighing it, estimating fifty-two pounds as a bushel, or two hundred and sixty pounds as a barrel, that the jury, should be governed by such understanding in making up their verdict. This the court refused to charge, and charged the jury that the mode of measurement was prescribed by law to be by the bushel measure and not by weight, and that the jury would be governed by this rule and no other; that the'covenant fixed the understanding of the parties, which the court would construe fo'r the jury to mean by the bushel and not by weight, and that the jury should so consider it.
    The defendant also requested the court to charge the jury that the value of the sacks was not recoverable in this action; but the court charged the jury that the value of the sacks was recoverable in this action, and that the declaration was sufficient to authorize it, leaving the facts to be ascertained by the jury.
    The jury returned a verdict for the plaintiff, for the sum of two hundred and twenty dollars. The defendant moved the court for a new'trial. The motion was overruled, and judgment rendered bn the verdict. The defendant appealed.
    
      R. P. Raines, for the plaintiff in error.
    1. The plaintiff in error was not entitled to recover the value of the sacks. They are not embraced in the covenant of the defendant. He did not covenant that he would pay for a given or any number of sacks. He covenanted to deliver corn, and the covenant extends no farther than to render him liable for damages arising out of the breach of the contract in not delivering the cont. Although the sacks came into the possession of the defendant under the covenant, the covenant did not provide for the contingency which arose eventually, to wit, the non-delivery of the com and non-return of the sacks. The extent of the plaintiff’s right of recovery and extent of defendant’s liability is limited to the terms of the covenant.
    2. The court charged, that it was the province of the court to construe the written covenant of the parties, and this covenant meant that the com was to be measured by the bushel measure. He did not controvert the first position, but insisted that each party had agreed that so many barrels should be delivered; and that the question as to what quantity a given number of barrels would contain, was not fixed by the covenant, but was an open question to be fixed by the contract of. the parties, expressed or implied, which could be ascertained by reference to the 'uniform usage and established custom of the country, as understood by merchants, planters and traders of the country where the corn was sold, and to which it was to be shipped. The parties not having entered into any express contract as to the mode of ascertaining the number, of barrels, the presumption necessarily arises, that they intended to contract and deal according to the general usage, practice and understanding in relation to sales of corn. Smith v. Wright, 1 Caines’ Rep. 13; Barber v. Bruce, 3 Conn. 9; Douglas, 519; 5 Munford, 483; 5 Binney, 287.
    
      Crocket, for the defendant in error.
    
      Totten, for the plaintiff in error.
   Turley, J.

delivered the opinion of the court.

This is an action of covenant, brought by the defendant in error, to recover damages against the plaintiff for the nonperformance of a contract made on the 10th day of April, 1841, by which he promised to deliver to him, at one dollar per barrel, all the com he might raise to spare that year, thrashed and sacked, by the first day of December, Jennings furnishing the sacks. The proof shows, that seven hundred and fifty sacks were accordingly furnished, worth about twenty cents apiece; that the com was sacked by Mays and tendered to Jennings; but that Mays, instead of measuring the corn by the bushel measure, refused to deliver it but by weight of fifty-two pounds to the bushel, two hundred and sixty to the barrel, which was refused by Jennings, and thereupon Mays sold the corn to another, by weight, at one dollar- and twenty-five cents per barrel. There was proof introduced, showing'that corn was often sold and delivered in that neighborhood by weight, and that there was but little difference in the quantity as ascertained by weight and measurement. The court charged the jury, “that the value of the sacks was recoverable in'this action; that the evidence establishing the mode of measurement was incompetent;- that they must not be governed by it, but consider it rejected; that the mode of measurement was prescribed by law to be by the bushel, and not by weight.” This charge is objected to upon both points, but we think without success. On the first point, by the terms of the contract the sacks were to be furnished ' by defendant in error, to be returned to him filled with corn. They were furnished and not returned, and of course, in estimating the damages for the breach of the contract, their value must be taken into consideration. On the second point, a barrel, dry measure, 'is by law fixed at five bushels, and not at two hundred and sixty pounds; and if a contract is made for so many barrels of corn, the purchaser is entitled to receive it by the bushel, unless he contract otherwise. Proof of a neighborhood practice cannot alter the law. Judgment affirmed.

Note —On demurrer to a plea, stating; a custom in Southampton, that any pound of butter exposed to sale in the markets of said town should and ought to weigh eighteen ounces; it was contended, that the custom was contrary to the law of the land and statutes, which direct that every pound should contain sixteen ounces.

Per cur. We are not called upon to decide whether a custom to sell butter in lumps of any particular weight is good or not. The question is, whether, when a person is selling' butter under the specific denomination of a pound, he shall be compelled to sell more than a pound. Butter is described to be sold by avoirdupois weight, by which a pound of butter weighs sixteen ounces: then how can a person who professes to sell a pound of butter be obliged tO'Sell more than a pound? ft might as well be argued, that a custom might prevail in a particular place that a less number of days than seven should make a week, or that a less space of ground than an acre should be an acre. Such a doctrine is absurd. Noble v. Durell, 3 Term Rep. 271.

See Tomlin’s Law Die. title Measure, Petersdorff, vol. 15, page 391; 6 Coke, 67. Magna Charter ordains (ch. 25)-that “there shall be but one measure throughout England, according to the standard in the Exchequer.” 4 Inst. 273. In 5 Geo. 4, an act was passed, ascertaining and establishing uniformity of weights and measures.

At the organization of the federal government, authority was conferred upon congress to establish a uniform system of weights and measures. But, surprising as it may appear, no laws have as yet been enacted by that body for the perfection of so important an object. Some measures have been taken to obtain information on the subject, and able reports have been made by Messrs. Jefferson, Adams, and Hassler. By an order of congress, June 5,1836, a set of standard weights and measures, similar to those in use in England anterior to the passing of the ‘Act of Uniformity’ in May, 1834, have been prepared by Mr. Hassler for the use of each customhouse, and for each state. Hence, the old measures of England, superseded by the imperial system, with such modifications as local customs or state laws have ingrafted upon it, may be regarded as the general standard adopted in this country.

Most of the states of the Union have attempted to reduce their standards of weights and measures to a uniform system, and numerous laws have been enacted with that view; but so far from succeeding in their object, they have had, in most instances, an opposite effect. There are but few states in which the proportions of their measures are required bylaw to be the same — lineal, superficial, and cubic measures excepted— although they may bear the same names; and owing to the difficulty pf enforcing new regulations, strong prejudices against any innovation, and a constant influx of settlers from one state into another, and from various countries of Europe, who bring their own accustomed weights and measures, uniformity cannot be said to exist in any state of the Union. In this country, as did England and France before their new systems were adopted, local consumers do not feel the whole disadvantage of this confusion; but merchants and others, who make-large sales or purchase in different parts of the country, often experience serious difficulties in converting to their own local standards the quantities expressed according to another rate. The proportion which one standard bears to another is not always easily obtained; and when it is, the calculations to he made are often long and difficult, and may not always give an accurate result.

Hunt’s Merchants’ Magazine, vol. iv. page 344. McCulloch’s Commercial Dictionary, page 370.  