
    Goodyear vs. Ogden & Pearl.
    A written instrument acknowledging the receipt of a quantity of wheat “ in store,” imports a bailment and not a sale.
    
    Such instrument is in the nature of a contract, and therefore not open to contra, diction in the sense of the rule applicable to receipts proper; though its import may be explained by parol evidence of the usage among dealers in wheat. Per Co wen, J.
    Where parol evidence is given of a usage to treat such instruments as importing a sale, it is for the jury to say whether the usage he so universal and well known as to raise the presumption that it entered into and formed a part of the contract in question.
    A new trial will not be granted on the sole ground of the verdict being against the weight of evidence, except upon payment of costs.
    
    The case of Green v. Burke, (23 Wend. 490,) commented on, and the reporter’s abstract of it corrected.
    Trover for a quantity of wheat, tried at the Cayuga circuit in March, 1842, before Moseley, C. Judge. The plaintiff gave in evidence several receipts signed by the defendants as partners, all of which were in the following form, except as to dates and amounts :
    “ Genoa, Sept. 22d, 1841. Reed, of Ives Goodyear 40 bushels wheat.
    
      In store. D. Ogden & Co.”"
    It appeared that the defendants were engaged in the business of buying and shipping wheat to the eastern market; and the question was, whether the wheat. in controversy was delivered by way of bailment or sale. The judge held the receipt not conclusive that the delivery was by way of bailment; whereupon the parties went into evidence to explain, and even contradict its meaning. The explanatory evidence was, that a receipt in such a form customarily meant a sale. The contradictory evidence was, the language and conduct of the plaintiff implying that a sale was intended. Among other things it appeared that the plaintiff aided in putting the wheat into a common bin where there were several thousands of bushels of wheat belonging to others. The judge left the explanatory and contradictory facts to the jury, who found in favor of the plaintiff. The defendants now moved for a new trial on a case.
    
      L. Walker, for the defendants. '
    
      David Wright, for the plaintiff.
   By the Court,

Co wen, J.

The receipt seems plainly to import a bailment. It was a contract, or in the nature of a contract; and therefore not open to contradiction in the sense of the rule applicable to receipts proper. In this view, the contradictory evidence was not admissible,

The import of the terms was controllable by the usage among wheat dealers—such as the defendants were—if that usage was so universal and well known that the jury were bound to consider it parcel of the contract. But of this they were the judges.

Supposing the words to be ambiguous, and so open to explanation by circumstances, these were not, I think, of that clear and decisive character which call on us to disturb the verdict. It is singular, and scarcely compatible with a bailment, that the plaintiff should have mixed the wheat with thousands of bushels belonging to others or to the defendants. But the evidence was not entirely explicit as to the mixture, The wheat was put in a common bin ; but that did not necessarily destroy the means of identifying it, The words common bin are themselves ambiguous. It might have been so arranged, although common, that the wheat of each customer could be distinguished. The question was one for the jury, as was also the construction to be placed upon the plaintiff’s language. The whole turns on the weight of evidence, even in the most favorable view for the defendants. .When wheat receivers I-----mean a sale, they should express themselves more clearly than was done in this case. They should make out bills of sale, or sale notes. It is, at best, dealing very freely with a written contract to receive and act at all upon parol evidence tending to show that a receipt of wheat in store means a sale.

The defendants claim a new trial solely on the weight of evidence. A contract worded as this was, weighs, in itself, very heavily against them; and to say it is clearly overcome, is more than we can do on the evidence in this case.

Having disposed of the principal case, a word is due to the profession in respect to a case cited by the defendants’ counsel, viz. Green v. Burke, (23 Wend. 490.) This has of late been often cited as showing that, though a verdict be • set aside as against the weight of evidence alone, the costs are to abide the event. The rule is otherwise, and nothing is said upon it in the case cited, one way or the other. Nor is there any color for the suggestion in the marginal note. A verdict, wrong inform, was received at the circuit, upon which such an entry on the record as was due to the justice of the case could not be made. On this error, as well as on the weight of evidence, a new trial was granted. The only thing said of costs, is in the direction, for entering the rule at the end of the case, viz. “ costs to abide the event.” Where the verdict is set aside purely as against the weight of evidence, unmixed with other reasons, the rule is as laid down by the chief justice in The Bank of Utica v. Ives, (17 Wend. 501.) It must be on payment of costs. Burke v. Green involved another point, on which I stated at the outset that a new trial must be granted; and the point is also stated in the head note of the reporter.

New trial denied. 
      
      
         See Cowen & Hill’s Notes to Phil. Ev.p. 216,217,1439, and the cases there sited.
      
     
      
       See Graham on New Trials, 603, and the cases there cited; Jackson v. Thurston, (3 Comen, 342.)
     
      
       See Dawson v. Kittle, (post, p. 107.)
     