
    Chester Strong vs. Levi Bliss.
    Evidence of a general usage, not of any particular place, trade, class of dealers, or course of dealing, cannot be received for the purpose of controlling a rule of law.
    Where A. received of B. $275, “ to buy flour,” and took of C. a receipt for $300, u towards 100 barrels of flour, at $4 per barrel,” without any delivery of the flour, actual or constructive, and there was no proof that such inchoate purchase from C. was intended, at the time, as a purchase on account of B., and B. never received any flour purchased by A. 3 it was held that B. might recover back from A. the $275, in an action for money had and received.
    Assumpsit for money had and received. The trial was in the court of common pleas, before Warren, J., who made the following report thereof:
    The plaintiff introduced evidence tending to show that he delivered @275 to the defendant, on the 20th of May 1840, and took from him a receipt in these words: “Received of Ches ter Strong $215, to buy flour in Rochester. Levi Bliss:” That the plaintiff received no flour that was purchased by the defendant; that in August 1840, the defendant called on the plaintiff, and expressed surprise that the plaintiff had not received the flour, said he had purchased it of Beebe & Co. in Rochester, and produced a receipt, of which the following is a copy: “Rochester, May 26th 1840. Received of Levi Bliss @300 towards 100 barrels of flour, at $4 per barrel. R. Beebe & Co.: ” That in the autumn of 1840, the plaintiff demanded the @275 of the defendant, who refused to pay it, and wished the plaintiff to take the receipt given to the defendant by Beebe & Co. in exchange for the receipt by the defendant to the plaintiff ; which the plaintiff refused to do.
    The defendant introduced evidence tending to show that Roderick Beebe and one Mack were, on the 26th of May 1840, doing business in Rochester, under the name of R. Beebe & Co., and that said Beebe was also connected in business, as a manufacturer of flour, with one McMillan, and that they did business under the name of Beebe & McMillan. But there was no evidence tending to show that Beebe & Co. were dealers in flour, or that they had any flour in possession on said 26th of May.
    The defendant offered evidence to show that Beebe & McMillan were in good credit at that time; but the court rejected it. The defendant then offered a witness to prove that it was a custom among merchants, going or sending to purchase goods, to pay for the article purchased, without taking a delivery or seeing it, and that it is considered a purchase, when paid for; but the court rejected the testimony.
    Tiie defendant contended that the contract, which he made with Beebe & Co., as evinced by their receipt, was a compliance with the terms of his undertaking with the plaintiff; but the court ruled otherwise, and instructed the jury, that if the facts, as above stated, were proved to their satisfaction, the plaintiff was entitled to a verdict. A verdict was returned for the plaintiff, and the defendant alleged exceptions to the foregoing rulings and instruction.
    
      Wellt & H. Morris, for the defendant.
    The doings of the defendant were a fulfilment of his engagement to the plaintiff “to buy flour.” He made a purchase of flour of Beebe & Co., and they sold it to him. Brown v. Bellows, 4 Pick. 198. Shumway V. Rutter, 7 Pick. 58. The defendant was, at the least, entitled to have the jury decide the question, whether he intended this purchase as a purchase for the plaintiff He should also have been allowed to prove the usage of trade. Goodenow v. Tyler, 7 Mass. 36. Macomber v. Parker, 13 Pick. 182. Thompson v. Hamilton, 12 Pick.-425 
      Coit v. Commercial Ins. Co. 7 Johns. 385. Lapham v. Alias Ins. Co. 24 Pick. 7, 8. Halsey v. Brown, 3 Day, 346.
    
      JR. A. Chapman, for the plaintiff.
   Shaw, C. J.

The court are of opinion, that the directions ot the court of common pleas were right on both points. The action for money had and received well lies, where money has been delivered to one to be applied to a particular purpose, and he has neglected or refused so to apply it. Such a case was proved, prima facie, for the plaintiff.

The proof of usage, we think, was properly rejected. It was not the usage of any particular place, or trade, or class of dealers, or course of dealing; it was of a general usage, to control the rules of law.

And so we think an advance of money to a house in Rochester, by the defendant, in his own name, for the purchase of flour not delivered, actually or by construction of law, was not a good execution of the stipulation with the plaintiff, on which the defendant received the money. It vested no property in the plaintiff, and it did not even give him a claim on Beebe & Co. And there is no proof that the inchoate purchase made of Beebe & Co. was intended, at the time, as a purchase on account of the plaintiff. We should lay no stress on the fact, that the defendant made the purchase of flour in his own name, if it had been in fact made on account of the plaintiff, and for his use. Had he actually purchased and forwarded the flour, either to the plaintiff or to his own address^ with evidence showing that it was intended for the plaintiff, though lost on the way, it would have presented a very different question. As it is, there is no evidence to show that the advance to Beebe & Co. was intended as an application of the plaintiff’s money, even if such an advance, without some further act done, would have been a good performance of his stipulation with the plaintiff.

Exceptions overruled  