
    Herman C. Fisher & another vs. Salome Sargent.
    In an action for goods sold, the jury may allow interest on the account, upon proof of a custom among merchants to charge interest in similar cases, with the knowledge of the defendant thereof.
    Assumpsit for goods sold and delivered. The only question was, the right to recover interest. The plaintiffs were traders in Boston, and at the trial, offered testimony tending to prove a custom among merchants and traders in Boston, to charge interest on their accounts after a credit of four or six months ; and that the usual credit for such goods was four or six months ; but offered no evidence as to the credit given in this particular transaction; or that payment had been demanded.
    The presiding judge, of the court of common pleas, Mellen, J. ruled, that the jury might, upon the foregoing evidence, allow interest after six months from the time of the sale, which they did. The defendant alleged exceptions.
    The case was argued and decided as of the October term, 1851.
    
      I. W. Beard & M. G. Howe, for the defendant.
    
      T. Wentworth, for the plaintiffs.
   Bigelow, J.

The only question presented by the bill of exceptions in this case is, whether, upon the evidence reported, it was competent for the jury to find a verdict for the plaintiffs, allowing them interest on their account.

Ordinarily, in the absence of any evidence of usage, or of a special agreement between the parties, interest cannot be recovered upon an open running account for goods sold and delivered, when there was no specific term of credit agreed on between the parties. This is the general rule ; but it may be aried by proof of the usage of a particular trade or business to charge interest after the expiration of a certain period. In such cases, parties having knowledge of the usage are presumed to contract with reference to it, and will be as much bound by it, as if it entered specially into the agreement of bargain and sale. Such usage may be shown by proof of the practice among merchants and traders, generally, in a town or city, or by evidence of the mode of dealing in a particular branch or class of trade. 2 Greenl. Ev. § 251; Loving v. Gurney, 5 Pick. 15; Esterly v. Cole, 3 Comst. 502.

It is undoubtedly true, that in order to render the usage of a particular trade or place binding upon a party, so as to make it part of a contract, it must be made to appear that it was known to the party who is to be affected by it. But this knowledge may be established by presumptive, as well as by direct evidence. It may be inferred from the uniformity and long continuance of the usage, from the fact that a party has for some time been in the particular trade to which it relates, from the previous dealings between the parties, or from any other facts tending to show its general notoriety. Whether such knowledge exists in any particular case is a proper question for a jury. In the case at bar, there was evidence tending to prove the usage, and its knowledge by the defendant, from which it was competent for the jury to infer a contract to pay interest on the articles, as charged by the plaintiffs. This question was submitted to the jury with instructions which are not reported, and which we are to presume to have been correct; a verdict having been rendered upon evidence properly submitted to the jury, from which it was competent for them to find a verdict for the plaintiffs, that verdict cannot be revised on a bill of exceptions. If it was against evidence or the weight of evidence, the remedy of the defendant was by a motion for a new trial. Exceptions overruled.  