
    The Goulds Manufacturing Company, Appellant, v. Thomas Munckenbeck and Others, Composing the Firm of Munckenbeck Brothers, Respondents.
    
      Sales — terrhs of credit in invoices cannot be va/ried by proof of a trade custom or of former dealings between the parties: '
    
    The unqualified acceptance by .vendees, of invoices sent with goods sold, which contain the statement “ Terms: 80 days,” constitutes an adoption of such terms, ' which thus become part of the contract of sale, and entitles the vendors to recover interest, after such thirty days, and such terms cannot, in the absence of any release supported by a consideration, be- deemed to have been waived by force of a trade usage prevalent in the trade in which the parties are engaged,' under which interest is not chargeable until vendors have furnished vendees -.-with a further monthly statement of the account, nor will the contract be ,. affected by proof of former dealings between the parties in Which the vendors' rendered such monthly statements to the vendees.
    Appeal by the plaintiff, The Goulds Manufacturing Company, from a judgment of 'the Supreme Court in favor of the defendants,, entered in the office of the clerk of the county of Kings ou the 2d day of December, 1896,.upon the verdict of a jury, and'also from an order entered in said clerk’s office on the 11-th day of December,; 1896, denying the plaintiff’s motion for a new trial made, upon the minutes.
    
      Henry Marshall, for the appellant.
    
      T. Ellett Hodgskin, for the respondents.
   Bradley, J.:

The subject of the controversy is the interest upon the price of a quantity of goods sold and delivered by the plaintiff to the defendants, who composed the firm of Munckenbeck Brothers. There is no question about the nature, quantity or price of the goods sold or of the time of the sale and delivery of them. They were ordered by the defendants from time to time in the years 1891 and 1892, and following the orders respectively the goods, with invoices of them, were delivered to the defendants. In these invoices it was stated that the Goulds Manufacturing Company sold to Munckenbeck Brothers, Terms: 30 days,” the goods at the prices there mentioned. The plaintiff, treating the terms of credit for the goods as designated and adopted by the ¡Darties, sought to recover interest upon the principal sum unpaid from and after the expiration of the thirty days following the time of the sale and delivery of the respective.bills of goods. The apparent import of the invoices accompanying the goods was that they were sold and delivered upon a credit of thirty days, and such was the apparent effect as between the parties when the goods and the invoices were received by the defendants, without any objection, protest or qualification. It follows that, unless something further intervened to modify such effect, the term of credit so expressed constituted part of the contract of sale (Dent et al. v. North American Steamship Company, 49 N. Y. 390; Metropolitan Manufacturing Company v. Dunning, 2 N. Y. St. Repr. 711); and, as a consequence, the plaintiff would be entitled to interest from the time of default in payment arising from the failure to pay at the expiration of the thirty days after the delivery of the bills of goods respectively. (Van Rensselaer v. Jewett, 2 N. Y. 135; Adams v. The Fort Plain, Bank, 36 id. 255.)

This rule of law is so familiar and common in its application to ordinary business transactions as to require the expression of no further consideration. It is,' however, urged on the part of the defendants that, by reason of a custom in the plumbing trade, in which they were engaged, they were not in default for not paying the bills for the goods on the expiration of the thirty days, but that to put them in default it was necessary for the plaintiff to furnish them with a further statement of the goods, and that the observance of the custom required that the statements be furnished monthly or on the first of each month. The defendants gave evidence tending to prove that their habit had been to receive monthly statements of goods delivered during the preceding month; that they were examined, and if found correct, paid; and .that the invoices when received were cheeked off, and if found to correctly represent the goods received,: were laid aside; that they had dealt with the plaintiff several years; that prior to the time of the commencement of the delivery of the goods in question in 1-891; the jdaintiff had furnished monthly statements to them, and that they gave no attention to the terms' of credit expressed in the invoices. The evidence of the defendant who testified on the subject related mainly to the dealings of his firm; in buying and selling plumbing materials. It does riot appear that any person of whom they purchased goods, other than the plaintiff, placed any terms of credit in their invoices. The evidence on the part of the defendants is to the effect that the- habit in their dealings had been to receive and furnish monthly 'statements upon which to- make and receive payments of bills of goods. The evidence by which the defendants sought to prove usage in the trade was received against the objection of the plaintiff’s •counsel, that the matter of the custom of the plumbing trade had no application to' the plaintiff’s claim for interest. The method adopted by the plaintiff, as appears by the terms .expressed in its invoices of go.ods sold, was -to sell them on a credit of thirty days. The defendants had the invoices, and were thus advised of the terms óf the sale and credit when the goods were received; The unqualified acceptance of them was an adoption of such terms, which thus became part of the contract of the sale and purchase of the goods. They appeal’ in the contract; and nothing is found in the evidence to take those terms from it or to deny to them the effect which they purport to have. And being part of the contract, without any ambiguity, the terms of credit, like any other provision .of the contract, are not: subject tobe overcome by mere Usage or custom of the trade in which the defendants are engaged. (The Mutual Safety Ins. Co. v. Hone, 2 N. Y. 235; Howell v. Dimock, 15 App. Div. 102.) The rule is well established that parties dealing and contracting as to matters in relation to which there is a uniform, continuous and well-settled custom, are presumed to contract in reference to such custom when nothing appears in the contract to the contrary. (M’Allister v. Reab, 4 Wend. 485; Esterly v. Cole, 3 N. Y. 502; Walls v. Bailey, 49 id. 464; Newhall v. Appleton, 114 id. 140; Atkinson v. Truesdell, 127 id. 230.)

It will be seen by reference to the cases just cited that such rule relating to usage applies to dealings, between parties, only when the terms of their contract are such as to permit its application without conflicting with them. When a custom or usage is-not consistent with the terms of a contract between parties, the latter necessarily, in legal effect, governs their rights. It is, however, suggested by counsel that if the. terms of credit in the invoices, are treated as an essential part of the contract, they could be waived by the plaintiff, and should be treated as waived by force of the usage referred to, and in view of the former dealings between the parties.

There is a marked difference between the waiver of strict performance of a condition precedent, and the . discharge of a person from legal liability which he has assumed by the contract. The cases cited by the learned counsel for the' defendant relate to the former, which requires no consideration for its support, as well as those referring to circumstances which may be productive of equitable estoppel. They have no necessary application to the question of releasing a party to a contract from the legal obligation which he has assumed by it. A consideration is essential to such a release. ( Crawford v. Millspaugh, 13 Johns. 87; Jackson v. Stackhouse, 1 Cow. 122.) As has been observed, the legal effect of the terms of the contract was such that interest began to accumulate on the expiration of the specified credit, and as the interest accrued it became part of the debt for which the defendants could not become relieved without payment, or by release having the support of a consideration. ■ Neither is claimed as a defense. '

On the conceded fact that the terms of credit were expressed on the face of all the invoices of the goods in question, we think that the .plaintiff was entitled to the verdict which the court was requested by its counsel to direct, and that the exception to the denial of such request was well taken. .

The judgment and order should, therefore, be reversed, and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  