
    Wadsworth v. Allcott and another.
    
      Parol evidence. — Bailment.—Custom.—Assets.
    A receipt for goods, when not in the nature of a contract, may be explained by paroi evidence.
    A general receipt for a quantity of wheat, subject to order, when called for, without charge for storage, imports a naked bailment, and the property does not pass.
    Proof of a usage or custom is not admissible, to contradict the legal import of a contract, the terms of which are plain and unambiguous.
    Where rent is payable in kind, and the lessor dies, before the crops have matured, the executor, and not the heir, is entitled to the rent.
    
    ^ g .. * Appeal from the general term of the Supreme J Court, in the eighth district, where a judgment entered upon a verdict, in favor of the plaintiff, had been affirmed.
    This was an action of trover for a quantity of wheat, brought by James S. Wadsworth and Martin Brunner, as executors of James Wadsworth, deceased, against Allcott & Smith, the defendants. Brunner died after issue joined, and the suit was continued by the surviving executor.
    James Wadsworth died in June 1844; he had, in his lifetime, demised certain farms, reserving rent payable in wheat, a portion of which became due in August of that year. In the fall of 1844, the executors made an arrangement with one Freeman M. Edson, that the latter should receive the wheat delivered by their testator's tenants for rent, and keep the same subject to the order of the executors, upon certain terms specified in the agreement. The tenants delivered wheat to Edson to the extent of 3000 or 4000 bushels.
    
      *Edson kept the wheat, under his contract, until June 1845, when, by reason of the breakage of his bins, it became necessary to remove it; he, thereupon made an arrangement with Smith & Allcott, the defendants, to store the wheat, and deliver it to the executors, when called for, or to pay the market price.
    On the trial, before Sill, J., the plaintiff offered in evidence, eight receipts signed by the defendants, acknowledging the receipt of 604 bushels of wheat, subr stantially in the following form:
    “ Received, Rochester, October 7th, 1844, from James Wadsworth, by D. Ely, twenty-seven and |g bushels wheat, being of the first quality.
    Smith & Allcott.”
    These receipts were objected to; *for the reasons: I. That the wheat mentioned in two of them, might as well be regarded as belonging to the heirs, as to the executors, and from the testimony already introduced, it was to be inferred, that the wheat mentioned in them was delivered on account of rent which fell due after the death of the testator; and if so, it belonged to the heirs. II. That the remaining six receipts, by their terms, showed that the executors were not the owners of the wheat mentioned in them.
    The plaintiff then offered to prove, in connection with the receipts, that the wheat belonged to the executors; this was objected to, but the judge overruled the objection, and admitted the evidence, and the defendants excepted.
    It appeared, in the course of the explanatory evidence, that, in addition to the said eight receipts, there was another in the plaintiff’s possession for 2345 bushels, which was produced, at the request of the defendant’s counsel, and read, as follows:
    
      “ Received, Rochester, November 21,1845, from James S. Wadsworth, by F. M. Edson, two thousand three hundred and forty-five bushels first quality wheat, subject to order, any day when called for; any day after first day of January next, without charge for storage.
    Smith & Allcott.”
    The executor’s agent testified, that he applied for this receipt, at the request of James S. Wadsworth; and that ^ g he objected, that it ought to have *been to “the -* executors of James Wadsworth.” This explanatory evidence was objected to, but the objection was overruled, and an exception taken. The witness also proved a demand of the wheat mentioned in the eight receipts, which he then said amounted to about 2900 bushels; the defendants replied, that they had ground the wheat, and had sold the proceeds, and paid out the moneys received to satisfy their own debts.
    The defendants’ counsel moved for a nonsuit, on the grounds — that the executors had not shown themselves to be the owners of the wheat; that the large receipt showed that it belonged to James S. Wadsworth, and not to the executors; and as to the other receipts, the objections before stated. The learned judge denied the motion; and the defendants excepted.
    They then offered to prove that, by the usage among millers and sellers of wheat, the receipt of the 21st November 1845 imported a sale, with the privilege to the vendor of fixing the price, at any time after the first of January. This was objected to, and overruled, and an exception taken.
    The judge was requested to submit to the jury the question of the meaning of the large receipt, which he declined to do; but instructed them, that there was no question upon it, for them, except the value of the wheat. That they were to determine the meaning of the other receipts (of which some evidence had been given, without objection); that if a bailment was intended, the plaintiff was entitled to recover; otherwise, if it was intended as a sale. The defendants’ counsel excepted to the charge, as to the large receipt.
    *There was a verdict for the plaintiff for the r * gg value of all the wheat, and the judgment en- *- tered thereon having been affirmed at general term, the defendant, Allcott, took this appeal.
    
      Comstock, for the appellant.
    
      Hastings, for the respondent.
    
      
       See Fay v. Holloran, 35 Barb. 295, 297.
    
   *Paige, J.

— The eight receipts were properly read in evidence; they were merely evidence of the delivery of the wheat to the defendants. Being receipts only, and not contracts, paroi evidence was admissible to explain or contradict their terms. It was, therefore, competent for the plaintiff, to show that the wheat belonged to him as executor. (7 Cowen 334.) The plaintiff could have proved the delivery of the wheat, without the production of the receipts. (8 Pick. 552; 2 Denio 638; 7 Cowen 335-6.)

The receipt of the date of 21st November 1845, imported a bailment and not a sale. It imported a deposit, a naked bailment of goods, to be kept for the bailor, without reward, and to be returned, when required by him, on any day after the first of January then next. By the terms of the contract, the identical wheat was to be returned. (Story on Bailments, §§ 41, 42, 47, 283; 2 Kent’s Com. 589, 560; 7 Cowen 752.) The property remained in the bailor; it did not pass to the bailee.

*The offer of evidence of usage among millers and sellers of wheat, to show that the receipt of the 21st November 1845, imported a sale, was properly [* 72 rejected. The terms of the contract contained in the receipt, are plain and unambiguous. The evidence of usage was not offered to ascertain the meaning, as understood by millers and sellers of wheat, of particular terms,8 in order to explain the subject of the contract; it went, not to interpret or explain, but to vary and contradict the contract. (2 N. Y. 241, 244 ; 2 Sum. 367; 13 Pick. 181-72; Cowen & Hill’s Notes 1411.) No usage or custom can be set up to control the rules of law, or to contradict the agreement of the parties. But where there is nothing in the agreement to exclude the inference, the parties are presumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contract relates; and the usage is admissible to ascertain the intention of the parties. (5 Hill 438-9; 1 Hall 632.)

The plaintiff proved, previously to the introduction of the receipt of the 21st November 1845, the receipt by the defendants, of the wheat therein mentioned; and also proved, that when that receipt was drawn by Allcott, one of the defendants, the agent of the plaintiff informed him of the mistake in the receipt, in relation to the ownership of the wheat. The plaintiff made out his case without this receipt, and does not rely upon it; the defendants called for it. So far as it was a receipt, it was susceptible of explanation. The court correctly decided, that the wheat belonged to the plaintiff, as executor. There was no question on the receipt of the 21st November 1845, to be submitted to the jury. I am of opinion, that the judgment of the supreme court should be affirmed.

Foot, J.

(.Dissenting.) — The main question between the parties in this action, respects the true construction of the following receipt: “Received, Rochester, November 21,1845, from James S. Wadsworth by F. M. Edson, two thousand three hundred forty-five bushels first quality wheat, subject to order, any day *when called r ^ ^3 for; any day after first day of January next, without charge for storage. Smith & Allcott.”

The exact point for decision is, whether the receipt imports a bailment, or a sale, of the wheat mentioned in it. The court, ascertaining the true meaning of the parties, has in addition to the language of the receipt, the aid of the fact that Smith & Allcott were millers, and not mere warehousemen. Considering the position in which these parties stood, the one having a large quantity of wheat; which he wished to hold, doubtless, for a better market, and the others being' manufacturers of wheat into flour, I cannot resist the impression, that neither the one nor the others expected the same identical wheat to be delivered, when demanded.

The respondent would have no motive for wishing the same wheat redelivered to him, but there was a substantial reason for his desiring the same quality of wheat to be returned, and that he should incur no expense for storage, and hence, the receipt specifies the quality of the wheat delivered, and that there should be no charge for storage. And as to the appellants, if the identical wheat delivered was to be returned, the time when, could be of no consequence to them, as they had no pay for storage; but if they were to manufacture this wheat, and return a like quality and quantity, the time when was of great importance to them. 1st. In respect to the profit they might expect and calculate to make from the diminution of price between the time of receipt and delivery; 2d. In respect to the purchases necessary for them to make to keep their mill in action; and 3d. In respect to the time when they must make the requisite outlay of funds to supply themselves with the quality and quantity of wheat required to meet the call for a return; and hence, the stipulation that the wheat shall not be called for till after first of January following the date of the receipt. Besides, as the appellants had nothing for storage, the transaction, if a bailment, would throw a heavy burden upon them, without any corresponding benefit, real or-prospective.

The construction of this receipt depends so entirely * 741 uPon *own peculiar language and accompaJ nying facts, that little, if any aid can be derived from adjudged cases, unless one could be met with like it in all respects; there is no such one, to my knowledge. The learning on the subject appears to have been exhausted in the prevailing and dissenting opinions in the case in this court, of Mallory v. Willis (4 N. Y. 76).

The spirit of the decisions, and the decisions themselves, so far as they apply, appear to me, to lead to the conclusion to which I have arrived, viz., that this receipt does not import a bailment.

Judgment affirmed. 
      
       Foster v Newbrough, 66 Barb. 645 ; Trull v. Barkley, 11 Hun 644.
     
      
       Farmers’ and Mechanics’ Bank v. Logan, 74 N. Y. 568, 586.
     