Boorman & Johnston vs. T. W. &. W. L. Jenkins, 12 Wend. 566

By the Court, Savage, Ch. J. I will briefly notice the exceptions taken at the trial, in the order in which they arose. The first three exceptions relate to the usage of those in the cotton trade, both merchants and brokers. There are certain usages of trade which are adhered to by all persons in that particular trade, which, by common consent, acquire the form of law. It is true that such usages cannot control or alter the settled law.

There could be no well founded objection to the testimony given in this caseras to the mode of effecting sales by sample the custom of brokers to take samples, and the offer of them for the inspection of their customers. As samples were never taken but by consent of the owners, the fact of their being taken was a circumstance supporting the proposition that the brokers in this case were authorized to make the sale.

It is very immaterial in this case whether this testimony was strictly admissible or not in so far as it related to the authority of the brokers, and the usage to reject the bales which appeared to be damaged, because it is in proof'that an agreement existed that the bales externally injured should be rejected ; and the subsequent acts of the defendants below, acquiescing in the sale, delivering the cotton, and paying the brokerage, are abundant evidence of the authority of the brokers. To. the evidence of the recovery against the plaintiffs by the Dorchester factory, there was no exception.

The next questions arise upon the motion for a nonsuit, and it is insisted, that the sale was not a sale by sample for various reasons, and principally because the written evidences of the sale, to wit, the entry in the brokers’ book, the bought and sold note, and the bill of parcels, contain no reference to a sale by sample. This involves the inquiry how far parol evidence is admissible in reference to contracts which have been reduced to writing. It is not my purpose to discuss this subject at large, but to refer to some principles applicable to this case.

I assume as correct the proposition that parol evidence is not admissible to contradict, alter or vary a written instrument, either then required by law to be in writing, or when entered into by the agreement of the parties, where no writing is necessary to the validity of the agreement. 3 Stark. Ev. 996, 1002, et seq. Where parties have made their bargain by parol, as they are usually made in the first instance, and then have committed it to writing, the presumption is that they have written as much as they deemed material.

The rule in such case is, that the verbal contract being merged in the writing, that shall control, and shall not be contradicted by parol, though it may be explained if ambiguous. There are exceptions which it is not important now to notice. But parol evidence may be given to apply the written contract to the subject matter — in some instances, to explain expressions, used in a peculiar sense, when used by particular persons and applied to particular subjects. Hence Mercantile instruments are to be expounded according to the usage and custom of merchants. 3 Stark. Ev. 1033.

It is perfectly right and consistent with fair dealing, to give effect to language used in a contract, as it is understood by those who make use of it. In ordinary transactions, it must be understood as mankind at large understand it; but where» in any particular trade, certain expressions acquire a peculiar meaning from the manner in which they are used, and the subjects to which they are applied, as was said by Chief Justice Gibbs in Birch v. Depeyster, 1 Stark.

Cas. 167, evidence may be received of mercantile usage, to show the meaning of the term, just as you look into a dictionary to ascertain the meaning of words ; though in that case he went farther, and permitted a conversation previous to entering into a written contract, to ascertain the meaning of the words privilege and primage, as used between the owners of a ship and the cap-ta'n- It is true that where words have acquired a known legal meaning, it cannot be shown that they were used in a different sense, yet, in many instances, evidence of usage is admissible for the purpose of ánnexing incidents to a written instrument, concerning which the instrument is silent.

This rests upon the presumption that the parties did not carry out the whole of their intention, but meant to be guided by usage in similar dealings. 3 Stark. 1038. So instances are given where the law annexes a meaning to terms apparently in contradiction to the writing. A note payable on its face in 60 days means a note payble in 63 days. So a note payable at a bank must be paid in banking hours. These usages are considered evidence of the assent of the parties to comply with them. I do not therefore see any objection to the evidence of usage given by the broker, as to the manner of making his entries.

If it does not prove a warranty in the sale, neither does it disprove it; it leaves the instrument to the costruction of law upon its terms, connected with the subject matter and the parties concerned in the transaction. I fully subscribe to the general doctrine, that in sales of personal property, the vendor is not liable for any defect in the

article sold, without fraud or warranty. When the purchaser has an opportunity of examining the

article which he purchases, the rule caveat emptor applies. There are exceptions, but they are not important in the decision of this case. If there is any thing settled in relation to mercantile law, it must be considered settled in this court, that a sale by sample is per se a warranty that the bulk shall correspond with the sample. This results from the principles already referred to, to wit, that the rule caveat emptor applies where the purchaser has an opportunity to examine the articles which he purchases. Cotton is sold by the bale. How can the purchaser examine the

article ? only externally and superficially, and the interior only to a small extent. The instruments with which the samples are taken in general are from eight to twelve inches in length, and samples are in fact taken from about four inches. Such is the proof in this case : and it is further proved, that the damage in the middle of the bales could not have been discovered without opening the bales. Here is a good reason why caveat emptor should not apply. You cannot examine the

article without opening the bales. That is never done — it would not be permitted, and would be attended with great expense and inconvenience. Hence, as I have heretofore said in the case of the Oneida Manufacturing Company v. Lawrence, 4 Cowen, 444 every sale of packed cotton is a sale by sample. It is so by the usage of trade, which is founded upon general convenience and consent : that usage is shown in this case. The brokers send their agents to the owners, and obtain permission to take samples.

The object is perfectly understood; it is to aid the owner in selling his merchandize, for which service the broker is to receive the usual compensation. This is not done without the owner’s consent. I need not here discuss what acts constitute the agency of the broker; for, in this case, the acts of the brokers, in the usual course of the business, were adopted and ratified, and there is an end of all question as to agency in this instance.

I am showing that the sale of packed cotton is, and must be a sale by sample; the evidence shows it is always so ; and 1 add, it must be so, because it cannot be made in any other manner, without an expense and inconvenience which could not be tolerated. If there ever was a sale by inspecting the bulk, the defendants had an opportunity to show it; but no such pretence was alleged.

It is said the buyer had an opportunity of judging as well as the seller, and sometimes does draw other samples than those exhibited by the broker; but does that enable him to know whether the middle of the bale is composed of damaged cotton ? or whether water or some heavier substance has been introduced into the middle of the bale as is too often done 1 Our books show too many instances of fraud in this article, and sound policy requires that the rule which has been adopted in the sale of it, should prevail.

If courts hold that the same rule shall govern in this case as in the sale of a horse, where both parties have an equal chance to examine the

article which is bought and sold, and there happens to have been fraud practiced by the person who packed the cotton, it is manifest the purchaser may Jose, and that without remedy: whereas, the rule established in such cases gives a remedy over by each person through whose hands the property has passed from the grower to the consumer, and thus the author of the fraud may be compelled to respond in damages for the injury of which he was the iniquitous cause. The rule caveat emptor in such a case holds out a premium to fraud: whereas the contrary punishes it, and thereby prevents future offences.

When, therefore, the broker enters in his book, “Boorman & Johnston sold to T. W. Jenkins & Co. 100 bales of cotton,” and the owners say, “ Messrs. T. W. Jenkins & Co. Bo’t of Boorman & Johnston 89 bales of cotton, ” the meaning is that they, the broke rs and owners sold it according to the Jcnown usages of the trade ; they sold it as other cotton dealers sell their cotton, that is, by sample: the effect of which sale is a warranty that the bulk is of equal quality with the samples exhibited when the sale was made.

If, any other contract was made, if this case was an exception to the general rule, the burthen of proof lay on the defendants. It is no answer to say that the samples were not drawn at the defendants request they were drawn by their permission, and for their benefit, as well as the benefit of the brokers. The preceding remarks embrace all which I think necessary to say upon the first three grounds upon which a non-suit was asked. The fourth point taken was, that there was no offer to return the cotton when the fraud was discovered.

It is certainly a sufficient answer that the plaintiffs do not seek to recover the consideration or purchase money, but damages for the breach of the implied warranty. A purchaser is never bound to return an

article unless the' stipulations of the contract require it, or unless he wishes to dissaffirm the contract, and recover back the money which he has paid. In this case, the plaintiffs ask no such thing; they seek to enforce the contract. The point was well taken so far as to prevent a recovery upon the common counts, had the plaintiffs claimed to recover the purchase money, but I do not understand the plaintiffs as making such a demand.

The plaintiffs are not precluded from maintaining their action, because the grounds of it would have been a good de-fence to an action upon the notes to the extent of the damage sustained. When the notes were payable, the plaintiffs had sustained no damage ; and though they may have known that a claim was made upon them by the Dorchester factory, yet it had not been established against them, and could not be set up by them against the payment of the notes ; or even if it might, the circumstances of the case did not compel them to make the defence.

The sale was made the 9th of April, 1828, at 90 days, payable about 9th July, 1828. On the 15th May, 1828, the cotton was sold to the Dorchester factory. In July, 1828, the cotton was examined, but the examination was not completed till the 8th August. The present plaintiffs were not sued until the 6th February. 1829, long after their note was paid at its maturity. It was also contended that there was a variance between the declaration and proof, because the declaration did not state the cotton was to be paid for in 90 days.

I do not consider the variance at all material; but if it was, it was no ground of nonsuit at the trial, being amendable. 2 R. S. 406, § 79. The charge of the learned judge at the trial was also excepted to, but, in my judgment, without cause. He instructed the jury to find, as questions of fact, whether the sale was by sample ; whether the brokers had authority by original appointment or subsequent ratification; or whether the plaintiffs bought upon their own examination, without relying upon the samples: these were all questions of fact, proper for their decision.

The charge was right, and all the previous decisions were right; consequently the judgment of the superior court should be affirmed. Judgment affirmed.