author: Jones, C. J. Oakley, J.

text:
    Henry Sewall versus William L. B. Gibbs and William P. Jenny.
    April Term, 1829.
    Usage of trade cannot be set up, either to contravene an established rule of law, or to vary the terms of an express contract. But all contracts, made in the ordinary course of business,- without particular stipulations, expressed or implied, are presumed to be made in reference to any existing usage or custom, relating to such trade j and it is always competent for a party to resort to such usage, to ascertain and fix the terms of the contract.
    The defendants, purchased of the plaintiff} a ceroon of indigo, at public auction. No tice was given, at the time of sale, that the indigo would be sold subject to the usual tare ef 10 per cent. The tare, in point of fact, amounted to upwards of 17 per cent. At the trial, the defendants were permitted to prove, that the indigo had been fraudulently packed, and that, in all cases of fraudulent packing^ it is the custom of the trade, to allow the purchaser the actual tare. Held, that this evidence was rightly admitted. Held also, that the defence was properly set up, under the general issue, and that the defendants could claim a deduction of the actual tare, without offering to return the indigo.
    The defendants, sometime after the purchase, paid into court a sum sufficient to cover the amount of the indigo after deducting the actual tare. Held that, as the sale in this case was for cash, the plaintiff was also entitled to interest, from the day of sale to the day of payment, and, therefore, that the amount paid into court, was not sufficient to cover the plaintiff’s demand.
    This was an action of assumpsit, for goods sold and delivered. The plaintiff sought to recover for a ceroon of indigo, which was described in his bill of particulars, as weighing 1141bs. subject to a deduction of ten per cent, for tare. The defendants pleaded the general issue, and a tender of $>' 182, on the 22d day of May, 1828. The plaintiff replied, denying the tender.
    At the trial, the plaintiff proved, that a number of ceroons of indigo had been sold for him, at public auction, on the 19th day of February, 1828; and among them the ceroon in question, to the defendants. A clerk of the auctioneer, was called, as a wit_ ness for the plaintiff who testified, that it was expressly declared, at the time of sale, that the indig'o would be sold subject to the usual deduction of ten per cent, for tare. That the ceroon purchased by the defendants weighed 1141bs. gross, and was struck off at fifteen shillings and a penny per lb. That it was not customary to deduct any fractions of a lb. for tare, and that the indigo, thus sold, consequently, came to $194.30.
    Upon this evidence, the plaintiff rested his cause.
    The same witness, being cross-examined by the defendants, stated, that the indigo in question was advertised, as the first quality of Caraccas indigo; that ten per cent, is the usual tare allowed on the sale of indigo, and that this was sold expressly at the usual tare. That the actual tare, generally corresponds very nearly, with the customary tare; but that, in this case, it exceeded the usual rate, and complaints were made by purchasers that it was excessive.
    The defendants then called a number of witnesses, who testified, that it is the custom, in selling indigo, to allow ten per cent, for tare; and, where the actual tare varies from this, two or three pounds more or less, the difference is not regarded. That, in ordinary cases, the actual tare corresponds very nearly with that allowed by custom : but where the excess, beyond ten per cent., is so great as to create a presumption, that there has been fraud in the packing, then it is the custom, to allow the whole actual taro to the purchaser. In this case, the tare was about 171bs.: one of the witnesses stated it at 17Jbs. and another at 171bs.l2oz.
    Some of the witnesses testified, that the indigo in question was, in their opinion, fraudulently packed in Caraccas» but there was no pretence, that the plaintiff was accessary £° it, or that he was in any way chargeable with fraud. It ap»eared also, that it is usual, in packing indigo, to use two or~arcc pieces of hide at the end, and along the seams of the package ; but that in this case, 53 pieces of hide were found : dll(* some of the witnesses thought, that the extra pieces w<*e fraudulently, to increase the weight of the ceroon.
    Upon the question of fraud an^ usage, the testimony was somewhat contradictory, anx’ several dealers in indigo were called by the plaintiff wbr stated, that they knew nothing of any custom, to allow tb¿ actual tare, in cases of fraudulent packing. $ome of the witnesses ated, that in packing indigo at Caraccas» the intention was, to put lOOlbs. net into the linen wrapper ; and that, as the indigo is always sold subject to tare, about ten per cent, was added to the net weight, by packing in skins. It also appeared, that the indigo in question was charged to the defendant, in the invoice, at 100 lbs- net, and that the tare on this particular ceroon, did not exceed the average of that upon the other ceroons sold at the same time. The defendants offered no evidence to support their plea of tender, but proved that they paid into court, under the rule for that purpose, $183.50, on the 22d day of May, 1828.
    The Judge charged the jury, that, if they believed that the net weight of the indigo was 97 lbs. instead of 96 lbs. and 4 oz., and if the defendants had not paid into court the amount due for the 97 lbs., together with interest, then the plaintiff was entitled to the amount due for the 97 lbs. That, at all events, the plaintiff was entitled to the amount, which the defendants admitted to be due, by their plea of tender, together with interest on that sum up to the time of paying the money into court; and the jury were desired by the Judge, in giving their verdict, to express their opinion upon the questions of fraud and usage.
    The jury returned a verdict for $183.50, in favour of the plaintiff. They also found, that fraud had been practised in packing the indigo at Caraccas, and that it is the usage, in cases of fraudulent packing, to allow the actual tare to the purchaser.

      Mr. Robert Sedgwick, for the plaintiff, now moved for a new trial, and
    1. That the evicted,, 0f ysage ought not to have been admitted at the trial. It appet..s$ from the testimony, that the indigo in question was sold at auction, at the usual tare of ten per cent.; it was offered by the plaintiff, suqect to that express deduction, and no other. The defendants, mwever$ were permitted to show, that there is a usage among deale,, l0 allow a larger deduction for tare, in certain cases. This evidei<e ;s inadmissible, because it tends to contradict the express between the parties. Proof of usage is admitted, for the purpose of giving a construction to a contract, in cases where it would not otherwise be intelligible; but if the agreement be explicit, and clear, it cannot be controlled by proof of a custom which serves to vary or contradict it. Mercantile contracts are not subject to any peculiar rules of construction, but are construed, like all other contracts, by the terms used. If their meaning be doubtful, or if it cannot be ascertained without resorting to proof oí extraneous circumstances, not apparent from the agreement itself, then a usage may be proved for the purpose of explaining the contract. In this case, the plaintiff’s terms of sale were clear and explicit. The indigo was sold under the inspection of the buyer, without fraud and without warranty, and subject to no condition except the deduction of ten per cent, for tare. Usage was not necessary to explain this contract, and the evidence upon this point was improperly admitted. [Hibbert v. Shee, 1 Camp. 113. Thompson v. Ashton, 14 J. R. 316.]
    II. There was no warranty in this case, either express or implied, that the commodity sold, should be what it purported to be. It was not a sale either by sample or description; if it had been, then the bulk must have answered the description in the one case, and corresponded with the sample in the other. But here, the seller placed the article to be sold before the buyer, for his personal inspection, without fraud or warranty, and the rule caveat emptor applies. The buyer purchased the indigo upon his own judgment, by his own skill, and the quality and condition of the article were as well known to him as they were to the seller. If the former had desired any security beyond that afforded by his own knowledge, he might have asked for a warranty, and then the latter would have had an opportunity to disclaim all personal responsibility as to the quality of the indigo. But as the express warranty was neither asked nor given, the law will not imply one, and the purchaser takes the article at his own risk. [1 J. R. 129. Doug. 665. Gardner v. Gray, 4 Camp. p. 144. Sands & Crump v. Taylor & Lovett, 5 Johns. R. 396. Smith v. Colgate, 30 Johns. R. 204. Oneida Man. Soc. v. Lawrence, 4 Cowen, 444.]

      III. As the defence in this case rests entirely upon an implied it cannot be sustained without an offer to return the goods. Where the buyer elects to keep the articles purchased, without making any offer of return, he must pay for them, at all events, and rely upon his warranty. In cases of express warranty, there should always be an offer of return, otherwise evidence cannot be admitted to prove a defect in the goods, or deterioration in their value, for the purpose of reducing the plaintiff’s demand. Where the action is upon a quantum meruit, the rule is different. [Paine v. Whale, 7 East. 274. Thornton v. Wynn, 12 Wheat. 192. Sill v. Rood, 15 Johns. R. 230. Basten v. Butter, 7 East. 479.
    The defendants should, at all events, have given notice, with their plea, as to the nature of their defence. It was their duty to have given notice, in the first instance, of the cause of complaint when discovered, so that the plaintiff might resort hack to his vendor; and he ought also to have apprised us of the defence about to be set up, in order that we might not. be taken by surprise. The defendants have neglected their duty in all these particulars, and this defence, therefore, cannot now be sustained. [Runyons v. Nichols, 11 Johns. R. 547.]
    IV. The plaintiff was entitled to a greater amount than that paid into court. The verdict was for the exact sum paid in: but the plaintiff is entitled to interest on that, amount from the time of the sale to the day of payment; for in sales for cash, interest follows a delay of payment, as matter of law, and all sales are presumed to be for cash until the contrary is shown. We are entitled, at all events, to interest on the sum stated in the plea of tender; for the plea of tender is an admission of a debt due to that amount. [Spalding v. Vandercook, 2 Wend. R. 432.]
    V. The verdict was against evidence, as there was not sufficient testimony to prove a fraudulent packing of the indigo at Calaceas.
    [Upon this point, the counsel on both sides discussed the question at large, and examined the testimony with care; but as the argument relates to a mere question of fact,- it is omitted.]

      Mr. John Anthon, for the defendants.
    The defence in this case, had reference solely to the quantity of the indigo purchased by the defendants, and the quality of the commodity was not a subject of controversy. The question related to the amount of tare to be deducted from the gross weight; and to ascertain that, the defendants introduced proof of a usage established among merchants, in the sale of indigo, to allow full tare in all cases where it has been improperly increased by fraudulent packing. The question now is, whether that evidence was properly admitted.
    I. We admit that usage cannot he introduced for the purpose of contradicting or controlling an express contract; neither was the evidence offered with any such intention. The plaintiff himself showed, that the article in question was sold subject to .the “ usual tare,” and we introduced evidence to explain what is meant by those terms, in the sale of indigo. The plaintiff proved a part of the usage, and we claimed the right to prove the whole, for the purpose of showing what our liability to the plaintiff actually was. Our inquiry related solely to the wrapper in which the indigo was contained; and we proved, conclusively, that it is the custom of merchants to allow full tare, in all cases where the weight of the wrapper has been improperly increased by fraudulent packing.
    What objection can there be to the introduction of this proof for sucli a purpose 1 In what way can the amount to be paid by the defendants be ascertained, except by the very evidence, which we brought forward? The gross weight of the ceroon was 114 lbs.; but the plaintiff does not pretend that we are to pay for that number of pounds : he admits that it is the custom to deduct ten per cent, for tare. We say, that the custom which lie admits, applies only to ordinary cases, where the packing has been honest: but in cases of fraudulent packing, like the present, the custom is, to allow to the purchaser a deduction of the actual tare horn the gross weight. In point of fact, the jury have found that we ai*e correct, as to the custom, and they have also found that the indigo was fraudulently packed at Caraccas.
    The proof of usage, then, was correctly admitted; for without it, the actual agreement between the parties could not have been ascertained. That it was a part of the contract to deduct .ten per cent, for tare in ordinary cases, is admitted; and we prove, that it is also a part of the contract to deduct the whole tare in cases of fraud. The sale, then, was by agreement of parties made subject to the usage, and in such cases, the rule is well settled that the custom may be proved. This evidence in no way-contradicts the contract; it merely explains and ascertains what it really was; and'*'so far from contravening the rules of law, it upholds the principles which are fixed and settled by decided cases. [4 Camp. 144. 1 Holt. 95. 1 Car. and Pay. 59. Ib. 392. 4 Stark. Ev. 449.]
    The cases cited by the counsel for the plaintiff, relate entirely to the quality oí the article sold: but the sole question here is, as to the quantity; and in the absence of an express contract to the contrary, the parties, by force of the custom, agreed to deduct the full tare.
    IL As to a return, or an offer to return goods purchased, the doctrine upon this subject applies solely to cases of sale with warranty. Even in such cases, there are qualifications to the rule ; but it is not necessary to examine them, because they are not applicable to the present subject. [6 T. R. 320, Cutter v. Powell.]
    We were not bound to give notice in this case, because it is not customary to return the goods; on the contrary, they are tobe retained by the purchaser, (except in cases of warranty, which the plaintiff asserts did not exist here,) and the tare is to be deducted from the gross weight. As the question relates solely to the quantity of the article purchased, the defence is properly set up under the general issue, and the plaintiff is bound to prove his claim, as in ordinary cases.
    IV. The only real question in this cause, is that which relates to interest. The jury, by their verdict, have found that the ne< weight of the indigo was 96 lbs. 4 oz. : its value, therefore, at the rate of purchase, was §181.43. The defendants paid into court §183.50, and this amount covers principal and interest up to the time of payment.
    But the jury were not bound to allow interest; that was a matter within their sound discretion, under the special circumstances of the case. The demand was unliquidated, and as there was no agreement that interest should be paid, the jury, in their discretion, might reject it altogether. The money here was not paid under the plea of tender, but was put into court subject to the plaintiff’s order, and the jury have allowed him all that he can claim either in law or equity. [4 Cowen R. 496. 6 Ib. 193.]
   Jones, C. J.

This was an action of assumpsit, to recover the amount claimed to be due for a cerooti of indigo, sold to the defendants, at 15s.Id. per pound, subject to deduction from the gross weight for tare. The leading question on the merits, turned upon the amount of tare which was to be allowed and deducted. The plaintiff’s claim, after the deduction -admitted by him, amounted to about §194.20, which the principles of the defence would reduce to §182.94. The defendants pleaded a tender of §182, but offered no proof of the tender at the trial. They, however, paid into court, under the usual rule for that purpose, the sum of §183.50, which was probably intended for the amount due on the purchase, after the deduction claimed by the parties. The Judge told the jury, that the plaintiff was, at all events, entitled to the sum which the defendants had admitted by the plea of tender to be due, with interest from the sale. The jury gave a verdict for §183.50.

By this verdict the principle of the defence was fully sustained, and the jury obviously intended to confirm the allowance of tare claimed by the defendants. I should have been satisfied with the verdict, had the jury, in settling the amount of it, conformed to the spirit of the direction they received from the Judge. But they have allowed the plaintiff the exact sum paid into court by the defendants, without adverting to the circumstance, that it does not include the full interest upon the sum admitted by their pte'a of tender, to be due from the time of the sale and delivery of the which they were instructed to allow. The direction of dge, on this point, was correct, and ought to have been observed.

The sale of the indigo was by auction, and not being shown to be on credit, is to be intended to have been for cash. The purof the sale and delivery of the article, which ought, of course, to have been allowed against him. The jury were probably led into the error by the miscalculation of the defendants, and acted upon the supposition and belief, that the full amount of interest was included in the sum paid in by them. But it is nevertheless, an error, which, unless cured by the consent, of the parties to rectify it, will compel us to set the verdict aside. A new trial, however, with our impressions against the plaintiff on the other questions in the cause, would not probably avail him. chaser was, consequently, chargeable with interest from the time

And first, the usage to which the plaintiff objects, was, we think, clearly admissible. The sole object of it was, to enable the defend-an ts to ascertain and show the quan t if y of indigofor which they were to pay the plaintiff The article of indigo in ceroous, is necessarily subject, on purchases and sales by the pound, to deductionfrom the gross weight of (he wrapper or ceroon for tare: the purchaser is, however, to pay the price of the indigo for the cerotm or wrapper in which it is packed. Now the average tare for the ceroon or wrapper in ordinary cases, when honestlyand fairly packed, has been found to be ten per cent.; hence, casual and unpremeditated variances being disregarded, that average rate has, for the mutual couvenince of dealing, been established by custom, as the rate of tare, to be allowed in all ordinary cases on sales, in the common course of business. Experience was the teacher whose counsels introduced the rule,'and when it was seen that fraud would sometimes derange its accustomed operation, and cause it to work injustice, the same unerring guide led to the modification of the general usage, by a particular custom adapted to this, emergency ; and it became by common consent, as part of the custom of the trade, that in cases of excess of tare by the fraudulent packing of the ceroon, the whole actual tare should be deducted from the gross weight, and allowed to the purchaser. The whole entire custom of the trade, then, is to allow the average tare of fen per cent, on .. . all purchases, as a matter of course, but in the special case of an undue excess by fraud in packing, to allow the whole actual tare to the purchaser. Cases of dishonesty in packing, by which the quantity of indigo is intentionally diminished by the fraudulent excess of tare, are out of the reason of the general custom, and come properly xvithin the principle of the particular custom, thus incorporated into the general usage of the trade.

The case now before us was proved by the testimony on the trial, and found by the jury, tobe one of that class ofinfectedcases, and the special usage, xvhich we hold to govern it, xvas also established by' proof and found by the verdict. On turning to the case, we find, that the tare of this*ceroon was proved to be about 17 per cent., being an excess of 7 per cent, above the average rate ; and that the jury, upon the question being specially put (o them, declared that, fraud had been practised in packing the indigo at Caraccas. It cannot, I think, be denied, that this excess of tare, and the presence of the extra pieces of useless hide proved to have been found in the ceroon, were sufficient presumptive evidence of fraud; and if so, it was a case of fraudulent packing, in which the custom is, to allow the whole actual tare to the purchaser. The question of the sufficiency of the proof of this custom, was also specially put to the jury, and they have, by their answer, distinctly affirmed its existence. On both these questions, thus specially propounded to the jury, their finding is supported by the testimony, and ought not to be disturbed.

The fraud in the packing of the indigo, and the usage consequent upon it, must, therefore, be taken as established facts in the case. But the point of the objection is, that the custom, admitting it to subsist, xvas not admissible in evidence on this issue, and the plaintiff contends in support of the objection, that by the express terms of sale, the rate of tare was to be ten per cent., and no further deduction to be allowed. But is that the contract between the parlies 1 The witness who proved the sale, testified, ’hat it was expressly declared at the time, that the indigo would be sold subject to the usual deduction of ten per cent, for tare ; andón his crossrexamination, lie says that ten per cent, is the usual tare allowed on indigo, and that this ceroon was sold expressly at the usual tare. What is there in 'the terms of sale, as proved by this witness, to affect the right of these defendants to the benefit of the usage in question 1 It xvas a sale in the usual and ordinary course of business, and the declaration that the indigo would be sold subject to the usual deduction of ten per cent, for tare, xvhich is the strongest, expression used by the witness, was no more than the formal announcement to the bidders, of the uniform rate of tare, xvhich was by the general custom established for ordinary cases, and would be applicable, in the first instance, to all sales of indigo in ceroons, by xveight. It left untouched the special usage, applicable to cases of excess of tare by fraud in packing the indigo. No immediate or prospective provision xvas made to regulate the application of the usage, in the event of the case occurring, or to modify or impair the purchasers’ claim to its full benefit.

It was not known or supposed, at the time of sale, that anj fraud or deception had been practised in packing the indigo at Caraccas, or that the tare xvould be found so excessive as to induce the presumption of fraud ; and the developement could not take place, nor the true character of the transaction be ascertained, until the ceroon xvas opened, when the fraud must necessarily be exposed. At the sale, therefore, this ceroon xvould be sold on the same terms as the rest, and the purchaser would conform to the general rule for the alloxvance of tare, until the secret fraud which distinguished it from ordinary cases, and brought it within the special usage, was discovered : but upon that discovery showing an excess of tare by dishonesty in packing the indigo, the special usage took effect and applied ; entitling the defendants, as the purchasers, to the alloxxance and deduction of the full actual tare, iñsfead of the average rate of ten per cent. JEvery such purchase and sale, in the usual course of business must be held to be made in refei ence to this usage, and if the facts and circumstances when disclosed, call for its application, it is to govern the case.

The vendor, if not himself a party to the fraud, may by contract, guard himself against the consequences of the usage ; but the agreement which protects him, must, I apprehend, in substance, provide that the risk of excess of tare by fraud, shall devolve upon the purchaser, and lie borne by him, and tire whole gross weight after the customary deduction of 10 per cent, be paid for, notwithstanding any such secret, and fraudulent excess of tare. There is certainly no such provision in this contract, nor can the terms of this sale, bv any construction, be made to indicate any such condition or agreement. It was the sale of the indigo by weight, at a given price per pound, and not by the oeroon for a gross sum. And its language refers to the state of things as then supposed to exist. No express provision was made for the case of a fraudulent excess of tare, and, as respected that contingency, the parties necessarily contracted in reference to the usage, which was to regulate their rights, in case of its occurrence.

The effect of the contract of sale, as I understand it, was, that the ordinary deduction of 10 per cent., which applied to all sales of indigo in .ceroons by weight, should, as a matter oí course, and at all events, be made, and that the excess beyond that rate, if any excess should be discovered, and should be found the clear result of fraud in packing the indigo, should also be deducted from the gross weight, so as to allow the purchasers the whole actual tare, according to the usage applicable to the case. The custom then, was not in conflict with the contract or the terms of sale, and could not be excluded on that ground. Was it liable to any other exception ?• It. is too just in its principles, and too fair and reasonable in its application, to be exposed to the charge of being at variance with any rule of law or morality. And the circumstance that the dealers in indigo, have by common consent, established it for their government in special cases of fraudulent excess of tare, bespeaks it a beneficial, just and salutary qualification of the general custom. If, therefore, the defendants were advised that it was material to their defence, they had a right to introduce it in evidence at the trial. A glance at the pretensions of the parties will satisfy us of the importance of its bearings on the merits.

The indigo being purchased by weight, and subject to tare, a just allowance was to be made for the tare before the quantity to be paid for could be ascertained: and the question chiefly in controversy, was the allowance to which the defendants were entitled on that account. The tare, in this, as in other cases, if no customary rate ha- been established, must have been ascertained by the process of weighing, and the actual tare thus asceitained, would, in such case, be the deduction to be made for tiie gross weight. But that process was too inconvenient for practice, and ten per cent, being found, by experience, to be the average tare in ordinary cases, was established by common consent, as the rate to be allowed on purchases and sales.

The plaintiff claimed the application of this customary rate to the sale in question. But the claim was repelled by the defendants, on the ground that the case was not within the priticiple of the usage which applied to ordinary purchases and sales, but that the dishonesty in packing the indigo in this ceroon, had produced a fraudulent excess of tare, and that in such cases the custom was to allow the purchasers the whole actual tare, instead of the average rate of ten per cent.; and the offer to which the plaintiff objected, was to prove that special customgin support of the defence. Now the point in dispute, was the tare to be allowed the purchaser. ■ And considering that question as controlled or materially influenced by the established usages of the trade, it becomes important to show what those usages were.

The plaintiff having, at the sale, referred to the customary rate of ten per cent., and, on the trial, shown that to be the usual allow;nee for tare on indigo, the defendants were driven to the proof of the whole custom, in explanation of the plaintiff’s evidence, and to show, that the usage admitted and referred to by him, applied to ordinary cases only where the indigo was honestly packed; but that in cases of fraud and deception, producing an unfair excess of tare, and a corresponding deduction of the quantity of indigo, the custom was to allow the whole of the actual tare to the purchasers, as a deduction from the gross weight. The usage on which the defendants relied in their defence, composed a branch or part of the custom, which the plaintiff had himself shown. It was the practice of the general custom, which applied to the purchase and sale in question. And to have held the defendants bound by the general rule, and yet to have denied them the benefit of the exception en-grafted upon it, would have been manifestly unjust. They were surely entitled to prove t hat their case did not. come within the principle of the average rate applicable to ordinary sales, but was governed by the particular usage which applied to special cases of fraudulent excess of tare, by deception and dishonesty in packing. And what testimony could be more appropriate and material to that defence than the usage they ofiered 1 It went directly and conclusively to establish the right they claim, and it let in the accessary proof to ascertain and show to the jury the true quantity of indigo actually delivered to them, and for which they were justly chargeable, and ought to pay.

The defence taken on this point by the defendants, was against the plaintiff’s claim to apply the genei’al average rate of tare to their purchase. They resisted the claim, because it exacted from them full payment of the contract price for what was never delivered to them, and their purpose was, not to discharge themselves from the obligation to pay for the indigo they received, but to reduce the plaintiff’s demand to the standard of justice, by ascertaining and showing the true quantity of the article sold and delivered by the plaintiff, and received by them. To this point their proof was directed. It was full and complete, and upon the supposition, that the custom admitted and shown „on the part of the plaintiff would, if unexplained and without qualification, stand in the way of the defendants’ proof of the fact of excess of tare, or render that proof unavailing to them, must it not be competent to them to show that the average rate of tare did not apply to them, but that in such cases of fraudulent excess as they show this to be, the custom is to allow the purchaser the deduction of the whole actual tare, instead of the ten per cent. 1 The usage and custom of the trade, both in their application to ordinary cases, and to the special case of fraudulent excess of tare, by the dishonest packing of the indigo, as explained by the testimony, appear to me to be perfectly competent,.reasonable and just, and they interposed no obstacle to the defendants’ defence. And, viewing the proof of the particular usage in all its aspects and bearings, I am satisfied that it was admissible and proper evidence.

II It was not necessary for the defendants to make any offer to return the indigo. There was no intention or desire on their part id rescind the contract;. and their defence did not turn upon any fail-lire or non-compliance of the plaintiff in respect of any warranty or covenant, express or implied, of the quality of the article. The merits of the defence rested upon grounds disclosed in the case, and which certainly did not require the return, or offer to return, the indigo. That objection, therefore, is wholly inapplicable.

III. But it is further objected, that seasonable notice was not given by the defendants of the claim for the excess of tare, on the ground of fraud in packing the indigo; and that the plaintiff, by reason of the neglect, lost the opportunity of an early application to his vendors for indemnity. Whatever consideration might, under other circumstances, be due to this complaint, it comes before us without any just pretensions to our favour. The sale was on the 19th of February, and on the 22d of May following, money was paid into court by the defendants, on the principle of their defence. It does not appear at what precise time the discovery of the fraud was made, or when notice of the defence was given, but no exception was taken at the trial to the want of sufficiency of notice. And it is too late now to raise the point. If the objection had been made at the trial, full and early notice, if held necessary, might have been shown.

The only valid objection, is the error of the jury in the amount of their verdict; but the extent of that error is ascertainable by mere calculation, and it may, by the consent of the/defendants, be amended. If they assent to the amendment, judgment is then o be entered upon it, as amended, for -the plaintiff with costs, otherwise a new trial will be granted, or the plaintiff may enter judgment on the verdict, as it stands, with costs, at his election.

Oakley, J.

(after stating the facts.) There is no ground for the objection, now made by the plaintiff that the verdict is against evidence, as the weight of the proof seems to me to be decidedly in favour of the defendants.

It is well settled, that a usage of trade cannot be set up, either to contravene an established rule of law, or to vary the terms of an express contract. (Thompson v. Ashton, 14 J. R. 316. Teats v. Pirn, 1 Holt, 95. ) But it is equally well settled, that all contracts made in the ordinary course of business, without particular stipulations, expressed or implied, are presumed to be made in reference to any existing usage or custom, relating to such trade ; and that it is always competent for a party to resort to such usage, not to vary, but to ascertain and fix the terms of the contract. In the case now before us, the indigo was sold at the usual rate of tare ; and that rate, appears to be admitted, to be 10 per .cent. If the terms of the sale had been, that no more than 10 per cent for tare, should be deducted, the purchasers would be bound by the express stipulation of the contract, in the absence of fraud on the part of the seller. I do not understand the notice given by the auctioneer, at the time of the sale, as amounting to such an express stipulation. The purchasers at the sale must have understood, when the rate of tare was announced to be 10 per cent., that reference was had to the supposed fact, that the ceroons of indigo were honestly packed; for, in such cases only, is ten per cent, the usual tare. The usage to allow actual tare, in cases of fraudulent packing is to be taken to be well understood, and the parties are to be considered as contracting in reference to it.

In the absence of any usage on the subject, the actual tare would be allowed, as the purchaser would be obliged to pay only for the real quantity of the article received. If, then, a rule is introduced by custom,' to estimate the tare at 10 per cent., without regard to the actual tare, I see no reason why that rule may not be modified, by custom, so as to confine its application to cases in which there is no fraud. The one usage, or custom, rests on the same foundation with the other. I am of opinion, therefore, that the evidence objected to was properly admitted. It was resorted to simply to ascertain the real quantity of the article sold.

It is contended, however, that there should have been an offer to return, the indigo by the defendants. This can never be necessary, unless the contract is intended to be rescinded. The contract was a valid and fair one. It was a sale of a quantity of indigo, the actual amount of which was unknown to the parties. To ascertain that amount, resort is had to the known usages of the trade, in estimating the tare to be deducted from the gross weight. The contract is admitted to be binding, and the only inquiry is, what are its terms 1 This view of the case is also an answer to the objection, that notice of the defence offered should have been given under the general issue. The plaintiff being hound to know the usage of deducting the actual tare, in cases of fraud, that usage was a part of the original contract of sale, and open to inquiry under the plea of non assumpsit. It was not matter arising subsequently to the contract, and set up to avoid it.

I think that the jury ought to have allowed interest upon the price of the indigo. It not appearing that any credit was given at the sale, it must be inferred that it was a cash sale and the defendants should have brought into court, in order to protect themselves from the costs of the suit, a sum sufficient to cover the price of the indigo, with interest from the time of the sale. They did not do this. ^Estimating the quantity of indigo at the least rate, 96 1-2 lbs., and charging the defendants with the interest, it will appear that the verdict of the jury was too small. It may be amended by the consent of the defendants. If not, a new trial will be granted, or the plaintiff may enter judgment on the present verdict, with costs, at his election.

[D. D. Field, Att'y for the plff. William Samuel Johnson, Att'y for the defts.]

Note.—Upon the subject of paying money into court, and the effect of such payment, there have been many decisions, sonie of which are not, perhaps, entirely consistent with "others. A complete digest of the English cases may be found in Starkie on Ev. [Vol. 3, part IV. p. 1094.] and in Harrison’s Index, tits. Costs” and “ Payment.” By paying money into court, the defendant, it seems, admits a cause of action to the amount paid in; and where the declaration is upon a special contract, he also admits the contract; but he does not thereby admit all the averments necessary to sustain the action. As for instance: in an action on a valued policy, where a total loss is averred in the declaration, the defendant, by paying money into court, admits the making of the policy, and perhaps the terms of it, but he does not admit thereby a total loss. This averment must be proved, or, in other words, the plaintiff must show damages beyond the amount paid in. [Rucker v. Palsgrave. 1 Taunt. 419, 1 Camp. 557.] If the plaintiff does not establish a claim to a larger sum than that paid in, upon the production of the rule, he is liable to be non-suited. [3 T. R. 657. 2 Salk. 597. 4 T. R. 10. 7 T. R. 372. 2 H. B. 374.]

In the case of Stoveld v. Bruvin and another, [2 B. & A. 117.] the reporter’s note says, that “ payment of money into Court generally on the whole declaration, ad- “ mits the contract as stated in each count, and a breach of it, and that something “ is due on each count thereon; but it does not admit tha amount of the breach “ there stated.”

In the case of the Bank of Columbia v. Southerland, [3 Cowen’s R. 336.] the court held, that where money is properly paid into court under a suitable rule, the sum paid in, is to be considered “ as stricken out of the declaration. It is a defence “ pro tanto, and unless the plaintiff proves a sum beyond what is paid, there should “ be a verdict for the defendant.”


source: Caselaw Access Project

author: Oakley, J.

license: Public Domain

text:
    Robert Rankin and John Rankin versus The American Insurance Company of New-York.
    April Term, 1829.
    Although usage may be resorted to, to fix the sense of particular terms, in a policy of insurance, where they have acquired a peculiar meaning, as between assurers and assured, yet, it can never be set up, to affect or vary an express agreement, nor to contradict a rule of law.
    Therefore, in an action, upon a policy of insurance, where the claim was for damage ' sustained by the perils of the sea, and on the arrival of the goods at New-York, they were landed, before the wardens of the port had held a survey upon them$ the defendants were not allowed to prove, either as an objection to the preliminary proofs, or in bar of the action, that “ by the usage of trade, in the port of “ New-York, the master of the vessel, is responsible for damages sustained by “ goods, delivered by him to the owner, or consignee, unless there has been an “ actual survey, on board the vessel, by the port wardens, by which it shall have “been found, that the . goods were properly stowed, and were damaged on the K voyage by the perils of the sea ; and that, by a similar usage as between as- “ suers and assured, the survey so made is a document indispensable to be produced, in order to charge the underwriters, and that the preliminary proof is “ deemed insufficient, unless such a document is exhibited as a part ofit.”
    A stevedore, employed by the master to stow the cargo, is a competent witness to prAe that it was properly stowed.
    This was an action upon a policy of insurance, made by the defendant, on account of-, bearing date the 14th of September, 1825, on merchandise ; each package of which, not excepted in the memorandum, was to be subject to its own averages bs if separately insured. The goods were to be shipped prior to the first of April, 1826, on board of any vessel or vessels from Liverpool, or London, to New-York, and the sum subscribed to the p0pCy wag $30,000.
    The cause was tried before the Chief Justice, and at tbe trial, the plaintiffs produced the same preliminary proofs, whichthey had previously (and within a proper period) exhibited to the defendants. These consisted,
    I. Of a bill of lading, in tbe ordinary form, of three packages of merchandise, containing skivers , shipped by William and James Brown & Co., at Liverpool, and consigned to John Rankin, at New-York. II. An invoice of those articles.
    HI; An affidavit madé by the first mate of the ship Corinthian, in which the goods were imported, setting forth, that the cargo of that vessel, was well and sufficiently stowed at Liverpool, by a competent stevedore, and that, if any damage came to any part of the goods on board, it must have arisen from causes not to be attributed to the ship, or the stowage of her cargo.
    IV. A certificate signed by George G. Coffin, master warden of the port of New-York, and the clerk of tbe board of wardens of that port, setting forth that two of the wardens, at the request of Mr John Rankin, “ had been in store and taken a strict and careful “survey” of three cases of merchandise, imported in-the Corinthian, and damaged by being wet with sea-water, on tbe voyage of importation. The certificate then set forth, that the goods had been sold at public vendue, under the inspection of one of the wardens of the port, for the sum of four hundred and forty dollars.
    V. A protest made on the 7th of February, 1826, by a notary in New-York, upon the testimony of the master, mate and steward of the Corinthian, setting forth the departure of that vessel"from Liverpool, with her cargo-on board, on the 30th of November, 1825 -; that she encountered much bad weather on her voyage, shipped many seas, and'was much strained.
    VI. An appraisement of;the articles, shewing that they would have been worth, in a sound state, nine hundred and sixty dollars.

      VII. A statement of the claim for loss, exhibited to the defendants on the 4th of February, 1826, by John Rankin. VIII. acc'int of the sales of the damaged articles. IX. Proof of interest in the plaintiffs. X. The policy as herein before set forth.
    When these preliminary proofs, were originally presented to the defendants, they refused to pay the loss, upon the ground that they were defective : and their counsel at the trial objected to their sufficiency, first, beca use there was no evidence to show that the goods had not been injured previously to their being laden. Secondly, because there was no proof to show that the goods had been properly stowed; and thirdly, because ther was no evidence to show, that the goods had been examined and surveyed on board of the vessel after her arrival at New-York, and before their delivery to the consignee.
    In support of the last objection, the counsel for the defendants offered to prove, that by the established usage of trade in the port of New-York, and in other ports, the master of the vessel is, in all cases, responsible for any damage sustained by the goods delivered by him to the owner or consignee, unless there has “ been an actual survey made on board the vessel, by the war- “ dens of the port, or other officers, and, on such survey, the sur veyors shall have found that the goods were properly stowed, and were damaged on the voyage by the perils of the sea. That‘ by a similar usage, as between the assurers and the assured, the survey, so made by the wardens, is a document indispens able to be produced, in order to charge the underwriters, and that the preliminary proof is deemed insufficient, unless such document be exhibited as a part of it.”
    The presiding Judge rejected the evidence so offered, and decided that the preliminary proofs were sufficient. To this opinion the counsel for the defendants excepted.
    The plaintiffs then introduced their evidence in chief, and among other testimony, read the deposition of one William Guin, the stevedore who stowed the cargo of the Corinthian at Liverpool, and who testified, as to the condition of the cargo, when it was shipped, and as to the manner in which it was stowed. The counsel for the defendants objected to the testimony of Guin, Pon the ground, that he would be liable for any damage, arising the bad stowage of the cargo: that his evidence, as it , , . . ,. , , . „ tended to charge the underwriters* would discharge himself from ch liability, and that he was, therefore, interested in the event of the suit.
    This objection was overruled by the Judge, and his opinion excepted to by the counsel for the defendants.
    The plaintiffs then introduced the depositions of several persons examined at Liverpool and Manchester, under a commission issued for that purpose* and called witnesses also to show the condition of the packages in question, at the time of the importation.
    From the evidence, obtained in England, it appeared, that the goods were purchased by the plaintiffs at Manchester, and forwarded from thence to Liverpool in boats, in the usual mode, to be there shipped. It was proved that the articles were in perfect order, when packed at Manchester, and their external appearance at Liverpool did not indicate that any injury had happened to them, on their passage to that place, from Manchester. They were not particularly examined at Liverpool, and the witnesses woiild not take it upon themselves to say, that the goods could not have been damaged, before they were shipped at that port. The stevedore and others testified, that the cargo of the Corinthian was properly stowed, and that there was no appearance of any injury to the packages, at the time of their shipment. It further appeared, that the vessel encountered much tempestuous weather on her passage, and that other parts of her cargo were damaged. When the packages were landed at New-York, there was no external appearance of injury, but upon their being opened, the damage was immediately visible. The goods were much spotted, and the injury appeared to have been produced by dampness.
    One of the wardens of the port of New-York testified, that he, together with another warden, examined the goods in question, after their arrival in the store of the plaintiffs, and at their request, on the 21st of January, 1826. After a survey, they reported to the wardens’ office, that they were damaged on the voyage of importation, but they did not report, that they were damaged by seawater, as the certificate showed, and the witness supposed that the injury was occasioned by moisture, produced by exhalations from water in the vessel. The survey was made for the-purpose of procuring a remission of duties, and the cause of damage was not, therefore, accurately ascertained by the wardens.
    The plaintiffs also produced other testimony to the same point, which, although it did not demonstrate that the goods were not damaged before their shipment at Liverpool, was yet sufficient to allow the jury to draw the inference, that the injury was sustained after the shipment, on the voyage of importation, and from the perils of the sea.
    On this state of facts, the counsel for the defendants moved for a non-suit, upon the ground, that the plaintiffs had not made out a case of loss by the perils of the sea. This motion being denied, an exception was taken to the opinion of the Judge.
    The counsel for the defendants then offered to prove, in bar of a recovery, on the part of the plaintiffs, the same general usage of trade, which they had before offered to prove in support of their objections to the sufficiency of the preliminary proofs.
    The Judge decided, that the evidence so offered was admissible and might be received, as matter proper for the jury, in determing the question as to the stowage of the goods on board the vessel, or their condition at the time they were shipped or delivered, or the want of good faith on the part of the master, or other persons, on board the vessel. but that, if the fact of such usage should be established, the departure from it in this instance, was not a conclusive bar to the plaintiffs’ right of action.
    The counsel for the defendants declared, that they offered the proof of such usage solely as a bar to the right of action, on the part of the plaintiffs, and not for the purpose, for which it had been ruled by the Judge to be admissible.
    The evidence, under this view of the case, being overruled, the counsel for the defendants again excepted to the decision of the Judge. The cause was then submitted to the jury, who found a verdict for .the plaintiffs.

      Mr. J. Duer, on the part of the defendants,
    now moved for a new trial, and contended, that the parol evidence of usage should jiave ]3een received. If not admissible to show the insufficiency preliminary proofs, it ought to have been received in bar of the action. The objection is, that such proof would vary the terms of the written contract. But usagé of trade may be proved, for the purpose of giving a construction to the Contract, and even to fix upon it a meaning different from that which the words would otherwise import. The parol proof, in such cases, does not vary the contract: it only explains it, and shows the sense in which the terms are used. [2 Salk. 443. 2 Doug. 510. 1 Ves. Sen. 457. Robertson v. French, 4 East. 135. Coit v. Com. Ins. Co., 7 Johns. Rep. 387. 7 Cow. Rep. 202. Phil. on In. 14. 487. 2 Marsh on In. 707. 3 Stark. Ev. 1034 and 5.]
    The usage, which the defendants offered to prove, was reasonable in itself, and is not opposed by any suggestions of policy. In cases of damage to goods on their voyage, the master and owner of the vessel ar e,prima facie, liable for the injury, from the terms of the bill of lading. What ought the proof to be which is to discharge them from this liability ? Not such evidence as was offered at the trial; for if that be sufficient, the master will never lack the means of defending himself against every attempt to make him responsible.
    The usage in question does not prevail, perhaps, in foreign ports, although there are others analagous to it. But if it prevails here, it is sufficient; for the contract was made where the usage obtains, and in reference to it. Besides this, the usage is recognized by the statutes which establish wardens of the port. [2 R. L. 459. vol. 5, 11 a. p. 42, ch. 18.] The act points out the duties of the wardens, and directs that damaged goods shall be sold under their care. If the usage were not founded in justice and good sense, it would not continue ; and when a mercantile contract is made at a place where an established usage prevails, having reference to the subject of the contract, the law considers the usage in some cases as part of the contract, and, at all events, the contract is subordinate to the usage. So in this case, there was an existing usage, well known to the plaintiffs, which they might have complied with, without injury to themselves, and in a manner which would have given satisfaction to all parties. But it has been . „ , wholly disregarded by the plaintiffs, and they have thus voluntarily deprived themselves of the evidence, which the law requires to establish their claim.
    II. The deposition of William Guin, the stevedore at Liverpool, ought not to have been read in evidence, because the witness had a direct interest in the event of the suit. He was the only witness who testified that the cargo was well stowed, and although he may not be prejudiced by the result of this action, yet, if the defendants prevail, and an action were brought against the master upon the bill of lading, and a recovery were had against him, the stevedore would be liable over to the master. But if the plaintiffs prevail, then there can be no action against the master, for this recovery-will be conclusive in his favour. The stevedore, therefore, is directly interested in the event of the suit. [5 Bos. & Pul. 374, Simmonds v. Delacour.] There are cases, it is true, where an agent may be called as a witness from necessity; but where the same facts may be proved by other persons, then the agent is not an admissible witness. An agent can never be called to disprove his own imputed negligence, neither can the master of a vessel be permitted to disprove barratry. [3 Stark. on Ev. 1184. Ib. part 4, 768, and note; also, p. 1730 of same book.]

    In this case, the record of recovery against the insurers would be conclusive in favour of the stevedore, if an action were to be brought against him by the master for negligence; and he was not called from necessity, for the same facts might have been proved by other witnesses, or by a survey. A witness can never be called to prove his own diligence, and yet this stevedore was produced for the express purpose of showing, that he discharged his own duty with fidelity and skill. He was not competent by the roles of evidence, and his deposition ought not to have been read to the jury.

      III. The plaintiffs did not produce the best evidence attainable to establish the loss, and that which was adduced, did not affirmatively show it: the motion for a non-suit ought, therefore, to have been granted.
    There is no better rule of evidence, and none better established, than that the party shall produce the best evidence in his power. If the party has better evidence, and refuses to produce it, the inference is, that the evidence, if produced, would be against him. Here the plaintiffs called a seaman to prove that the vessel encountered bad weather, but it is not pretended that the injury arose from this cause. Why did they not discharge the master and call him, or why did they not call the mates and seamen, to show the actual condition of the goods, both at the time of shipment and at the time of delivery 1

    True it is, evidence was produced from Manchester and Liverpool, to show, that so far as the witnesses knew, the goods were shipped in good order at Liverpool. But these witnesses could only say, that the goods, when they arrived at Liverpool, were, to all external appearance, in good order. But that proved nothing; for the packages were not externally injured when they arrived in New-York. The plaintiffs were bound, therefore, to show, not only that the goods were properly packed at Manchester, but that they were safely transported to Liverpool. Not having done this, the inference is, that the goods were damaged on their passage from Manchester to Liverpool, or before their shipment on board the vessel.
    The evidence, surely, was not sufficient to charge the master, and the plaintiffs were bound to produce, at least, as much evidence against the defendants as would have been sufficient to render the master liable. The verdict is not, therefore, sustained by the proof, and upon every principle, there ought to be a new trial.
    But the plaintiffs were bound, at all events, to produce the certificate of a survey on board the vessel by the wardens, among their preliminary proofs, and in this respect they were fatally defective.

      Mr. Slosson, for the plaintiffs, contra,
    contended, that the preliminary proof of loss was sufficient. The sufficiency of evidence, is a question of law for.the Judge; and proof as to the existence of a usage, v hiv h could only he tried as a fact by the n jury, was clearly inadmissible. [11 Johns. R. 259. 9 Ib. 192, Phil. on In. 498.]
    Preliminary proof is merely reasonable information, given at the time of the loss, and before the proofs in chief can be obtained. It is furnished for the purpose of putting the defendants upon enquiry, so that they may decide, whether to pay within the thirty days or not. The defendants can never offer facts to the Judge, to contradict the preliminary proof, because such facts are always evidence in chief, to be submitted to the jury. [Haff v. The Col. Ins. Co.] If the defendants are right, the plaintiffs never can recover, because the survey was not held on board the vessel, and, of course, their preliminary proofs must forever remain in-, sufficient.
    II. The usage which the defendants offered to prove, was inadmissible to control or defeat the express contract between the parities.
    The jury have found, from the evidence before them, that the goods insured were injured by the perils of the sea, and the defendants now seek to vary the terms of their own agreement, by proving a usage which is to control it. They seek to incorporate it into the contract. But the usage contradicts the contract; it alters it in its most essential features; it makes a new proviso. Is the right of the plaintiffs to recover, to depend upon a certificate of the wardens of the port of New-York, over whom they have no control,—and that too in relation to facts which are not, and cannot be, within their personal knowledge 1

    It is a fixed rule of law, that nothing can be introduced into this solemn instrument, which the parties have not themselves put there, in express terms. Under the rotten clause, the survey is incorporated into the policy by express agreement; but here it is sought to bring, by custom, a new proviso into a written contract, and, in fact, to change the agreement entirely.

      But the consequences to which this must lead, are not to be overlooked ; for the usage, if it can discharge the defendants, must be extensive enough to charge the master. This cannot be. [10 Mass. R. 26, Homer v. Dorr. 2 Johns. R. 335, Frith v. Barker.]

    Usage, if it exist, may well apply to the mode in which a contract is to be performed. As for instance: to depart with convoy, to stop at the usual ports for refreshments, &c. But in these cases the usage is not brought in to explain the contract, or the manner of its performance ; but it establishes the proof which the plaintiff must produce before he can recover. No case can be found to sustain this demand.
    The proof of the usage is not only illegal, but the usage itself is wholly unreasonable. In what manner are the rights of the plaintiffs to be concluded 1 By the acts of a third person 1 The omission of the Master to call a survey on board his ship, is to defeat the. right of the plaintiffs to recover against the underwriters!
    Suppose the wardens had certified that the goods were not damaged on the voyage of importation, and that they were improperly stowed,—could that certificate have concluded the plaintiffs 1 The defendants have agreed, that if damage be sustained by the plaintiffs, they will indemnify them. The plaintiffs have a right to prove that damage in their own way, to the satisfaction of the proper tribunals, It such a certificate had been presented among the preliminary proofs, it would not have debarred the plaintiffs from recovering under their proofs in chief.
    Suppose the certificate had been in favour of the plaintiffs— would that have concluded the defendants 1 The rights of no man can be concluded before he has had an opportunity to be heard. [The Mary, 9 Cranch. 136, 142. 15 Johns. R. 140. 1 Stark. on Ev. pt. 1. Sec. 70, 72, p. 96.]
    Among the proofs in chief, the Judge offered to receive the evidence for every purpose, extept as a conclusive bar to the action. The defendants declined this offer, and' we are brought to the naked point, whether this usage, if proved, be not. a bar to the action. [Hoffman, J. Can any case be found to sustain this position? Slosson. Not one.]

      The want of a protest is never a bar: it is proper evidence to show neglect or want of good faith, but it lias never been eonsidered as any thing more than evidence for I be jury. Where the parties, by express agreement, substitute the wardens’ survey for all other proof, it may be binding, but otherwise it cannot be.
    III. The testimony of Guin, the stevedore, was properly admitted, as well on the ground of necessity, as because ,the verdict in this cause could not be evidence for or against him. He was employed by the master, and was, as to the owners, a sub-agent. The owners could not sue him, but their remedy would be against the master.
    The plaintiffs were not bound to show, that the cargo was properly stowed : that will be presumed in the first instance ; but being willing to support the affirmative, they called the person who best knew in what condition the cargo was. The witness had no interest even in the question, and, a fortiori, he had none in the event of the suit.
    The rule upon this subject, as laid down in the 3d of Johns. Cas. (82,) and in the 14t.h Johns. Rep. (79,) is well established on principle ; and the verdict in this case could not be given in evidence in another suit against the witness, either as to the fact of negligence, or as to the quantum of damages : neither would the success of the plaintiffs, in this cause, be evidence in his fa-four, especially when procured by his own testimony. If he were sued by the master, this record could not be evidence against him, for he is neither party nor privy. This is an action of assumpsit; that would be in tort, for negligence. It is an acknowledged p ineiple, that no verdict can be given in evidence against a party unless it might also be given in evidence for him: and here it will not be pretended, that this verdict could be evidence in favour of the witness.
    But the witness is, at all evenst, competent from necessity. [2 Stark. pt. 4, 767.] He was a mere agent, for a specific purpose ; so is the master, so are the mates, and so are the seamen. The same rule, which will exclude one will exclude all, and the plaintiffs might thus be deprived of every witness; for each agent is responsible, in some degree. The quantum of interest, cannot vary the rule, and the witness is admissible upon the clearest principles of evidence.
    [Hoffman, J. It is the common practice to call the stevedores, ^ , , . , n to show the manner m which the cargo is stowed.]
    IV. There was sufficient proof, to show affirmatively, that the injury to the goods arose from sea dan age, and the jury were competent to weigh all the circumstances tending to establish that fact. The goods were packed in perfect order, at Manchester; they were forwarded to Liverpool, by the ordinary passage boats, and received there, apparently, in good condition. The vessel in which they were shipped, encountered bad weather on her passage, and other parts of her cargo were damaged by salt water. The inference is irresistible, therefore, that these goods were damaged on the voyage of importation. At all events, the tribunal most competent to decide this question, has put it at rest by their verdict; and in the absence of all evidence on the part of the defendants, this court will not disturb the decision.

      Mr. Duer, in reply.
    If the contract implied by the usage, would be valid when inserted in the policy, then it is also valid if the usage can be clearly proved. The contract is made in reference to the usage, which is within the knowledge of both parties, and it is considered by the law as if it were incorporated into the written agreement. It is a part of the contract, and the parties, in contemplation of law, had the usage in view when the policy was executed. It is, therefore, available to the defendants, in the same manner in which it would be, were the usage expressly referred to by the terms of the agreement.
    It is said by the counsel for tire plaintiffs, that it is unreasonable to require, that the evidence of sea damage should be produced by third persons, who may withhold it. But the argument proves too much ; for the same objection would apply to the preliminary proofs, and yet there can be no cause of action until these are made satisfactory to the Judge. There is no hardship in requiring that the goods should be left on board the ship, until a survey could be held ; and, if they are removed before that can take place, the removal is tantamount to a declaration, that they are free from sea damage.
    As to the evidence of the stevedore, the effect of a verdict in favour of the plaintiffs, would be to discharge him from his liability. It would prove that the goods were well stowed, and the defendants could maintain no action against him. As an agent is admitted as a witness only from necessity, take away that necessity, and he becomes incompetent. Here there was no necessity for calling the stevedore, and his testimony ought to have been rejected.
   Oakley, J.

This was an action on a policy of insurance on goods shipped from Liverpool to New-York. The claim was for damage sustained by the perils of the sea. On the arrival of the ship at New-York, the goods in question were landed before the wardens of the port had held a survey upon them.

At the trial, an objection was made, that the preliminary proofs were insufficient, because such a survey was not shown ; and in support of the objection, the defendants offered to prove, that “ by the usage of trade of this port and other ports, the master “ of the vessel is, in all cases, responsible for any damage sustain- “ ed by goods delivered by him to the owner or consignee, unless there has been an actual survey on board the vessel by the port wardens, by which it shall have been found, that the goods “ were properly stowed, and were damaged on the voyage by the perils of the sea; and that by a similar usage, as between assur- ers and assured, the survey so made, is a document indispensible to be produced, in order to charge the underwriters: and “ that the preliminary proof is deemed insufficient, unless such a document is exhibited as a part of it.”

The Judge overruled this objection, and held the preliminary proofs to be sufficient, and, I think, correctly.

The clause in marine policies, requiring preliminary proof of interest and loss, has always been liberally expounded, and is construed to require only the best evidence of the facts possessed by the party at the time. [Barker v. Phœnix Ins. Co. 8 Johns. R. 317. Lawrence v. Ocean Ins. Co. 11 Johns. R. 260.] The siifli dency of it, is always a question of law, to be determined by the Judge at the trial; and no evidence can be then received to alter the character or effect of the proofs exhibited to the defendants.

In the present case, the Judge was called upon to hear evidence of a usage controlling the construction of the policy, so as to render necessary the production of a particular document as a part of the preliminary proofs. If such evidence had been admitted, counter evidence on the part of the plaintiffs, to repel the usage, must have been gone into; and thus the Judge would have been drawn into the trial of a fact, instead of confining himself to the decision of the law, as arising upon the state of the pro of, as exhibited by the plaintiffs. This, in my judgment, is clearly inadmissible.

The usage in question, if it could avail the defendants at all, would be a bar to the plaintiffs’ right of action; and in this view, it was also offered to bé proved at the trial. The Judge again properly rejected it.

The rule as to the admission of usage, to control the construction of a policy, seems to be, that it may be resorted to, to fix the sense of particular terms in the instrument, where they have acquired a peculiar meaning, as between the assurers and assured. [Coit v. Com. In. Co. 7 Johns. R. 389.] In this light, its effect is not to alter the contract of the parties, but merely to ascertain what that contract is. But it is well settled, that a usage can never be set up to affect or vary an express agreement; nor to contradict a rule of law. [Frith v. Barker, 2 Johns. R. 335. Homer v. Dorr, 10 Mass. R. 26. Phil. on In. 17, 18.]

By the terms of the policy in the present case, the defendants bound themselves to pay all damage to the property insured, arising from the perils of the sea: and the attempt now made, is to introduce into the contract a condition, that they shall not be responsible, unless such damage is ascertained in a particular mode, and that, too, by the act of third persons, over whom the assured have no control. Such a condition would, in my judginent, vary the legal obligations of the defendants, as ascertained by the plain language of the policy. It would be creating a condition precedent to the plaintiffs’ right of recovery, where the contract itself expresses none.

The usage in question, is also, in my judgment, unreasonable. The survey, when produced, is not to conclude either party, as to any fact stated in it. It is not to be evidence on the trial, even prima facie, for or against either party. The non-production of it is to be fatal to the plaintiffs’ action; but when produced, it is to prove nothing.

An objection was also taken at the trial by the defendants to the competency of the witness, Guin. He was the stevedore employed by the master to load the vessel at Liverpool, and was examined to prove that the cargo was properly stowed. It is contended, that he was interested to support the plaintiffs’ right of recovery.

The general rule on this subject, as laid down by the Supreme Court, is, that “ if a witness will not gain or lose by the event of the cause, or if the verdict cannot be given in evidence for or “ against him, in another suit, the objection goes to his credit “ only, and not to his competency.” [ Van Nuys v. Terhune, 3 Johns. Ca 83. Case v. Reeve, 14 J. R. 81.]

The witness, in the present case, is clearly not excluded by this rule. He gains or loses nothing by the event of this suit, nor can the plaintiffs’ recovery release him from his responsibility for any negligence committed by him, as the agent of the master. Nor can the verdict or judgment in this cause be given as evidence, in any action against, him, either to establish the fact of such negligence, or to ascertain the amount of damages. “ It is a “ general, if not universal, principle, that a suit between two per- “ sons, shall not bind or affect a third person, who could not be “ admitted to make a defence, to examine witnesses, or to appeal “ from the judgment.” [Case v. Reeve, 14 J. R. 81.] A verdict or judgment in an action, is evidence in another, only for or against privies in blood, or estate, or in law. [Ibid.] The witness in the present case is neither. He was merely an agent of the master, and as such, is competent to testify as to all matters in the ordinary course of his agency. [2 Starkie on Ev. 767.]

If the action had been directly against the master for negligence in the loading of the vessel, his immediate agent in the performance of that work, would not have been a competent witness for him, without a release; for, in case of a recovery against , , . , _ ... . . him, the verdict might be given m evidence against the agent, to ascertain the amount of damages. [Green v. The New River Company, 4 T. R. 590. Case v. Reeve, 14 J. 82.] Here the master is no party to the suit, and the fact of negligence, in the loading of the cargo, is not directly in issue. The witness, in my judgment, was properly admitted.

An objection was also taken, that the evidence did not support the plaintiffs’ right of action; but there was some proof of damage to the goods, by the perils of the sea, and it was properly-submitted. to the jury, who were the proper judges of its sufficiency.

Motion for new trial denied.