Baker v. Squier — 8 N.Y. Sup. Ct. 448

Majority

p. 448

HENRY J. BAKER, Respondent, v. WILLIAM S. SQUIER and others, Appellants.

Headnote

Custom, of Trade — when allowed to eaplain contract— Genuineness of papm'—what evidence of, admissible—Lost paper — what efforts to find, required to allow introduction of copy in evidenee.

A usage of the trade in which a contract is made, may be shown to explain the meaning of a particular contract, but not to contradict its plain terms.

On the question of the genuineness of a certificate, evidence that a great number of such certificates had been received in the trade as genuine, is sufficient evidence upon which to allow .the question to go to the jury.

On introduction of a copy of a paper in evidence, where the paper is of little value, less diligence is demanded in attempting to produce or find the original, because the circumstances aid the presumption of loss.

Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed hy the court.

The facts appear in the opinion.

Winchester Britton, for the respondent.

George P. Andrews, for the appellants.

This action was brought for a refusal to receive goods, sold to the defendants by a bought- and sold note. The goods' were described in the contract, as 225 tons “ Kurtz forty-eight to fifty per cent carbonated soda-ash.” The ash was to be shipped from Liverpool to New York, at the rate of twenty-five tons monthly, and each shipment was to be treated as a-separate contract. The

p. 449

vendors notified the plaintiff of the first shipment, stating, “ the test is forty-eight per cent.” The vendee refused to receive the property, upon the ground that the test was only forty-eight per cent, when the contract called for forty-eight to fifty per cent.

Thereupon the vendors tendered the soda-ash, with a certificate of the test, purporting to have been issued by one Hussan & Arrot, showing the test to be forty-eight. Evidence was given on the part of the plaintiff, tending to show an established and universal custom in the trade, by which the terms, used in the contract, were understood to mean, that the soda-ash was to be of the manufacture of one Kurtz, and was to possess at least forty-eight per cent of alkali, which was to be, according to the test of certain English chemists, recognized and known in the trade, whose certificates were attached to the invoices and received as evidence of the test; and that the test of forty-eight per cent was understood to satisfy the contract. Messrs. Husson & Arrot were chemists, known to the dealers in the article, and their certificate was recognized in the trade, as a compliance with such a contract.

The defendants received the residue of the soda-ash, which arrived at Hew York by seven different shipments, upon the certificates purporting to be those of Husson & Arrot. The soda-ash, embraced in the shipment in question, after having been duly tendered to the defendants, was sold by the vendors, after due notice to the defendants; and this action is brought to recover the difference between the contract-price and the price brought at the sale. The exceptions of the defendant, to which our attention is called, relate to the proof of the custom of the trade, and to the genuineness of Husson & Arrot’s certificates.

We' think the custom was properly admitted in evidence. A person, engaged in a particular trade, is presumed to be acquainted with the usages of that trade, and to contract with reference to them. And the usage of the trade in which the contract is made, may be shown, to explain the meaning of a particular contract, but not to contradict its plain terms. The figures, forty-eight to fifty per cent, convey no meaning to a person ignorant of the subject-matter of the contract, and of the. usages of the trade in which it was made. And the evidence of the custom was to explain the meaning of those terms or figures, when used in such a contract,

p. 450

and did not tend to vary the import of the contract, so far as its terms were expressed.^[1]

The defendants also object, that the genuineness of the certificate of Husson & Arrot, was not proved. There is no evidence of any person, who had seen Husson & Arrot write, or had corresponded with them, but there was the evidence of several dealers in the trade, to which the contract related, to the effect that numerous of such certificates (as one witness says, thousands) had passed through their hands, and had been acted upon by them, and received in the trade, as genuine. This, we think, was sufficient evidence to go to the jury, on the subject of the genuineness of the certificate.^[2] The only remaining question, made by the defendants, grows out of the fact that a copy of the certificate of Husson & Arrot, was used on the trial, instead of the original. It appears, however, that it was customary to attach these certificates to the invoice, or bill of sale, and thus they passed into the hands of the purchaser, and were not preserved by the seller; and the witnesses in this case, were unable to trace the certificate, and some evidence was given tending to show that it was probably lost or destroyed.

Where a paper is of but little value, less diligence is demanded in attempting to produce or find the original paper, because the circumstance aids the presumption of loss. In this case, it appeared that the article to which the certificate related, had been sold, and, presumptively, that the certificate went with the invoice; and from the time which had elapsed, the article to which it related, had probably gone into general consumption. We think, therefore, that the circumstances,- together with the evidence given, afforded a sufficient presumption of the loss or destruction of the original certificate, and that" it was beyond the reach of the plaintiff.

The judgment must be affirmed.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed.

* 1 Greenleaf’s Ev., § 292.

† † 1 Greenleaf’s Ev., § 577; U. S. v. Kean, 1 McLean, 429 ; Burnham v. Ayer, 36 N. H., 182 .