McCready v. Wright — 12 N.Y. Super. Ct. 571

Majority

p. 571

Nathaniel L. McCready, and others, v. Job Wright, and another.

Headnote

The custom, in the port of New York, upon the sale of grain is, that the purchaser selects a measurer, and the measurer so selected is appointed hy the board of measurers to perform the duty.

Held, that where the measurement is, in fact, made by a measurer appointed by the board, the custom is substantially complied with, and it is immaterial whether the measurer is selected by the seller or purchaser.

Held, that when the quantity sold has been ascertained by such a measurement, and the purchaser has an order for the delivery of the grain, upon the storekeeper, in whose custody it is, the delivery, so far as the seller is concerned, is com píete.

(Before Oaklet, Ch. J., Hoffman and Slosson, J.J.)

May, 1856.

The action was brought for the'recovery, with interest, of the sum of $859.98, which the complaint alleged was a balance due to the plaintiffs, from the defendants, upon the sale and delivery of 3132f£ bushels of corn.

The defendants offered to allow judgment to be taken against them for the sum of $782.50, with interest from the 1st of November, 1853. The offer was not accepted. The answer admitted that the defendants had purchased of one of the plaintiffs, P. Neefus, a quantity of corn, alleged tobe about 3,200 bushels, at the price of 84-§- cents per bushel, but averred that only 3,037 bushels had been delivered. It set up a payment of $1,800, and alleged that Neefus was the only person entitled to maintain the action, and that the other persons in whose names it was brought, were improperly joined as plaintiffs.

p. 572

The cause was heard before the Chief Justice, and a jury, in October, 1855.

The cause, upon the trial, turned entirely upon the question, as to the quantity of bushels of corn, in fact, delivered.

A joint sale, by the plaintiffs to the defendants, of a quantity of corn, in the Atlantic Bond Stores, and supposed to be about 8,200 bushels, was clearly proved.

. All other material facts, that were established by the evidence, were fully stated in the charge delivered to the jury.

When the testimony was closed, and the counsel for both parties had summed up, the Chief Justice charged the jury, as follows:

That the facts appeared to be substantially, that the plaintiffs owned a lot of corn, stored in Chadborne’s store, at Atlantic Dock, Brooklyn; that it was sold to Wright &Losee, (defendants,) and an order for it given by McCready, Mott & Co., which was handed, by the plaintiff Ueefus, to a lighterman, (the witness Conklin.) That the lighterman took the order to the board of measurers of grain. That the practice is for the president of the board to select a measurer, whom he sends to measure the grain. That the first measurer, sent by the president, measured one hundred and seventy bushels. Mr. Langdon, another measurer was then sent, and he measured the corn put on board the lighter Independence, and some put into carts. That, by order of Mr. Heefus, the measurer (Langdon,) measured the balance of the corn, and left it on the floor of the store house. That, for the purposes of the trial, he instructed the jury, that, upon such measurement by Langdon, the delivery to defendants was complete, and the property in the com vested in them. According to the measurement of Cross, it appeared that there were three bushels more in the lighter Independence, than was sent from the store, according to Langdon’s measurement. Another lighter was sent by Conklin, (the lighterman,) which took the balance of the corn. This balance was measured, when delivered at Wilson’s dock, by Mr. Cross, and there appeared to be ninety-eight bushels less than the quantity measured by Mr. Langdon, and left in the store house. That the corn may have been stolen in the store, or from on board of lighter. The question is between the measurements of Langdon and Cross. If the com left in the store house, when Langdon

p. 573

finished his measuring, 65451 bushels, the plaintiffs were entitled to recover the amount they claimed. The custom appears to be, for the purchaser to employ the measurer) and each party pay half his fees, and Ohadborne testified, that, in delivering corn on an order like this, the balance left in the store house was transferred to the purchaser, which seems to be the custom. The inquiry for the jury was simply how much corn was left on the floor by Lang-don—the measurements differ, and the jury must decide the question.

The counsel for defendants excepted to that part of the charge, whereby the Judge instructed the jury that, upon the measurement, by Langdon, of the corn left upon the floor of the store house, the delivery thereof to the defendants was complete, and the property in the corn had vested in them; and also excepted to that part of the charge, whereby the Judge stated to the jury that it appeared to be the custom that, in delivering corn on an order like that in question, the balance, measured and left in the store house, was transferred to the purchaser.

The jury thereupon found a verdict for the plaintiffs, for $975.86, being the full amount claimed by them.

Upon a case containing the proceedings upon the trial, the defendants moved for a new trial at Special Term.

The motion was denied, and the defendants appealed from the order, and from the judgment.

The cause was now heard upon this appeal.

B. W. Bonney, for the defendants.

E. W. Stoughton, for the plaintiffs.

The only question of consequence is whether the order on the storekeeper for delivery of the corn, having been handed by the plaintiffs to Conklin the lighter-man, instead of defendants, and the plaintiffs having employed him to carry away the grain, instead of leaving that to be done by the defendants, relieves the defendants from the measurement made in the store by direction of the board of measurers. The custom proved is for the purchaser to employ the measurer. That custom, carried out in this instance, would have resulted in

p. 574

the employment of a measurer by the board of measurers in exactly the way in which the measurer was in fact employed. The fact that the order was handed to the president of the board by Conklin, instead of by defendants themselves, is of no practical importance. Then was Conklin the plaintiffs’ agent, and not the agent of defendants, to carry the grain from the Atlantic Docks to Williamsburgh.

The grain was delivered to him at the docks, and defendants paid his lighterage. We think that they adopted his acts, and recognized and ratified his agency.

The measuring off the grain, and leaving it in the store house, was a delivery to the purchaser, according to the custom. All the corn that was left on the floor was delivered on board the lighter.

The difference between the parties arises from a difference between the measurement at the store and that made on the arrival of the grain at Williamsburgh. The question which was correct was left to the jury,- and they have found for the plaintiffs for the whole amount.

We think the question was properly put to the jury, and with proper instructions.

Order denying new trial affirmed, with costs.

Judgment for plaintiffs.