Carter v. Philadelphia Coal Co.
| Decision Date | 22 March 1875 |
| Citation | 77 Pa. 286 |
| Parties | Carter <I>et al. versus</I> Philadelphia Coal Co. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.
Error to the District Court of Philadelphia: No. 166, to January Term 1873.
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M. J. Micheson and T. Cuyler, for plaintiffs in error.—As to the first assignment: it was not proper to introduce new matter on re-examination: 1 Starkie on Ev., sects 231, 467 and note. The Queen's Case, 2 Brod. & Bing. 297. The evidence being irrelevant should not have been submitted to the jury: Kendall v. Lee, 2 Penna. R. 488; Kocher v. Bowman, 10 Watts 128; Bratton v. Mitchell, 3 Barr 44; Stevenson v. Stewart, 1 Jones 308. As to the third and fifth assignments: they cited Fleet v. Murton, Law Rep. 7 Q. B. 130. There being a known custom in the coal trade evidence might be given in relation to it, although not expressed in the contract: 1 Starkie on Ev., sect. 710; Webb v. Plummer, 2 B. & Ald. 746; Roberts v. Barker, 1 C. & M. 808; Hughes v. Gordon, 1 Bligh. 287; Clinan v. Cooke, 1 Sch. & Lef. 22.
G. M. Dallas, for defendants in error.
This was a suit to recover back certain commissions, claimed by, and allowed to, the plaintiffs in error on a previous settlement between the parties. It was a settlement of the business enterprise, generally, in which the parties were jointly interested; and also of the particular transaction in which the plaintiff in error claimed to have paid the commissions. On that settlement the defendant in error was found to be indebted in a sum exceeding $20,000. At this time the defendant paid a portion of the sum in which it was found to be indebted, and gave drafts for the residue, payable in a few months thereafter. More than two years after the settlement, and after the payment of the drafts, this suit was brought. On the trial the objection does not appear to have been taken that the settlement could be overthrown only on proof of fraud, mistake or ignorance of legal rights in making it; but the merits of the claim, made by the plaintiffs in error for the commissions, were inquired into, as if no settlement thereof had previously been made. The actual payment of the commissions by the plaintiffs in error was not strongly questioned; but whether they had been paid in good faith, or in a heedless and improvident manner, was the contention. They had been paid to Shoemaker & McIntyre, who were coal brokers. The plaintiffs in error sought to prove a faithful and careful performance of their agency. In furtherance of this object it was clearly evidence of good faith and prudence for them to show that they had sold according "to the usual and customary method of the Philadelphia coal trade," and that such method was to sell "through the agency of brokers, to whom a commission was paid." It was here the office of the parties was kept and their business transacted. It is urged that the offer is insufficient, inasmuch as it does not propose to prove a usage based upon a custom "which was established, uniform and general." It is true the offer is not in these precise words, yet we think the language imports substantially the same meaning. "Usual and customary" clearly import something more than casual or exceptional cases. They indicate such a fixed and established usage as to be declared general by the trade. Besides, it is not necessary to prove all the elements of a custom necessary to make a law; the object here is to interpret a contract. The usages of a particular trade or business are presumed to be known to those engaged therein. These may, therefore, in the absence of any express stipulation inconsistent therewith, be supposed to have entered into the understanding of the parties in making the contract. They furnish a most valuable aid in arriving at...
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