Charles Bliven and Edward Mead, Plaintiffs In Error v. the New England Screw Company

• Citation: 64 U.S. 420,23 How. 420,16 L.Ed. 510
• Parties: CHARLES BLIVEN AND EDWARD B. MEAD, PLAINTIFFS IN ERROR, v. THE NEW ENGLAND SCREW COMPANY
• Decision Date: 01 December 1859
• Court: United States Supreme Court

64 U.S. 420

23 How. 420

16 L.Ed. 510

CHARLES BLIVEN AND EDWARD B. MEAD, PLAINTIFFS IN ERROR, v. THE NEW ENGLAND SCREW COMPANY.

December Term, 1859

THIS case was brought up by writ of error from the Circuit Court of the United States for the southern district of New York.

Bliven was of Westchester county, and Mead of Brooklyn, in the State of New York, and the New England Screw Company were a corporation created by Rhode Island. The suit was brought by Bliven & Mead in the Supreme Court of the State of New York, and removed by the defendants into the Circuit Court of the United States. The Screw Company brought an action against Bliven & Mead in the Circuit Court, which will be the subject of the case next reported. The suit by Bliven & Mead was against the company for not furnishing them with screws enough; and the suit by the company against Bliven & Mead was to make them pay for what had been furnished. Both suits grew out of the same series of transactions, which are fully stated in the opinion of the court. The judgment of the court below, in both cases, was against Bliven & Mead, and hence both were brought up to this court.

They were submitted on printed arguments by Mr. Wright for the plaintiffs in error, and by Mr. Stoughton and Mr. Jenckes for the defendants in error.

The following were the points made by the counsel, respectively:

Points for Plaintiffs in Error.

I. The specific contracts on which the screws for the recovery of the value of which suit was brought, neither of them having been fulfilled, no recovery can be had for the partial performance.

2 Kent's Commentaries, 509.

See Note a, and cases cited.

II. The delivery of the full quantity of goods agreed upon cannot be excused by any custom to deliver only a part.

Linsley v. Lovely, 26 Vt., (3 Deane,) 123.

Schooner Reeside, 2 Sumner, 567.

III. The custom (as well as the contract) must be mutual. Bliven & Mead might with equal propriety set up a custom, when they order 10,000 gross of screws, to receive but 1,000, as the New England Screw Company, on accepting such order unconditionally, to deliver only the smaller quantity.

Here the custom alleged was all on one side. If screws fell in price, Bliven & Mead were obliged to receive the whole. If the screws rose in value, Bliven & Mead could only claim what the company, in its discretion, saw fit to deliver them. Such rise took place.

See Holford v. Adams, 2 Duer, (N. Y.,) 471.

IV. The custom proved was illegal as dangerous, and contrary to the policy of the law.

1. It varied express and written contracts.

Hone v. Mutual Safety Ins. Co., 1 Sanford's Superior Court Rep., 137.

The Reeside, 2 Sumner, 569.

2. The delivery of goods at the time and in the quantity expressly agreed on is as obligatory as the payment of money. A debtor's custom to pay his debts 'in course, and as far as he consistently can in view of his obligations to his other creditors,' will not excuse him from paying his notes given without any such limitation.

V. 1. Custom, to be legal, must be the general custom of the trade, and not, as was this case, the custom of the party only.

2. What was proved was not properly a custom, but was a habit of the defendants in error, to fulfil their obligations only so far as they found it convenient.

VI. If such custom (or habit) could legally be proved, the extent and effect thereof should have been submitted as a question of fact to the jury under the evidence, and not determined by the court.

The points on behalf of the defendants in error were the following, as taken from the brief of Mr. Jenckes:

I. The evidence of the custom of the New England Screw Company to fill orders in part only was properly admitted under the general rules as to the admissibility of evidence of customs and usages.

These rules have been fully established in this court.

'Evidence of this character is received for the purpose of ascertaining the sense and understanding of parties by their contracts, which are made with reference to such usage or custom, for the custom then becomes a part of the contract, and may not improperly be considered the law of the contract,' &c.

Renner v. Bank of Columbia, 9 Wheaton, 581, citing Yeaton v. Bk. Alexandria, 5 Cranch, 49.

Mills v. Bank of U. S., 11 Wheaton, 431.

Bank of Washington v. Triplet et al., 1 Pet., 25.

Van Ness v. Packard, 2 Pet., 137.

Cookendorfer v. Preston, 4 How., 324.

Bowling v. Harrison, 6 How., 258.

Adams v. Otterback, 15 How., 544.

And in the Circuit Courts of the United States——

Trott v. Wood, 1 Gallison, 442.

The Reeside, 2 Sumner, 569.

See, also, the following text-writers:

1 Black. Com., 75.

2 Stark. on Evidence, 258.

1 Phill. on Evidence, 556.

2 Greenleaf on Evidence, secs. 251, 252.

Smith's Merc. Law, 29, 30, and note.

And the following cases:

Gabbay v. Lloyd, 3 Barn. and Cres., 793.

Stewart v. Cautty, 8 Mees. and Wels., 160, citing Perly v. Royal Exch. Co., 1 Burr, 341.

Ougier v. Jennings, 1 Camp., 505.

Palmer v. Blackburn, 1 Bing., 61.

Yeates et al. v. Pim et al., 1 Holt., 92.

Noble v. Kennoway, Doug., 510.

Loring v. Gurney, 5 Pick., 15.

Naylor v. Semmes, 4 G. and J., 274.

II. The contracts for the sale of screws by the defendant company were subject to the custom of the defendant company, to fill the same in part only.

1. Because it was a usage of trade.

The defendant company were the only manufacturers of gimlet or sharp-pointed screws in the world, at the time of making the contract. Any usage or custom, therefore, which they had established, which was 'known, certain, uniform, reasonable, and not contrary to law,' was the usage and custom of the trade. This usage was, and was well known to be, to fill orders in part only; and the contract with the plaintiffs was made subject to and controlled by this custom.

See the following authorities:

Renner v. Bank of Columbia.

Mills v. Bank of United States.

Van Ness v. Packard.

Cookendorfer v. Preston.

Bowling v. Harris.

Adams v. Otterback, as cited above.

2 Greenleaf on Evidence, secs. 251, 252, and notes.

Stewart v. Cautty, ubi sup.

2. Because it was the usage of an individual, and the plaintiffs, having dealt with the defendant company, and corresponded with them, were chargeable with notice; and in this case, the evidence showed that they had actual notice.

See, also, as to the law governing the usage and habit of trade of an individual, the following authorities:

2 Greenleaf on Evidence, secs. 251, 252.

Loring v. Gurney, 5 Pick., 15.

Naylor v. Semmes, 4 G. and J., 274.

Noble v. Kennoway, Doug., 510.

Mr. Justice CLIFFORD delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the southern district of New York.

According to the transcript, the suit was originally instituted in the Supreme Court of the State of New York by the present plaintiffs, who were citizens of that State; but was afterwards regularly removed, under the twelfth section of the judiciary act, into the Circuit Court of the United States, because the corporation defendants were citizens of the State of Rhode Island.

It was an action of assumpsit, brought to recover damages for the supposed breach of six separate and distinct contracts, in which the defendants, as was alleged in the declaration, stipulated to deliver to the plaintiffs, pursuant to their written orders given at sundry times, certain quantities of screws, usually denominated wood screws, of various sizes and descriptions, as were therein specified. Readiness to perform on the part of the plaintiffs, and neglect and refusal on the part of the defendants to deliver the goods, after seasonable demand, constituted the foundation of the respective claims for damages, as alleged in the declaration. Those claims are set forth in eighteen special counts, to which are also added the common counts, as in actions of indebitatus assumpsit. Of the several contracts, the first is alleged to have been made on the seventh day of October, 1852, and the last on the nineteenth day of April, 1853.

At the May term, 1855, the parties went to trial upon the general issue. To prove the several agreements, the plaintiffs relied on certain correspondence which had taken place between the parties upon this subject, consisting of letters written by the plaintiffs to the defendants, in the nature of orders or requests for the goods, and the replies thereto written by the defendants.

As appeared by the proofs, the plaintiffs were merchants, engaged in buying and selling hardware, and the defendants were engaged in manufacturing the description of goods specified in the declaration. They were in point of fact the sole manufacturers of the article in the United States, and were constantly receiving orders for the article from their customers faster than they could fill them, and for larger quantities than they were able to produce.

Orders had been given for this article by the plaintiffs prior to the date of this controversy; but the evidence in the case does not show when their dealings commenced. Six orders of like import were given by the plaintiffs, during the fall of 1852 and the early part of the year 1853, for large quantities of the article, of various sizes and description. This suit was brought to recover damages for not filling those orders, which, it is insisted by the plaintiffs, had been accepted without any reservation. Some of them had been filled in part only, and others had not been filled for any amount, when the suit was commenced.

It was denied by the defendants that the orders had been accepted without condition. On the contrary, they insisted that the plaintiffs well knew that the supply was greatly less than the demand, and that the orders were only accepted to be filled in their turn, as the defendants were able to produce the article.

To support the first three counts of the declaration, the plaintiffs, among other things not necessary to be...