Cooper, Caruthers & Co. v. Sanford

• Decision Date: 31 March 1833
• Citation: 12 Tenn. 452
• Court: Tennessee Court of Appeals
• Parties: COOPER, CARUTHERS & CO. v. SANFORD, Adm'r, etc.

12 Tenn. 452

COOPER, CARUTHERS & CO.

v.SANFORD, Adm'r, etc.

Supreme Court of Errors and Appeals of Tennessee.

March Term, 1833.

James Sanford, on the 6th of October, eighteen hundred and thirty, drew two bills of exchange on the firm of Cooper, Caruthers & Co., of New Orleans; one for three thousand dollars, and the other for two thousand five hundred dollars, payable six months after date, which were accepted by them, for the accommodation of said Sanford, and for the purpose of getting their said acceptance two and a half per cent. was allowed; his cotton crop was also to be forwarded to them, which they were to sell upon commission, and out of the proceeds of said cotton they were to take up and pay the bills when they fell due; no cotton had been forwarded or received by Cooper, Caruthers & Co., to meet them; nor was any arrangement made by Sandford to pay the bills in his lifetime, nor since his death, he having in the meantime died, by his administrator.

Cooper, Caruthers & Co., sued Sanford's personal representative in Maury county court, in an action on the case. There are many counts in the declaration, shaped to meet all the claims of the plaintiffs. Plaintiffs pleaded non assumpsit; a verdict was found for plaintiffs and appeal taken to the circuit court.

The plaintiffs as commission merchants charged Sandford two and a half per cent. for accepting, and two and a half for advancing their own funds to meet said bills at maturity, as compensation for their trouble, labor, risk, etc., it being the custom of commission merchants in New Orleans (the place where said bills were payable) so to charge.

The bills were produced upon the trial, and the payment of them found to have been made by plaintiffs out of their own funds; they were also proved to be commission merchants in New Orleans; the custom of charging two and a half per cent. for accepting and two and a half for paying out their own funds was also proven, and the rate of interest in such cases from six to ten per cent.

The judge charged the jury that if it were customary for the commission merchants to charge two and a half per cent. for accepting and also two and a half for advancing, where they pay the money out of their own funds, as compensation for the trouble, labor, risk, etc., it would be legal, and the jury would have the right to allow it, and also the eight per cent. interest, if such was the custom in New Orleans, as that was the place where the bills were payable. The jury found a verdict for the plaintiffs, allowing the amount paid on the accepted bills, and also the two and a half for accepting and two and a half for advancing the amount, and interest at eight per cent.

Motion for new trial, upon the ground that the jury ought not to have allowed the two and a half for accepting and two and a half for advancing, and because one of the jurors was related to Cooper, one of the plaintiffs, and that it was not known in time. New trial refused, and exception taken, etc., and writ of error to this court.

F. B. Fogg, for plaintiffs in error.

J. P. Clarke, for defendant in error, cited the following authorities:

As to usage and custom of merchants: 2 Starkie's Ev. 445-6, 450-2-3-4-5; Doug. 513; 5 Term Rep. 373; 1 Term Rep. 490; Palm. 201; Doug. Rep. 519; 4 Esp. Cases, 53; 5 Munf. 483;5 Bin. 287; 1 Black. Com. 75; 1 Caine's Rep. 43; 3 Conn. 9; 2 Bur. Rep. 1228; 1 Call, 147. As to granting a new trial because one of the jurors was related to plaintiff and he not excepted to: 1...