Hursh v. North

• Decision Date: 31 October 1861
• Citation: 40 Pa. 241
• Parties: Hursh <I>versus</I> North, Chase & North.
• Court: Pennsylvania Supreme Court

Page 241

40 Pa. 241

Hursh versus North, Chase & North.

Supreme Court of Pennsylvania.

October 31, 1861.

ERROR to the Common Pleas of Union county.

Samuel H. Orwig, for plaintiff in error, cited and relied on Addison on Contracts, p. 854; 1 Gr. Ev. § 52, p. 70; Newbold v. Wight & Sheldon, 4 Rawle 212-13; Rapp v. Palmer, 3 Watts 179; 11 Mad. 160; 7 Vin. Abr. 187; 2 Sumner 567; and Coxe v. Heisly, 7 Harris 246.

G. F. Miller, for defendants in error, argued that the ruling of the court below was warranted by the case of Lelar v. Brown, 3 Harris 215.

The opinion of the court was delivered, October 31st 1861, by THOMPSON, J.

To establish that the bill of goods for which this suit was brought, was sold on credit, and would not be due until the 1st of January ensuing its date, and thus to avoid the bar of the Statute of Limitations, the court admitted evidence against the objections of the defendant below, to show a usage or practice of the plaintiffs to sell on credit without such terms being expressed. That wares sold between the 1st of July and January "must be settled by one half cash, and the other half by note, at three months, on the 1st of January, and between that time and July, on the 1st of that month." This bill of goods was sold and charged on 19th August 1852, and was claimed by the plaintiffs as not being due until 1st January 1853.

It was not pretended that any general custom existed in the country to this effect, or any special custom affecting either the particular locality or trade. A custom is something which has the force and effect of law; is law by the usage and consent of the people. But it must be uniform and universal within the sphere of its action, and so ancient "that the memory of man runneth not to the contrary:" 1 Bl. Com. 68-74; 4 Rawle 212; 3 Watts 179.

It was nothing like that which the plaintiffs' testimony tended to prove. If it had been, it will be conceded that the custom would have been the law of the contract, and both parties would have been bound by it. The one would not have been liable to suit, nor the other to the running of the statute until the customary credit had expired. It was not this, however, which the testimony was offered to prove, but the practice and usage of the firm in regard to giving credit. Now, as this was not good, as a custom, according to the definitions, it did not, ex proprio vigore, bind. How else could this practice, if it existed, have effect? We answer, either by being...