Marshall v. Perry

• Decision Date: 03 May 1877
• Citation: 67 Me. 78
• Parties: Farrington H. MARSHALL v. Eben N. PERRY, et al.
• Court: Maine Supreme Court

67 Me. 78

Farrington H. MARSHALL v. Eben N. PERRY, et al.

Supreme Judicial Court of Maine.

May 3, 1877

ON EXCEPTIONS, from the superior court.

ASSUMPSIT for the price of a quantity of butter, $170.96. The amount and price of the butter were admitted as alleged in the writ.

The defendants claimed that the butter was warranted to be of a certain quality, and that a portion of it was not of that quality, and claimed a reduction in the price on that account.

Upon the question of the terms of the warranty, testimony was conflicting; but the plaintiff claimed that by the contract of sale, and also under the custom of the trade in Portland if there were a warranty and a breach of it, the defendant was bound to return the goods, or give notice of the breach of the warranty within reasonable time after receiving the goods, or he would be precluded from having any reduction in the price.

The defendant admitted that no such notice was given within ten days, or for a long time thereafter.

The following is a full report of the testimony upon the question of custom.

Charles Walker, called by the plaintiff, testified I am a member of the firm of Charles McLaughlin & Co., composed of three members besides myself,-- wholesale grocers, not dealing in butter. It is my opinion a custom has been fallen into by general consent as to the time when a man shall either accept or reject his goods and notify the sellers. We put it on our bill head, ten days. The general accepted time is time enough to get the goods home, examine them and give notice, which we think is ten days. We claim that the notice is in writing. I do not wish to be understood that there is any organized agreement, but we have fallen into it by general consent. That in my opinion is the general usage.

Cross examined. I cannot say it is the universal custom in the city; can't say how long since it arose,--several years at least. I have not personal knowledge whether it applies to articles like butter and cheese. We deal in cheese somewhat.

Question. You understand by that, if a man receives a lot of goods, they are sold to him; he cannot reject them unless he does it in a usual time, which you fix at ten days.

Answer. We try to bind them to that. That does not apply to goods when they could not be examined in ten days. We should not claim it applied to goods falsely packed, or goods warranted to keep for years in any climate, like canned goods. If any article like canned goods should turn out bad in six months, they are liable to be returned.

Question. Do you understand it applies to cases where goods are not returned and a part of them does not come up to the quality ordered.

Answer. I can only speak as far as our custom goes. We do not allow any discount on goods at all. We claim they must be returned in ten days. That is our custom. We sometimes vary it out of policy.

Direct resumed. I have dealt in butter in years gone by. Butter exposed to the air will deteriorate more in September and October than in January, February and March.

Cross resumed. The more butter is exposed to the air, the worse it is. I should keep it as near air tight as possible. Butter kept in a cool cellar, ought to keep well in September and October, if not knocked out of the the tubs too many times.

Question. Was it your practice, if you bought ten tubs of butter, to examine every tub.

Answer. I do not know. I should apply the same rule I do to cheese. If I take in fifty boxes, I examine six, eight or ten, and if satisfactory, pile up the rest without examining further.

George L. Hodgdon, called by the plaintiff, testified: I belong to the firm of Hodgdon and Soule, merchants on Commercial street--have dealt somewhat extensively in butter. There is a custom among merchants in regard to the terms on which butter is sold by wholesale. I should say the common usage was, that in a reasonable time they should be notified if there was any dissatisfaction with the goods shipped. A reasonable time would be owing to the men we were dealing with. The number of days in which discount may be demanded, differs with different concerns.

A. M. Tyler, called by the plaintiff, testified: I am a purchaser of Vermont butter; have been in the business ten years. The general usage among those that deal in butter, I should say, was if the butter was not what they sent it for, to notify the parties, and they would either have it returned, or make the price satisfactory, at once on examination. The custom is to examine it and ascertain whether it is good or bad.

Cross examined. We deal with more or less of the dealers in the city,--don't know the custom of Perry & Foss; never dealt with Thompson and Hill; know what Hodgdon's custom is; have dealt with him; think I never returned any butter to them; don't know the custom of Bean Brothers, nor of Dodge.

E. N. Perry, defendant, recalled, testified: I don't know of any general custom, such as has been spoken of here. So far as I know, each man has his own custom. I do not conform to any such custom.

The counsel for the defendants contended that no such custom or usage was proved, as matter of law, as would affect this contract. But the presiding judge instructed the jury as in the opinion appears.

The verdict was for the plaintiff, for the full amount claimed; and the defendants alleged exceptions.

J. H. Drummond & J. O. Winship, for the defendants.

J. O'Donnell, for the plaintiff.

LIBBEY J.

This was assumpsit for the price of a quantity of butter, sold by plaintiff to defendants. The defendants claimed that plaintiff warranted the butter to be of a certain quality, and that a portion of it was not of that quality, and claimed a deduction from the price on account of the breach of the warranty.

The plaintiff claimed that if there was a warranty and a breach of it, under the usage of the trade in Portland, where the sale was made, the defendants were bound to return the goods, or give notice of the breach of the warranty, within a reasonable time after receiving the goods, or they would be precluded from having any deduction on account of the breach of warranty.

The plaintiff introduced evidence having some tendency to prove that there was such a usage as he claimed, applicable to the general transactions of merchants in the trade, but the evidence had no tendency to show that the alleged usage applied to sales with an express warranty of quality.

The defendants introduced evidence tending to prove that they had no knowledge of the usage claimed by plaintiff. They did not claim that the butter was returned or notice given within a reasonable time after the purchase.

Upon the point thus raised by the parties, the presiding judge instructed the jury as follows: " It is claimed, on the part of the plaintiff, that the rights of the parties are affected by the general usage of the trade, proved to have been established. The value of testimony relating to usage of trade, in all cases, depends either upon the universality of the usage in the trade or upon its being known to the parties at the time of the transaction. That is to say, a half a dozen different firms in the same trade may have different customs, different methods of doing business and different usages to which they conform. Of course persons dealing with each of these firms, having knowledge of their manner of doing business, familiar with their usage, may properly be held in a court of law to be bound by such usage. The usage may be considered as entering into the contract. But any such attempted usage as that, by a single firm or a few firms, can only affect the parties who deal with those firms and have knowledge of the usage so prevailing in that business. But on the other hand, there may be a usage so universally prevailing throughout the trade, known to all persons who have relations in business of that sort, that the jury may be justified in finding that the parties, from the very...