Snowden v. Warder

• Decision Date: 04 February 1831
• Citation: 3 Rawle 101
• Parties: SNOWDEN and another v. WARDER.
• Court: Pennsylvania Supreme Court

3 Rawle 101

SNOWDEN and another v. WARDER.

Supreme Court of Pennsylvania.

February 4, 1831

IN ERROR.

Evidence is admissible to prove, that by custom or usage, in Philadelphia, on the purchase and sale of cotton, the vendor shall answer to the vendee for any latent defect in the article sold, though there be neither warranty nor fraud on the part of the vendor.

A party who alleges error in the admission of evidence by the court below, must shew in his bill of exceptions what the evidence was; otherwise the exceptions to it will be considered as waived.

ERROR to the Court of Common Pleas of the city and county of Philadelphia.

On the trial of this cause, the plaintiff below, William S Warder, offered evidence to prove, that it is the custom of trade in Philadelphia, in respect to the purchase and sale of cotton, that the vendor shall answer to the vendee for any latent defect in the article sold, which shall upon examination be discovered, without either warranty or fraud on the part of the vendor. He also offered evidence to prove such custom, where the damage arises from fraud in packing, on the part of the exporter of the article, unknown to the vendor.

He further offered evidence to prove, that by the custom of trade in Philadelphia, the vendor of certain other merchandise is liable to the vendee for any latent defect in the article sold, without warranty or fraud on the part of the vendor.

To the admission of all this evidence, the counsel for the defendants below objected, but a majority of the court composed of the two associates, (HALLOWELL, President, not concurring with them,) admitted the evidence, and at the request of the counsel of the defendants below, sealed a bill of exceptions.

After the evidence above stated had been admitted, and it had been proved that the defendants below, had sold to the plaintiff below, fifty bales of cotton, of which a portion was damaged the counsel for the defendants requested the court to instruct the jury as follows:

First. That the defendants, as vendors of merchandise within the city of Philadelphia, were not by law liable to the plaintiff as vendee, for any latent defect or damage in the article sold, unless there be a warranty by, or fraud on the part of said vendors.

Second. That a custom among traders in the city of Philadelphia, that the vendor of merchandise shall be liable to the vendee for any latent defect or damage in the article sold, without warranty or fraud on the part of such vendor, is contrary to law, and not binding on the defendants.

Third. That a custom among traders, engaged in buying and selling cotton within the city of Philadelphia, that the vendor shall be liable to the vendee for any latent defect or damage in the cotton sold, without warranty, or fraud on the part of the vendor, is contrary to law, and not binding on the defendants.

Fourth. That a custom among traders in the city of Philadelphia, that the vendor of cotton shall be liable for fraud in the packing, with which the said vendor had no privity, connexion or knowledge, and in the absence of any warranty or fraud by such vendor, is not sufficient in law to charge the loss in consequence of such fraud on the vendor, nor is such custom binding on the defendants.

Fifth. That a custom, to be good and sufficient in law, must have been immemorial and uniform, and must be certain, compulsory and reasonable, and is not binding on the defendants, unless possessing all these qualities.

The majority of the court, composed of the two associates, refused to charge the jury upon any of the said points, according to the request of the counsel for the defendants, but delivered their opinion as follows:

First. That the evidence proved a custom, by which the plaintiff could recover, if he had brought himself within it, without warranty or fraud on the part of the defendants.

Second. That whether he had brought himself within it, was a question of fact for the jury, depending, among other things, on the question whether the damage had been discovered, and the defendants notified of it in a reasonable time.

Third. That if the plaintiff knew the defendants were consignees or agents in the sale made by them to him, and if they had before the discovery of damage, and demand made, settled with and remitted the proceeds to their principal, the defendants were not responsible.

To this opinion also, the defendants counsel excepted.

Chew for the plaintiffs in error, contended that no evidence can be legally admitted to establish a custom, in a particular portion of the state, and not extending to the state at large. It has been repeatedly decided in this country as well as in England prior to the Revolution, that such a custom cannot be proved. Edie v. The East India Company, 2 Burr. 1222. Stoever v. Whitman, 6 Binn. 416. Thompson v. Ashton, 14 Johns. 316. Dunhower v. Bull, 16 Johns. 375. Seixas v. Wood, 2 Caines, 54. Perry v. Aaron, 1 Johns. 132. Jackson v. Wetherill, 7 Serg. & Rawle, 480. In Gordon v. Little, 8 Serg. & Rawle, 533, it is true, evidence was held to be admissible, tending to show the custom with respect to the liability of common carriers on the western waters of this state, but the opinion of the court on this point was not unanimous, and Chief Justice TILGHMAN, who was one of the majority, said, that a party who sets up a custom, must satisfy the the court that the case is not embraced by the general rules of law. There was no general rule of law which extended to carriers on the western waters, and therefore evidence of custom was received. The same observation may be made with respect to the way going crop, as to which, a custom was allowed to be proved, in Stultz v. Dickey, 5 Binn. 285. The distinction is between cases in which there is, and those in which there is not a general rule of law. With respect to the case before the court, the general rule of law is well established, and cannot be controverted by evidence of custom.

But supposing evidence to be admissible to prove a custom of trade, relating to the article which was the subject-matter of the contract, the admission of evidence to prove a custom as respects merchandise of a different kind was clearly wrong.

The court did not hear M'Ilvaine, who was of counsel for the defendant in error.

OPINION

Ross J.

The common law readily adapts itself to the regulation of the various and complicated transactions of civilized communities. If any alteration in the condition and habits of society require the introduction of new principles, the common law receives such modifications, as correspond to the change in the different departments of social and civilized life. This is a safe mode of legislating, and not liable to error. If a custom or usage be not universal in its operation, the common law nevertheless permits that class of citizens, who have adopted it in their dealings with each other, to avail themselves of it in construing and enforcing their contracts or agreements, unless, indeed, it be mischievous in its nature, or contrary to the general policy of the law.

The common law is truly entitled to our highest veneration; and, although it has been said by some to have been instituted by Brutus, the grandson of Æ neas, and the first king of England, who died when Samuel was judge of Israel, and who wrote a book in the Greek tongue, which he called The Laws of the Britons, and which he had collected from the laws of the Trojans, it is nevertheless not entitled to our veneration on account of its antiquity; for nearly all that is valuable in it is comparatively of modern date. ( See Preface to Third Reports. ) Neither is it entitled to our respect on account of the ancient, absurd, and superstitious modes of trial; none of which have the slightest resemblance to our present trial by jury. Still less is it entitled to our admiration on account of the feudal system, which imposed a restraint upon every effort to improve the jurisprudence of the country, and which prevented the adoption of those maxims of justice and equity, which now render it the admiration of the enlightened jurist, and the favourite of the people. It is, however, entitled to our veneration, because it has, within the last two centuries, been moulded by the wisdom of the ablest statesmen, and a succession of learned and liberal minded judges, into a flexible system, expanding and contracting its provisions, so as to correspond to the changes that are continually taking place in society, by the progress of luxury and refinement. As the youthful skin of a vigorous child expands with its growth, and accommodates itself to every developement, which the body, in its progress to maturity, makes of its powers, capacities and energies, so does the common law, in order to suit the exigencies of society, possess the power of altering, amending, and regenerating itself. It has been truly and eloquently said, that " it is the law of a free people, and has freedom for its end; and under it we live both free and happy. When we go forth it walks silently and unobtrusively by our side, covering us with its invisible shield from violence and wrong. Beneath our own roof, or by our own fireside, it makes our home our castle. All ages, sexes and conditions, share in its protecting influence. It shadows with its wings the infant's cradle, and with its arm upholds the tottering steps of age." It is the duty of the judiciary not only to guard it with vigilance against incongruous innovations, but also to extend the operation of its principles, so as to embrace all the new and various interests, which arise among an active and enterprising people. Thus much for the common law.

In this case, the questions presented for decision are found in the first...