[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 66
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 67
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 68
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 69 The eight receipts were properly read in evidence. They were merely evidence of the delivery of the wheat to the defendants. Being receipts only and not contracts, parol evidence was admissible to explain or contradict their terms. It was therefore competent for the plaintiff to show that the wheat belonged to him as executor. (7 Cowen, 334.) The plaintiff could have proved the delivery of the wheat without the production of the receipts. (8 Pick. 552; 2 Denio, 638; 7 Cowen, 335, 6.)
The receipt of the date of 21st November, 1845, imported a bailment and not a sale. It imported a deposit, a naked bailment of goods to be kept for the bailor without reward, and to be returned when required by him on any day after the first of January then next. By the terms of the contract, the identical wheat was to be returned. (Story on Bailments, §§ 41, 42, 47, 283; 2 Kent's Com. 589, 560; 7 Cowen, 752.) The property remained in the bailor. It did not pass to the bailee. *Page 72
The offer of evidence of usage among millers and sellers of wheat, to show that the receipt of the 21st November, 1845, imported a sale, was properly rejected. The terms of the contract contained in the receipt, are plain and unambiguous. The evidence of usage was not offered to ascertain the meaning as understood by millers and sellers of wheat, of particular terms in order to explain the subject of the contract. It went not to interpret or explain, but to vary and contradict the contract. (2 Comst. 241, 244; 2 Sum. 367; 13 Pick. 181, 2; Cowen Hill'sNotes, 1411.) No usage or custom can be set up to control the rules of law, or to contradict the agreement of the parties. But where there is nothing in the agreement to exclude the inference, the parties are presumed to contract in reference to the usuage or custom which prevails in the particular trade or business to which the contract relates; and the usage is admissible to ascertain the intention of the parties. (5 Hill, 438, 9; 1Hall. Rep. 632.) The plaintiff proved, previous to the introduction of the receipt of the 21st November, 1845, the receipt by the defendants, of the wheat therein mentioned; and also proved that when that receipt was drawn by Allcott, one of the defendants, the agent of the plaintiff informed him of the mistake in the receipt, in relation to the ownership of the wheat. The plaintiff made out his case without this receipt, and does not rely upon it. The defendants called for it. So far as it was a receipt, it was susceptible of explanation. The court correctly decided that the wheat belonged to the plaintiff as executor. There was no question on the receipt of the 21st November, 1845, to be submitted to the jury. I am of opinion that the judgment of the supreme court should be affirmed.