The plaintiffs, on the 9th day of December, 1863, had, in the city of New York, a barge load of hay, consisting of 1,197 bales of good and shipping hay and thirty bales of black clover hay, and they met defendant Wheeler, on one of the piers of the North river, near to and in plain sight of the barge. Some of the bales were in the hold of the vessel and the rest on deck, and the weight of each bale was marked upon it. One of the plaintiffs then had in his possession, but did not show to Wheeler, the tallies made by himself, showing *Page 501 the number of the bales and the weight of each bale. They then entered into negotiation with Wheeler for the sale of all the hay to him, stating to him that there were about 1,200 bales. He offered them $1.30 per hundred for all the good and shipping hay, and $1.00 per hundred for the clover hay, and offered to take all the hay at the weights marked upon the bales, deducting five pounds from each bale. The plaintiffs accepted the offer and said it was a bargain, and asked Wheeler where he would have the hay put, and he told them to haul the barge up alongside of a schooner which was near by, and he would send a man to take charge of it, and he was going to put part of it upon the schooner. The plaintiffs had chartered the barge with her crew for the sum of $200, to deliver this cargo of hay in New York. The plaintiffs then caused the barge to be placed aside of the schooner, as directed, and the defendants sent a man to take charge of and superintend the delivery of the hay from the barge to the schooner. The crew of the barge commenced unloading the hay from the barge into the schooner, under the supervision of the defendants' agent, and after one hundred and thirty-six bales of hay had been thus delivered, a fire broke out near by and destroyed both vessels and all the hay.
In this brief statement I have given the facts as the evidence on the part of the plaintiffs tended to show them, as the jury by their verdict found for the plaintiffs. The defendants claim that they should pay for only the 136 bales, and the plaintiffs claim that they should pay for all the hay; and the main question to be determined by us is whether what took place between the parties in reference to the hay was sufficient to vest the title thereto in the defendants. It is frequently difficult to determine whether the facts surrounding a contract of sale are sufficient to change the title to the property sold. It sometimes depends upon the intention of the parties, and the parties may provide in their contract that the title shall pass, when the facts would not, in the absence of such a stipulation, show a change. (Kimberly v. Patchin, 19 N.Y., 330; Russell v.Carrington, 42 N.Y., 119; Dexter *Page 502 v. Bevins, 42 Barb., 373; Young v. Mathews, Law Reps., 2 C.P., 127.) But it is the general rule of the common law that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid nor the goods sold delivered to the purchaser. (Olyphant v. Baker, 5 Denio., 379; Terry v. Wheeler, 25 N.Y., 520; Leonard v. Davis, 1 Black, 476, 483.) Chancellor Kent, in his Commentaries, vol. 2, p. 499, says: "The common law very reasonably fixes the risk where the title resides, and when the bargain is made and rendered binding by giving earnest or by part payment or part delivery or by a compliance with the requisitions of the statute of frauds, the property, and with it the risk, attach to the purchaser." The rule, as here laid down, should, however, be taken with this qualification, that nothing remains to be done by the seller to ascertain the identity, quantity or quality, of the article sold, or to put it in the condition which the terms of the contract require. (Terry v. Wheeler, supra.) Except for the purpose of satisfying the statute of frauds, the seller is not bound to deliver the property sold, unless he has agreed to do so, and the buyer must take it where it is at the time of the sale. (Story on Sales, § 301.) If the contract of sale in this case had been made in such form as to be binding within the statute of frauds, without any agreement to deliver, the defendants would have been bound to have taken the hay where it was upon the barge. The only delivery the plaintiffs agreed to make in this case, was to place the barge with the hay aside of the schooner, and this was all they were bound to make. The moment this was done, and the defendants took possession of the hay or any part of it, the statute of frauds was satisfied and the sale was complete. There was nothing more for the sellers to do. They had sold the entire cargo and knew the weights of the bales, and all that remained to be done was an arithmetical calculation, to ascertain the gross sum to be paid for the hay. This was not sufficient to prevent the title from passing. It is said in *Page 503 Story on Sales (§ 298), that "where everything which is material has been done by the seller, and the goods have been identified by weighing or measuring or counting, the fact that some trifling and insignificant act has not been done, which might strictly be required, will not prevent the title from passing to the vendee." In Tansley v. Turner (29 Eng. Com. Law, 288, 2 Bing., 151), the plaintiff had sold all the ash trees, which he had felled upon certain lands, at 1 s. 7½ d., per cubic foot, and the length and girth of the trees had been measured, and the cubic contents of each tree had been ascertained and put down on paper by the plaintiff. But the total cubic contents of the trees had not been ascertained nor had the price of any tree nor of all the trees. The vendee had removed some of the trees and then became a bankrupt, and it was held that the sale was complete, and that the remaining trees passed to his assignee. Chief Justice TINDAL said: "I agree that if anything remained to be done by the seller, the property had not passed. But when I find that all that remained was to ascertain the total number of cubic feet, and that the number for each tree had been ascertained, the mere adding up the whole is too trifling an incident to authorize us to say the measurement was not complete."
I therefore conclude that, upon the evidence given in this case, the title to the hay was in the defendants at the time of the fire; and this brings me to the only other question in the case. On the trial the defendants offered to show that there was a well known and uniform custom, in the port of New York, that hay should be inspected before delivery. This evidence was excluded, and the defendants claim that in this there was error. The decisions of the courts, as to the proof of usage for the purpose of explaining or controlling commercial and other contracts, are somewhat conflicting and irreconcilable. As to the admissibility of usages in general, the later cases show that the dislike to them, which seems always to have characterized the ablest judges in this country, and particularly in this State, is now becoming general; and it is now quite well settled that usage or custom cannot be proved *Page 504 to contravene a rule of law, or to alter or contradict the express or implied terms of a contract, or to make the legal rights or liabilities of the parties to a contract other than they are by the common law. In Sewall v. Gibbs (1 Hall, 602), OAKLEY, J., says: "That all contracts made in the ordinary course of business, without particular stipulations, expressed or implied, are presumed to be made in reference to any existing usage or custom relating to such trade, and that it is always competent for a party to resort to such usage, not to vary, but to ascertain and fix the terms of the contract." In Hinton v.Locke (5 Hill, 437), BRONSON, J., says: "Usage can never be set up in contravention of the contract. But when there is nothing in the agreement to exclude the inference, the parties are always presumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contract relates; and the usage is admissible for the purpose of ascertaining with greater certainty what was intended by the parties." (See also Wheeler v. Newbould, 16 N.Y., 401;Higgins v. Moore, 34 N.Y., 422; Markham v. Jaudon,41 N Y, 235; 1 Smith's Leading Cases, 4th Am. Ed., 564.)
Here there was no uncertainty as to the terms of the contract, and the parties had provided what the plaintiffs should do for a delivery of the hay, and all the contract required them to do was to place the barge with the hay beside the schooner. Hence the custom offered to be proved would have contradicted or varied the terms of the contract, and was therefore inadmissible. But there is another reason why it was properly excluded. There was no offer to show that the custom required the plaintiffs to have the hay inspected, or that it should be inspected before the title could pass, and hence the evidence offered was wholly immaterial. If it had been received, it would still have left a valid contract of sale, in reference to which the plaintiffs had done all they were bound to do, and the proof would still have shown that the title to the hay had passed the defendants. If upon any inspection which the defendants had seen fit to make, they had ascertained *Page 505 that any of the bales did not come up to the requirements of the contract, these they could have rejected and returned to the plaintiffs, retaining, as they would be obliged to, all that answered to the contract.
I am therefore of the opionion that the judgment should be affirmed with costs.
All concur for affirmance.
Judgment affirmed, with costs.