Plaintiff failed to show the amount received for his goods and failed to prove any custom by which the amount due him was to be otherwise determined. If this were all the complaint should have been dismissed for failure of proof, but not on the merits. As defendant, however, mixed plaintiff’s goods in the sale with others, without, so far as appears, plaintiff’s- consent, so that the amount received on their sale cannot be determined, they are at least liable for the average amount realized for the lots containing plaintiff’s goods, which is one dollar and forty-eight cents a box, which is all plaintiff asks. It is urged that plaintiff cannot recover on this theory because it is said first there is no claim or proof that the defendant acted without plaintiff’s consent in commingling the goods, and second, that the plaintiff has brought this action upon the theory that the commission merchant is not required to sell separately the fruit received from each grower, or even to note separately in which lot the fruit of each grower was included.
With this I am unable to agree. The complaint alleged and the answer admitted that the fruit was delivered to and received by defendant to be sold for account of the plaintiff. This constituted defendant the agent to sell, charged, in the absence of evidence of some special agreement, with the duty to sell and account for the proceeds. To commingle and sell them in such a way as not to be able to identify the price realized was, therefore, unauthorized and wrongful, but plaintiff may waive the wrong and elect to claim at least the average price realized for goods of that size, and there is nothing in the evidence or the complaint or the nature of the action necessarily inconsistent with this theory. Plaintiff does not by this election proceed on the theory that defendant had the *566right generally to sell commingled with the fruit of others or according to some custom of the trade, hut only affirms this particular sale at this particular price, to wit, the average price realized for goods of that size, and sues to recover that amount. It seems to me very clear that under the complaint in this case a recovery on such cause of action is amply warranted. The alleged custom, testified to by defendant, was not shown to have been known to plaintiff or to have existed so long and so generally that it must be assumed to have been known to him and, therefore, was not binding. Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307. Whether inequitable and unfair it is not necessary to decide for the purposes of this appeal. As, however, the question may arise on the new trial it seems advisable to consider it how. It is often said a custom to be enforceable must be reasonable. Usages of trade known to be known to the parties, or so well established that they may be assumed to be known, are deemed to have been incorporated into the contract by the intention of the parties by implication, when not inconsistent with its terms and nothing to the contrary has been said. This is founded on the assumed intention of the parties, and proof of the custom is only another form of proving wháft is in effect a specific contract. A contract when so proved is no more to be brushed aside as unreasonable than any other contract. The doctrine of reasonableness or unreasonableness was never intended to substitute the opinion of the court for that of the parties as to what is fair. The only bearing that question can have is on the probabilities of the parties having intended to adopt the alleged custom as part of their contract. . Where its terms, taken in connection with the subject-matter of *567the contract or the relation of the parties, are such as to make it so improbable that the parties could have intended to incorporate them in the contract, that no inference or presumption of such intent is reasonably possible, they will not be deemed so incorporated. It was thus held in Fuller v. Robinson, 86 N. Y. 306, that there is no ground for such a presumption where the usage attempted to be shown is repugnant to common sense, or is based upon a disregard of the relations which exist between men or the duties which in law and morals they owe to each other.
On the same principle it was held in Bowen v. Stoddard, 10 Metc. 375, that an alleged custom that owners of ships engaged in foreign trade should be bound to accept all drafts drawn on them by the ship master involved such an unlimited liability, and was, therefore, so highly improbable that nothing less than an express agreement to that effect would warrant a finding that such was the intention. In other words, any presumption that the parties intended to incorporate it in the contract was rebutted by the circumstances of the case and the terms of the alleged custom. In the case at bar the idea or assumption that a grower of high grade fruit would be willing to accept the average price which might be realized on an entire carload in which his fruit happened by chance to find itself, a matter over which he could exercise no control and where he could have no knowledge in advance as to what class of fruit it might be made up of, thus putting all hope of profit or reward for growing, or having the reputation of growing, a high class article at the risk or hazard of a chance is so contrary to all notions of good sense or probability as to forbid any reasonable presumption that it was so intended, and the incorporation of such a provision by implication cannot be sustained.
The judgment dismissing the complaint on the *568merits was error and should be reversed, and new trial ordered, with thirty dollars costs to appellant to abide the event.