The plaintiff is a fruit grower who shipped two boxes of pears from Oregon for sale on commission to the defendant at New York through the defendant’s agent in Oregon. The shipment was part of a carload consigned to the defendant, and composed of boxes of different size pears shipped by various growers. Upon the arrival in New York of the carload of pears the defendant found that the, top layer of boxes of pears were over-ripe, and it seems to be conceded that carloads of pears ordinarily arrive in this condition owing to the fact that the heat in the cars is greatest at the top. The pears were invoiced to the defendants according to size. The defendant sold the entire carload at the dock. The boxes were not sold separately, but were sold in different lots, graded according to the condition and size of the contents of the boxes. The plaintiff’s pears were of a large size and the boxes of over-ripe pears of that size sold at one dollar and fifteen cents per box. The boxes of pears of that size in good condition were sold at one dollar and seventy cents per box. There were one hundred and fourteen boxes of this size which were not over-ripe and were sold for the higher price and there were seventy-six boxes which were over-ripe and sold at the lower price, so that the average price obtained for pears of this size, ripe and unripe, was one dollar and forty-eight cents a box, and the plaintiff claims that he is entitled to recover from the defendant for the two boxes, the sum of two dollars and ninety-six cents less freight, commissions, etc., which would reduce the net return to the sum of sixty-two cents.
The defendant, on the other hand, claims that accord*569ing to the custom of trade in New York, after the pears are sold in lots graded according to siz'e and condition as described above-, the price of all the pears in the entire carload is averaged and each shipper receives the average return per box for the whole carload. In the present case a large number of the boxes in the car contained pears smaller than those which the plaintiff shipped and the price received for these pears was lower than for the pears of the larger size, so that the average price received for all the boxes in the car was correspondingly reduced. If such a custom exists and is binding upon these parties, then the plaintiff instead of being entitled to sixty-tw-o cents, as he claims, is entitled to only fifty cents, which the defendant tendered to the plaintiff before this action was begun.
The trial justice has rendered judgment on the merits in favor of the defendant, thus holding that the defendant’s tender was sufficient. The plaintiff now appeals from that judgment, urging that the amount of the tender was based upon a custom" which is not shown to have been known to him and which is unfair in itself and therefore should not be enforced by the court. I have no doubt that the plaintiff has assumed the burden of an appeal in a case which directly involves only a few cents because he regards the decision as establishing a rule under which a shipper of fruit is not entitled to receive from a commission merchant the average price for which fruit of the same grade and size in the same consignment has been sold but some other sum bearing no direct relation to the value of the fruit actually shipped and because he believes that such a rule is unfair to himself as shipper and to the public.
It is to be noted at the outset that where a shipper consigns fruit or any other commodity to a commission merchant for sale, it is the duty of the consignee, *570in the absence of special contract or of a special custom of trade under which the shipment may be presumed to have been made, to sell the goods consigned and account to the shipper for the amount received on such sale for these specific goods. In the present case there was concededly no special contract and the plaintiff is therefore entitled to recover the proceeds of the two boxes shipped by him and nothing else unless the shipment was governed by a special custom of trade. The plaintiff, however, does not claim the exact amount received for the two boxes shipped by him and is not in any position to prove this amount. If the two boxes were over-ripe on arrival then they were sold for one dollar and fifteen cents each and the defendant has already tendered more than the amount to which the plaintiff would be entitled; if the two boxes were not over-ripe then the plaintiff would be entitled not merely to more than the amount of the tender but to more than the amount he now demands. In the absence of proof as to the condition of these particular boxes, the court, therefore, could not determine whether the tender was sufficient or insufficient and could not give any judgment in favor of the plaintiff based on the amount actually received for the fruit. Possibly it might be urged that if the defendant intermingled the plaintiff’s boxes with goods received from other parties without his consent so that the amount received upon their sale cannot be determined, it would be liable at least for the average amount realized for the various lots of boxes of pears of the same size as those shipped by the plaintiff, but even if such rule of liability could be applied under appropriate circumstances, in the present case there is neither claim nor proof that the commission merchant acted without the shipper’s consent in commingling the fruit with other fruit of the same size. As a matter of fact it is quite evident that the *571plaintiff did not expect the commission merchant to sell his fruit separately and to account for the proceeds of the sale of his specific goods.
On the contrary, he 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 required to note in which lot the fruit of each grower was included, but may sell the fruit received in lots graded according to size and condition without noting in which lot the fruit of each specific shipper was included, and, as stated above, he is claiming only the average price received for all pears of the same size as those shipped by himself regardless of the condition in which they were received. There is, as a matter of fact, no dispute but that a custom existed in the fruit trade in New York for the sale of fruit in the manner in which this defendant conducted the sale of the fruit shipped by the plaintiff and the case really narrowed itself down, to the question as to the manner in which the defendant is bound to account to the plaintiff for his share of the receipts of such sale.
If this court were called upon to make a contract between the shipper and commission merchant as to the manner in which commission merchants should account to their customers for the fruit consigned to them, it might well be that we should consider the method suggested by the plaintiff as the fairest method by which the returns upon the sale of fruit received could be apportioned to the different shippers. The court, however, has no such power and can merely enforce the contract Avhich the parties have actually made. In the present case, since they made no express contract as to the manner in which the shipper shall be compensated for the fruit shipped and the plaintiff practically concedes that the goods which he shipped were to be sold in accordance with the custom of trade, *572mingled with other fruit shipped in the same carload, the plaintiff can recover only for the amount to which he is entitled under the custom of trade governing such sales.
From the undisputed evidence it appears that it is the custom of the trade that the shipper shall receive only the average amount received upon the sale of the carload of fruit regardless of the size or grade of his particular shipment. It may be that the plaintiff did not know of the existence of this custom, but since he evidently did understand that the commission merchant was not obliged to sell his goods separately and account in the ordinary manner for the proceeds but that some special custom existed in the trade which would govern the manner in which such sale should be made and which must necessarily also affect the manner in which the commission merchant would or could account for the proceeds of the sale, and since the plaintiff made no inquiry as to the nature of the custom and indicated no intention that the rights of the parties should not be determined in accordance therewith, it seems to me that we must regard such custom as binding upon the plaintiff in the same manner as if he had expressly agreed to it.
Moreover, that custom is not, in my opinion, so evidently unfair that we would have a right to interfere with it. The commission merchant does not receive more than the amount of his commission and the custom concerns only the manner in which the net proceeds are distributed among the shippers. If a shipper of smaller pears should bring an action for the amount to which he would be entitled under this custom of trade, then it seems to me quite evident that the commission merchant could not urge that the custom was unfair, and the same rule must hold good where the custom is disadvantageous to the shipper as where the *573custom works to Ms advantage. If the custom seems unfair to the shippers, they can make specific contracts in regard to the manner in which they shouM receive payment for their shipments.
Judgment is therefore affirmed, with costs.
Judgment reversed and new trial ordered, with costs to appellant to abide event.