The only matter now at issue in this case is the plaintiffs’ right to recover for the oats. The case was sent to an auditor and, at the hearing in the Superior Court, it was agreed that his report should be taken as an agreed statement of facts. It appears from the report that there was an oral contract between the plaintiffs and the defendant by which the plaintiffs were to sell and deliver to the defendant oats by the bag, hay by the ton, and corn by the bushel at current rates in such quantities as the defendant should order from time to time. The oats were delivered under the contract, and were charged to the defendant by the plaintiffs on their books by’ the bag at the current rates. The auditor found if it was admissible that according to a trade usage amongst grain dealers the term “ bag of oats ” meant two bushels of thirty-two pounds each, and that the defendant understood when he made the contract that a bag of oats meant sixty-four pounds of oats, not including the bag, and that that was what he was to receive from the plaintiffs. The plaintiffs understood the same. The auditor also found that the plaintiffs had the greater part of the oats shipped to them in bulk and weighed and bagged them at their store putting sixty-four pounds in each bag; that oats consigned to them by the bag were weighed by the consignors, and each bag contained sixty-four pounds; and that each bag delivered to the defendant was either weighed by the plaintiffs or their consignors and contained sixty-four pounds.
The' defendant contends that there was not a sale by the bushel as required by Pub. Sts. c. 60, § 21, and that the evi*259dence of usage was inadmissible, and he relies upon Eaton v. Kegan, 114 Mass. 433.
1. If, when parties have contracted orally as one of the terms of the contract to sell oats by the bag, such a sale is to be regarded under any and all circumstances as sale in violation of the statute, then, it is clear that the evidence of usage was inadmissible, since evidence of usage cannot be shown to justify an illegal sale. But we do not think that the rule can be laid down so broadly. Notwithstanding the form of the phrase, we think that it would be open to the parties to show, if they could, by any competent evidence that the sale was in fact a sale by the bushel. We think therefore that the evidence of usage was rightly admitted. See Page v. Cole, 120 Mass. 37; Mooney v. Howard Ins. Co. 138 Mass. 375.
2. The question then is whether, in view of the usage and of what was done in weighing and delivering the oats, the sale is to be regarded as a sale by the bag merely, or as a sale by the bag of two bushels in a bag, in which case we think that it would be in effect a sale by the bushel. The usage shows and the auditor has found that when the parties were contracting they understood that they were contracting for bags of oats containing sixty-four pounds or two bushels of thirty-two pounds each. The auditor has also found that there was weighed and put into each bag that was delivered sixty-four pounds or two bushels and that the bags were not included in the sale. It seems to us that this was in effect a sale of oats by the bushel. The fact that the oats were charged on the plaintiffs’ books by the bag is immaterial so long as it was understood that the bags were to contain and did contain two bushels of thirty-two pounds each. It is difficult to see how the defendant could have lost any benefit which it was the purpose of the statute to insure to a buyer. The case of Eaton v. Kegan, ubi supra, is materially different from this. The oats and meal were sold in that case by the bag and charged by the bag, and “ there was no evidence that they were sold in any other way than as charged, nor that the same were weighed or measured, nor of the quantity contained in each bag other than that they were of the value charged.” There is evidence of precisely the contrary character in this case.
Exceptions overruled.