We infer, from the verdict of the jury,
that the claim of the plaintiff, that his instructions to the defendant were, to sell for cash, and not on credit, was not sustained by the proof. This leaves the case, as it was submitted by the judge to the jury, in the charge, “ that the implied undertaking of the defendant was, to sell the cattle, in the usual and customary manner.”
The defendant claimed, that there was a well known usage and custom in the city of New York, where this sale was to be made and was made, for drovers to sell, on short credit, and to receive notes, in their own names, for the price, and that he had conformed to this custom, in the sale of the defendant’s cattle.
■ In the absence of clear stipulations in contracts, usage of trade or business is often proved, to show the actual intend and purpose of the parties, though not expressed. Such usage must be lawful and reasonable, and so certain and general, in the place where the business is to be done, or the contract performed, or among those engaged in such business, that the parties to the contract may reasonably be supposed to know it, and to act in reference to it. In such *409case, it may be taken, that the usage entered into, and became part of, the contract.
A general usage, affecting any branch of business, furnishes good evidence of what is regarded as right and reasonable, in that respect, and when it is conformed to, negligence or misconduct can not be imputed. Barber v. Brace, 3 Conn. R., 9. Casco Manufacturing Co. v. Diwon et al., 3 Cushing, 408. Chitty Con., 20. 1 Sw. Dig., 10.
Proof of the general usage, claimed by the defendant to exist in the city of New York, where the plaintiff intended the sale of his cattle should be made, furnished strong evidence, that he not only assented, but empowered his agent, the defendant, to sell on the usual credit, and in the usual manner. And, although commission merchants, in the absence of instructions or custom, must generally sell for cash, yet, if there be an usage modifying the course of business, in this particular, or in other respects, and the sale is made in the usual and customary way, the agency is legally performed. Story on Agency, § 60, 77, 96, 110, 189, 209, 199, 226. 2 Kent Com., 622. The usage here offered to be proved, and which was proved, was not to contradict or control the terms of a contract definitely expressed, as it would have been, if positive instructions to sell for cash down, had been proved; but only to show the extent of the duty and obligation of the defendant, in a matter not thus expressed, but inferable from the nature of the business in which the defendant had long been engaged, and the well known manner in which such business had been usually conducted. Usage can not control or vary the clear and unequivocal stipulations of a contract, but will be controlled by them. Taylor v. Briggs, 2 C. & P., 525. Smith v. Wilson, 3 B. & A., 728. Blackett v. Royal Exchange Ins. Co., 2 C. & J. 244. Yates v. Pym, 6 Taun., 446. Glendale Man. Co. v. Protection Ins. Co., 21 Conn. R., 19. 1 Greenl. Ev., § 292. The usage proved in this case not only extended to a credit *410sale, but to the manner of sale, which the defendant followed, in taking the note for the price of the plaintiff’s cattle and his own, in his own name.
But, if no custom regarding this had existed, we could not say, as it was asked of the judge at the trial, to say, that the circumstance of taking the note, payable to himself, would subject the defendant to this loss. The plaintiff was not injured by this,—the purchasers failed, before the time of credit expired, and it was therefore, immaterial, whether a note had been taken or not, or who retained the possession of it. Nothing is more common, than for factors to buy, sell and sue in their own names. If the isolated fact, that one takes a note in his own name, furnishes prima facie evidence, that a sale was made on his own account; yet, when explained, as it may be, and shows a mere agency,—only a mode of doing the business for the principal, the responsibilities are not thereby varied. Corlies v. Cumming, 6 Cowen, 181. And yet, if a sale be made, and a credit given, without authority, and a note taken for the price, payable to the agent personally, he has been holden liable for the amount. Hemenway v. Hemenway, 5 Pick., 389. And so, if, after the time of credit has expired, the agent shall then give further time, by a note payable to himself. 2 Kent Com., 622. Hosmer v. Bebee, 14 Martin, 368.
In this opinion, the other judges concurred, except Waits, J., who tried the cause in the court below, and was disqualified.
New trial not to be granted.