Ezra Cadwallader was a competent witness to prove his own agency for plaintiff, and the contract he made for him with defendants. This is the general and uniform rule, and well supported by authority. 1 Stark. Ev. 133; Lowber v. Shaw, 5 Mason R. 242; McGumnagle v. Thornton, 10 Serg. and Raw. R. 252; Harvey and Claxton v. Sweasy, 4 Humph. R. 450; Christy v. Smith, 23 Verm't R. 670.
This general rule is subject to qualification. An exception to it will exclude agents, as other witnesses, for an immediate and direct interest in the result of the suit. 1 Stark. Ev. 103 to 120, where the various interests are presented; and 23 Verm't R. 670; 4 Humph. R. 450; Shiras v. Morris et al., 8 Cow. R. 60. Sage v. Sherman, &c., 25 Wend. R. 430, and Emerton v. Andrews, 4 Mass. R. 653, are further examples of that primary liability which renders a witness or an agent incompetent.
But this exception to the general rule is also subject to a modification ; for, where a witness is equally liable to the one or the other party who may be condemned by the judgment, his supposed bias from interest is removed; he stands indifferent, and becomes, under such circumstances, competent, and existing preferences, if any are apparent, will go to his credit. Birt et al., Assignees of Glover, v. Kershaw, 2 East. R. 458; Ilderston v. Atkinson, 7 Term R. 480, and note of Evans v. Williams et al. An honorary obligation will only go to the credit. Frink v. McClung, 4 Gil. R. 576.
The testimony of the agent was submitted to the jury, with full and proper instructions upon the whole case, including the agent’s credit, and explanatory and rebutting proofs. We can not disturb the verdict, under such circumstances, believing, as we do, that the evidence fully sustains the verdict, whether viewed in the light of a previous authority or a subsequent ratification of the acts of the agent. We recognize, and fully sanction, the rule applicable to ratifications of the acts of agents, that, to make them binding, the principal must be fully and fairly informed of all the material facts and circumstances. Owings v. Hull, 9 Pet. R. 628; Hastings v. Bangor House Proprietors, 18 Maine R. 436; Sage v. Sherman, &c., 25 Wend. R. 430.
There is no suppression of a material fact shown in this record.
If Cadwallader is to be believed—and we have no reason to doubt, supported as he is by other witnesses and circumstances— notwithstanding Boynton did not hear nor swear to all that the other says transpired—plaintiff was fully advised of the fact that Cadwallader had purchased the cattle as agent; that the money was due and belonged to defendants, and not to him; and he was not willing, and had no right, to take their money to pay his own debts. Boynton would be understood as conveying a different impression of what transpired between the plaintiff and witness; but I think he is fully corroborated by the witness who drove down the cattle, who gives plaintiff’s own statements, that Cadwallader was at work for him, and that he had written to him to buy defendants’ cattle if they were nice. He must, therefore, be responsible for his own reception and retention of these cattle, with a full knowledge that they did not belong to Cadwallader, and which he knew, for any thing in the record, in due time to have refused them, if not content to purchase of defendants.
The answer he would make to this state of facts, is Ms own usual course of dealing in that neighborhood for three years, as a legal custom of trade.
No such usage or custom, although it may be a general one, can be allowed to alter, vary or control the express terms of a contract. Dixon v. Dunham, 14 Ill. R. 324. It may explain what is not agreed expressly, and how an implied contract may be understood and fulfilled. We do not think this particular individual usage, even if admissible, would explain or contradict the facts in this record. Such may have been plaintiff’s usual course of dealing, while supplies of beef cattle could be procured through runners, as intermediate purchasers; and yet, when one who had so acted refused to engage any further in that mode of trade, but assumed to act and purchase as an agent, and plaintiff receives cattle so purchased with a knowledge of that fact, he shall not be permitted to set up his previous course of dealing, by which he seeks, and would succeed, if allowed, in taking defendants’ cattle to pay the debts of a former customer, who now assumes his own agency, as the means of procuring possession of their cattle. This custom might have greater weight had it greater age and an universality. I know that particular individual customs of companies and houses have been received to fix the rights and liabilities of customers and the powers of agents. Such was the case of Jones v. Warner, 11 Conn. R. 40, which allowed the regular course of the trade of the house, to show that its clerk had no authority, to make a contract out of that regular usage.
So in Loring et al. v. Gurney, 5 Pick. R. 15, a like individual usage was allowed on its being proven that the customer was aware of it.
Thompson v. Hamilton et al., 12 Pick. R. 425, and Halseys. Brown et al., 3 Day R. 346, are instances of a general custom in particular localities, which were allowed to explain rights and liabilities arising on implied contracts, as that masters of coasters sailed the vessels on shares with the owners, as a mode of fixing the owners’ compensation for the use of the vessel; and again, that freights for gold, silver, &c., were a perquisite of the master; and did not belong to the charter or owner of the vessel.
In Reuner v. The Bank of Columbia, 9 Wheat. R. 581, (5 Cond. R. 691,) a constant and uniform usage of the banks of Washington city, and Alexandria, in the District, to allow four, instead of three days of grace, on bills and notes was recognized and upheld. The court in sustaining this usage, advert to the fact that it had been the uniform usage from the establishment of the bank in 1793, and it was well known and understood by the defendant, when he indorsed the note upon,which he was sued.
Upon a like principle, a general usage or course of trade in particular articles of commerce have been sustained under like circumstances. Thus in Sewall v. Gibbs et al., 1 Hall R. 602, on sale of indigo in ceroons, it was usual to deduct ten per cent, for tare,—but in cases of fraudulent packing, the actual tare; and so a deduction of seventeen per cent, was allowed upon proof of the custom and fraudulent packing. But in no case have I found a special, local or individual custom received to contradict a contract. There is no dispute but that these cattle were expressly and avowedly bought for plaintiff, and by one professing to act as agent only. To allow the plaintiff to set up his individual usage or course of dealing through one agent alone, would be to allow him to take advantage of defendants.
Had plaintiff refused to receive the cattle under Cadwallar der’s purchase for him as agent, and this suit had been brought on that contract to enforce it against him, he might and would occupy a different ground; and upon showing that he had pursued such a uniform course of trade through one agent only, and alone with intermediate purchasers, and defendant’s knowledge of such course of dealing, might present grounds for rebutting an agency and raising a suspicion of fraud or want of good faith and fairness on their part, in contracting so far out of that usage. Such a supposed state of facts might implicate the defendants for bad faith. But in the absence of such facts, such usage as is offered would apparently enable plaintiff to perpetrate a fraud upon defendants'.
Judgment affirmed.