This action was brought to recover damages for the breach of a contract alleged to have been made between the plaintiffs and the defendants for the sale of Manila hemp.
The allegation of the complaint is : “ That on or about the 29th day of, January, 1894, these plaintiffs entered into an agreement with said defendants, through William S. Daland, broker in merchandise, whereby these plaintiffs agreed to sell to the defendants, and the defendants agreed to purchase from the plaintiffs, about four thousand (4,000) bales of current quality Manila Hemp, at five (5) cents, United States' gold, per pound, and about one thousand (1,000) bales of Current Leyte, guaranteed equal to Good Current quality Manila Hemp, at five and one-eighth (5£) cents, U. S. gold# per pound, excluding Red Hemp; and that the terms of the said agreement will more fully appear from the sold note of said broker, *532a copy of which is hereto annexed marked ‘ Exhibit A,’ and which is to be taken as a part of this complaint.” That portion of Exhibit .A which is- material to the question under consideration reads as follows:
“'Contract for Mamila Hemp.
“ New York, January 29j 1894.
“.Sold for account of Mess. Smith & Schipper, agents for W. F.. Stevenson & Co., Manila. To Messrs. W. F. Milton & Go., about (4000) four thousand Bales Current quality Manila Hemp at (5c) five cents U. S. Gold per lb, About (1000) one thousand bales Current' Leyte, guaranteed equal Good Current quality Manila Hemp at (5 1/8) five and one-eighth cents H. S. Gold per lb. No red Hemp. * *' * ”
The defendants, by their answer, denied the above allegations of the complaint ánd alleged as a defense, among others, that the contract referred to in the complaint was made with the firm of W. F. Stevenson & Co., of Manila, and not with the plaintiffs, whose only connection therewith was as an agent of Stevenson & Co. Upon the issue thus formed the parties went to trial, and it there appeared — . in fact, it does not seem to have been seriously questioned — that the contract referred to was made between the defendants and W. F. Stevenson &■ Co., and that the plaintiffs’ only connection .with it was as agent of Stevenson & Co. The referee has so found, and there is an abundance of evidence to sustain his finding. But, notwithstanding the fact that' the plaintiffs failed to prove' that they had ever made a contract with the defendants for the sale and delivery of the hemp, as allegéd in the complaint, nevertheless a recovery was permitted, which a majority of' this court is about to affirm, on' the ground that the plaintiffs are entitled, under section 449'of the Code of Civil Procedure, to maintain the action as the trustees of an express trust; Whether' the plaintiffs could originally have maintained an action in' their own name, under this section of the Code, as the-trustees of an express trust, it is not necessary to consider. That question is not now before us. They certainly could, not do so under the allegations of the complaint, or under the proof offered upon the trial. To maintain an action under this section, of the Code, as the trustees of an express trust, there must be appropriate allegations in the complaint showing that while the action is brought *533in the name of the plaintiffs personally, it nevertheless is prosecuted to and for the benefit of another. Otherwise, there is no meaning to the other portion of the section which provides that “Every action must be prosecuted in the name of the real party in interest.” The complaint, as already indicated, alleged that the contract, for the breach of which a recovery was sought, was made by the plaintiffs personally, and while the contract is referred to and made a part of the complaint it will be found upon examination that that shows, upon its face, that it was made with the plaintiffs personally and not with them as the representatives of Stevenson & Go. It is not even suggested in the complaint, either directly or inferentially, that the action is brought for the benefit of W. F. Stevenson & Go., and if there were appropriate allegations to that effect, the proof offered by the plaintiffs upon the trial establishes the contrary. The plaintiffs were allowed to prove-—against the defendants’ objection and exception •— that subsequent to the delivery of the hemp in Hew York, Stevenson & Co. was paid for it by the plaintiffs. One of the plaintiffs testified: “Before this suit was brought, Stevenson & Company had received all they were entitled to for the goods mentioned in this contract with Milton & Company, so that we did not 'bring this suit for their benefit. We arranged to become the owners of this hemp ourselves, sometime within a month after the contract was made.”
By the allegations of the complaint, therefore, as well as by the . proof, Stevenson & Co. have no interest in the subject-matter of the action. The plaintiffs alone are personally interested in it. How, then, can a recovery be permitted to stand, on the ground that in bringing the action they were acting as the trustees of an express trust ? It hardly seems necessary to answer the question. In bringing the action the plaintiffs were not,, and from the very nature of things could not be •— no one else having an interest in the subject-matter of the contract — the trustees of an express trust. The case relied upon. in the prevailing opinion (Considerant v. Brisbane, 22 N. Y. 389) has nothing to do with the question. It is not in point, and if it were, it would seem to be an authority against the position taken in the prevailing opinion. In that case the payment provided in the contract was, by express terms, made payable to the plaintiff as agent of the foreign corporation, and. the *534allegations of the complaint in that- action showed that the' action ■was brought, not for the benefit of the plaintiff, but his principal. Here the court deliberately allows the plaintiffs suing on one right to recover upon an entirely different right ’without allegations or competent proof of that other right. But even assuming that the action could be maintained by the plaintiffs as the trustees of an express trust, I am. still of the opinion that the judgment should be reversed, for the reason that the proof failed to. show that W. F. Stevenson & Co. performed the contract on their part to be performed. The contract, it will be noticed, among other things, provided that Stevenson & Co. were to deliver to the plaintiffs 1,000 bales current Leyte, guaranteed equal good current quality Manila hemp. It is said in the prevailing opinion that this portion of the • contract was in effect a guaranty that the current Leyte should be equal to good current quality Manila hemp; “ that there should' be found, in the 1,000 bales of Leyte the same • quality of hemji which would be found in 1,000 bales of Manila.” ■ I am inclined to the view that this construction is the proper one, and, if it be so, then it is difficult'to see upon what principle of law a recovery could be had. The fact is uncontradicted that neither Stevenson & Co., nor the plaintiffs, offered to perform their contract by delivering hemp of the quality guaranteed. The contract called for “about (1000) one thousand Bales Current Leyte, guaranteed equal Good Current quality Manila.” Of the 1,000 bales offered, the arbitrators found, and the fact is uhcontradicted, that only 25 bales corresponded to the guaranty, the other 975 being inferior in quality.
It is undoubtedly a settled rule of law that a usage or custom in a trade, profession or calling, when it is reasonable,- uniform, well settled, not in opposition to fixed rules of law, not in contradiction of the express terms, of a contract, is deemed to form a part of the contract and to enter into the intention of the parties, but I am unable to see. how this rule has any application to the 1,000 bales which Stevenson & Co. had guaranteed to be of a certain quality. Can it be that, notwithstanding that guaranty, a • custom can be resorted to for the purpose of showing that the parties did not intend to convey a meaning which the word “ guarantee ” imports ? If it can, then- a custom can be resorted to for the purpose of varying, contradicting and even destroying a contract which the parties *535themselves have made, and this, as Í understand it, all of the cases hold cannot be done.
For these reasons I dissent from the conclusion reached, by the other members of the court. I think this judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event.
J udgment affirmed, with costs.