Buyck & Cain v. Schwing , 100 Ala. 355 ( 1893 )

STONE, C. J.

Schwing, as a witness, was asked by his own counsel: “What was the general custom among ware-housemen in the city of Louisville, Ky., at the time the contract was made with the defendants, as to the insuring goods stored in such warehouses ?” He answered that “it was the general custom of warehousemen in the city of Louisville, Ky., at that time, to keep the property of their customers insured in open policies taken out in the name of the warehousemen, which covered the property they owned, or held in trust, and to charge the customer for such insurance at the rate of one-eighth of one per cent.' per month on the value of his property covered by the policies.” There was an objection to the question and also to the answer, each of which was overruled, and the defendants excepted separately to each ruling. This was the entire testimony of such custom.

The court, at the instance of plaintiff, Schwing, charged the jury, “That if there was any general custom in reference to the mode of conducting the business of insurance by commission merchants of customers in Louisville at the time of the contract in this case, the terms of the contract are to be interpreted in the light of such custom, and the parties are presumed to contract in reference to such known usage and custom, unless the terms of the contract are inconsistent therewith.” There was an exception to this charge.

In Barlow v. Lambert, 28 Ala. 704, we defined the rule in reference to custom as an element of a contract, and declared the function or office it will be permitted to perform. It is only evidence of fact, not of law, in cases where the contract is expressed in language of ambiguous or of doubtful meaning, or is silent upon some material inquiry of fact. To establish such custom, and make it operative in any given case, it must be reasonable, not against the law or public policy, not opposed to any express term of the contract, and must be so general and so known, as to justify the presumption the parties knew of it, and contracted in reference to it.—Desha v, Holland, 12 Ala. 513; Smith v. Rice, 56 Ala. 417; M. & M. Ry. Co. v. Jay, 61 Ala. 247; Antomarchi v. Russell, 63 Ala. 356; Powell v. Thompson, 8 Ala. 51; Haas v. Hudmon, 83 Ala. 174; Sherman v. Skaggs, 73 Ala. 446; E. T. Va. & Ga. R. R. Co. v. Johnston, 75 Ala. 596; Wilkinson v. Williamson, 76 Ala. 163. In German Amer. Ins. Co. v. Com. Fire Ins. Co., 95 Ala. 469, we declared it to be “well settled that proof of such local usages will not raise up a presumption of a knowledge of their existence on the part of one engaged generally in the business to which they pertain in a certain city, at least where the domicile of the party sought to be charged is elsewhere; or in other words, in order to create even a prima facie presumption that a party has knowledge of a usage incident to a particular business about which he is engaged, the usage must be shown to be a general one in that business, in such sort as that it would be unreasonable to sujepose he was ignorant of it.”

The record before us contains no direct testimony of the •residence of Buyck & Cain when the acts were done which gave rise to this suit. It was agreed on the trial that the terms of the contract under which the goods were purchased, were correctly set forth in a letter of authority and instructions written by Buyck to Cain, his co-defendant. The letter was dated Wetumpka, Ala., and was addressed to Cain at Louisville, Ky. The warehouse in which the goods were stored, and in which they were burned was the property of Schwing and his partner, and was in Louisville, Ky. The present suit was brought in Montgomery county, Alabama, and process was served on Cain in that county, while Buyck was brought in by branch summons executed in Elmore county, Ala., the county in which Wetumpka is situated. The inference these facts would justify would be that Balmforth & Co.—the partnership of which Schwing is the surviving partner—resided or did business in Louisville, Kentucky, that Buyck & Cain resided in Alabama, and that when the order was given to make the purchase, Cain was in Louisville, Kentucky.

We hold the City Court erred in giving the charge copied, above. It ignores all inquiry as to the length of time such custom had prevailed, and of defendants’ knowledge, or opportunity for acquiring knowledge, of its existence.

lfit.be found, upon proper evidence and a proper charge, that such custom did exist, and that the defendants in the City Court—appellants here—are chargeable with notice of such custom then it would not necessarily follow as matter of law, that they' are responsible for any part of the expense of enforcing the liability of the insurance companies for the loss. They are responsible, and should be so held, for their proportion of the expense so incurred, so far, and only so far, as the same was, or appeared to be reasonably necessary and proper. There was no attempt made, so far as the record informs us, to obtain the authority or sanction of Buyck & Cain that any extraordinary expenditure should be incurred in prosecuting the suits against the insurance companies. The circumstances indicate that correspondence with them would not have been difficult. The itemized account of expenses certainly shows charges that are unusual, alike in their nature, frequency and amounts. Why it should be necessary to retain witnesses on continuous pay, when they had not been subpoenaed, and why incur many other items of expenditure, we are not able, by the aid of anything shown in the transcript, to perceive. Witnesses appear to have been paid monthly, and generally weekly, for about three and a half years. There is only one month, September, 1888, in which no charges of this kind appear. The gross sum claimed to have been so paid, appears to have reached between six and eight thousand dollars—of which, it would seem—probably not one thousand dollars were recovered back in taxed costs, although all the suits that were tried were gained against the insurance companies; while the others were compromised, Schwing realizing nearly all he claimed. Nor can we perceive why it should be necessary for Mr. Schwing to have an office, in connection with the prosecution of the suits against the insurance companies. If the authority or sanction of Buyck & Cain was not obtained for incurring these extraordinary expenses, they are not proper charges in the account sued on in this case, so far as we are informed by the record; and it states it contains all the evidence.

Under these principles we hold that charges 1 to 5 inclusive, and charge 7, asked by defendants, were, each of them, properly refused. Charges 6 and 8 ought to have been given. Charges 9, 10 and 11 were properly refused, for we cannot, on the evidence found in the record, assert as matter of law that those expenditures were not reasonably necessary, and therefore proper. Charge 12 was properly refused. We cannot assert, as matter of law, that all of those items of expense were improper. We have sufficiently indicated our view on this subject; and the same may be said of charge 15. Charges 13, li, 16 and 17 are in their nature arguments and were properly refused on that account, without considering any other.

Beversed and remanded.