Bradford v. Drew , 46 Mass. 188 ( 1842 )

Shaw, C. J.

The defendant’s acceptance was of a conditional order, and only bound him to pay the sum named out of the proceeds of the drawer’s share m the fishing voyage described, first deducting a sum already advanced. It was payable at the end of the voyage, but only in case the drawer should “ make enough ” to meet it. The term “ end of the voyage ” could not be construed literally, viz., the arrival of the vessel, because the fish would then be green, and not in a marketable condition. But further ; the order was, to be paid in money, if “ enough ” &c. ; both which clauses imply that the fish were firs* to be sold, and converted into money, both to determine the amount coming to the drawer for his share, and to put the acceptor in funds to pay it.

Supposing the acceptance not payable till the sale of the fish, still it might be contended that, as the whole authority to sell was in the owner, the present defendant, if he unreasonably neglected to make sale, might be held, at the election of those interested, to have made them his own by his laches, so as to be accountable for the value, in cash. Porter v. Blood, 5 Pick. 54.

Upon the point of reasonable diligence, the court are of opin ion that the usage of owners, in regard to the time and mode of sale, ought to have been received. Every person making contracts in reference to any course of trade, or branch of business, is presumed to be acquainted with the usages of that business ; and in the absence of express and controlling stipulations, he is presumed tacitly to consent that the business shall be conducted conformably to the usage. Further ; it was a question of seasonableness, as to the time of the sale of the fish by the owner. Now, the usage of other owners, as to the sale of their own fish, has a strong bearing upon the question of seasonableness and propriety, as to the time of selling. Noble v. Kennoway, 2 Doug. 510.

For these reasons, the court are of opinion that the evidence of usage and custom in regard to the fishing business, which was offered at the trial, and rejected, ought to have been received, and that the jury ought to have been instructed, that if the defendant acted in good faith, and sold the fish within reasonable time — of which the usage and custom of the trade would be good evidence — and if upon such sale, and making up of the accounts of the voyage, there was nothing due to the drawer of the order, the defendant was entitled to a verdict.

Verdict set ande, and a nets trial granted