Baer v. Glaser , 90 Mo. App. 289 ( 1901 )

GOODE, J.

We think this case is controlled by precedents in this State directly in point. A usage of trade general, uniform, certain and reasonable, is always recognized and enforced by the courts. Before it is binding on a party, however, it must either be so widespread that knowledge will be imputed to him, or he must be shown to have had actual knowledge of it. In this ease, plaintiffs must be charged with both actual and constructive knowledge, as the findings below were that way.

We see nothing immoral in the custom in question of selling and delivering ten ounces of thread to the pound, in view of the fact that a customer paid for no greater weight of thread than he bought. In all commercial affairs, contracts are supposed to be made with reference to the usages prevailing in the special business which is the subject-matter of the contract, and the meaning of words and terms used by dealers is adopted by the courts in construing their agreements, unless the custom contravenes some settled rule of law, is unreasonable, or is positively excluded by the very language of the contract. Nor is it sufficient to exclude consideration of a usage in the interpretation of a contract that the words of the latter are unambiguous if taken in their ordinary sense. Resort may still be had to extrinsic evidence to show they were not used in their ordinary sense, but in a sense attached to them by some commercial usage. So we think it was entirely competent to show, in this case, that ten ounces of silk thread signified, between dealers, not a full pound, but a trade pound.

It was held by the Supreme Court that it might be shown by a well-established custom, that two packages of shingles of a certain thickness, constituted a thousand, although in fact fewer than a thousand were in the packs. Soutier v. Kellerman, 18 Mo. 509. In that case, the plaintiff had ordered four thousand shingles and got only twenty-five hundred. Defendant was allowed to prove that by the custom of the lumber trade, he had filled the order.

This subject was fully gone over in a case where marble slabs were ordered of a specified thickness, which, when delivered, did not come up to the terms of the order and evidence was produced to show that the slabs, when sawed and before they were polished, were of the thickness designated, and that in the marble trade an order for slabs of a certain thickness, prepared for use, meant they should be of that thickness when they came from the saw. The buyer objected, claiming that under the terms of his order, the seller was bound to furnish slabs of the thickness specified when finished for use. This contention was overruled. The court said: “It does not follow that evidence of usage can only be received where the words of the contract are ambiguous. Such evidence is often received to show that words are used in a sense different from their ordinary meaning, as in Soutier v. Kellerman, supra. Such evidence is received on the theory that the party knew of the usage or custom and contracted with reference to it, and in such cases the evidence does not add to or contradict the language used, but simply interprets and explains its meaning.” Evans v. Western Brass Mfg. Co., 118 Mo. 548. See, also, Price v. Vanstone, 40 Mo. App. 207; Cole v. Skrainka, 37 Mo. App. 427; Smith v. Wilson, 3 Barn. & All. 728.

The finding below was that the appellants had actual knowledge of the fact, all along, that they were buying thread put up ten ounces to the pound, instead of twelve. . That finding we accept as true, and shall it be said they are entitled to a rebate, because they did not get twelve ounces to the pound ? In such circumstances, it is immaterial whether the custom claimed existed or not. Plaintiffs simply ordered so much silk and got' all they bought or paid for: To compel defendants to pay bank to them part of the price, would be to fix a price for the thread below what the .parties themselves fixed- it at in their dealings. The authorities above cited are conclusive, and the case needs no further discussion.

The judgment is affirmed.

All concur.