Cowles v. Sgobel & Day

Finch, J.

While the amount involved in this case is very small, there is presented a matter of importance to the particular business.

The plaintiff, a grower of fruit in Oregon, delivered to defendant, a commission merchant, two boxes of Bartlett pears to be shipped to New York and sold for plaintiff’s account. The shipment was part of a carload of fresh fruit consigned to the defendant and composed of boxes of different size pears. Upon the arrival of the carload of pears in New York city the top layer of boxes of pears was found to be riper than the others, which is a customary condition, owing to the greater heat at the top of the car. The defendant sold the entire carload of pears at the dock, in separate lots graded according to size and condition; that is, the largest size pears being the size shipped by the plaintiff brought one dollar and seventy cents, a box for those in prime condition, called “ greens,” and one dollar and fifteen cents a box for those of the same size, which were at the top of the car, called “ ripers.” The other fruit shipped in the same car brought one dollar and forty-five cents and one dollar and thirty cents per box, respectively, according to size, for the “ greens,” and one dollar and fifteen' cents for the “ ripers.” The price obtained for each lot graded according to size is conceded and also that the pears shipped by the plaintiff were of the largest size, and that those of them which were sold in the lot of “ greens ” brought the highest price. The plaintiff claims to be entitled to the average price brought by this lot, including both “ greens ” and “ riper»,” less the pro rata share per box for freight and other shipping expense, commissions, etc. The defendant, on the other hand, claims the plaintiff is entitled to only the average price received on the whole carload of pears, disregarding the various sizes of fruit and less the same freight and expenses, basing this contention upon an alleged custom of the trade. It appears that so many carloads of fruit are received in New York city at the season when fruit is ripe for shipping that it is the custom to segregate all the boxes of ripers without ascertaining to what shippers such losses belong, and in the same manner to grade according to size all the remainder of the fruit. Because of this no shipper is ever able to ascertain whether his fruit arrived as “ ripers ” or in good condition. The plaintiff makes no objection to this custom and both parties thus concede that the loss due to “ ripers ” should in fairness be pro rated equally among all the shippers in the same way as freight and expenses since it is a matter of chance as to which boxes shall be packed in the layer next to the top of the car and so become “ ripers.” By means of this custom therefore the plaintiff has obviated what would otherwise be incumbent upon him to show, namely, whether his pears were received as “ ripers ” or “ greens.”

The defendant seeks to establish another custom to which the plaintiff strenuously objects and this is the real issue in the case. This alleged custom would permit the defendant to establish the same average price for every box of pears in the car, regardless of size and regardless of the amount received by the defendant for the different sizes. The defendant arrives at this average price by dividing the total amount received for the sale of all the boxes of pears in each car by the number of boxes in the car. A mere statement of this custom carries its own refutation since the plaintiff is clearly entitled to have the defendant account for the value of the goods shipped to him and such a custom would give the shipper of an inferior grade of fruit a great advantage and would discourage the production and shipment of the more valuable grades of fruit. A custom to be enforced by the court must be reasonable (Fuller v. Robinson, 86 N. Y. 306, 309) and hence the court should not enforce so inequitable and unreasonable a custom. Even assuming, however, that this custom would otherwise be allowed there is another and fatal objection to it, namely, that it does not appear either that plaintiff had knowledge of this custom or that in default of such knowledge that the custom had existed for so long a time as to hold that the plaintiff should have had knowledge of the same. Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307.

It follows that the plaintiff is entitled to recover an amount for his two boxes of fruit measured by the amount received for a box of fruit of the grade in which his fruit was sold, less his pro rata share of freight and other shipping expenses and commissions, and less his pro rata share of the ‘‘ ripers ’ ’ as pro rated on the whole number of boxes in the carload. Had the entire carload been sold as a unit without classification a different question might have been presented, and the defendant’s claim of the impracticability of classification as to sizes would have had some force. But where there was in fact such classification I can see no good reason for awarding to plaintiff a less amount than it is conceded his fruit was worth less his pro rata share of freight, express and depreciation.

The judgment should, therefore, be reversed, and a new trial directed with thirty dollars costs to appellant to abide the event.