ant was concerned, on the credit given to him by the Hull bank, not by their London agent. Price & Co., in writing to Harrison, Watson & Co., after the bankruptcy, say, "We forward a statement of the drafts accepted on your account," and in truth the acceptance of the drafts was on account of the Hull bank. In that view it seems to us that the plaintiffs, the assignees of Harrison, Watson & Co., have a right to maintain this action.

Rule absolute accordingly.

1861.

BARKWORTH

V.

ELLERMAN.

IN THE EXCHEQUER CHAMBER.

(Error from the Court of Exchequer.)

ERROR

FIELD V. LELEAN.

on a bill of exceptions.-The declaration stated that the plaintiff, on the 18th June, 1859, at the request of

the defendant, bargained with the defendant to sell and sold to him, and the defendant then agreed to buy and bought

mine, they signed bought respectively

and sold notes,

as follows:

Wheal Char

of the plaintiff, 250 shares in a certain mine and mining the former association, called and known by the name of "The Wheal of which was Charlotte Mine," in the parish of Pellamethnoe, in the "Bought, T. F. 250/5120ths county of Cornwall, at and for the price of 27. 5s. per share, shares in the whole price of the said 250 shares amounting to a large lotte, at 27. 58. per share, sum of money, to wit, 5627. 10s.; the said shares to be de- 5624 10s., for livered to the defendant and paid for by him, one half in half in two two months and the other half in four months from the day half in four and year aforesaid; and in consideration thereof, and that months. In

payment,

months, and

an action for not accepting

the shares :-Held, that evidence was admissible of a custom among brokers in mining shares, that, in contracts relating to the sale and purchase of such shares, the delivery takes place at the time appointed for payment.

1861.

FIELD

v.

LELEAN.

the plaintiff at the request of the defendant, had then promised the defendant to deliver to him the said shares as aforesaid, the defendant then promised the plaintiff to accept and receive the same of and from the plaintiff, and then to pay the plaintiff for the same in the manner in that behalf aforesaid. And the plaintiff says that although the said period of two months from the day and year aforesaid had elapsed before the commencement of this suit, and he, the plaintiff, within that period, was ready and willing to deliver the said shares to the defendant on the said terms and according to the said agreement, and although he, the plaintiff, did all things necessary on his part to entitle him to have the same accepted by the defendant on the terms aforesaid, and the time for so accepting the same has elapsed, yet the defendant made default in accepting the same and in paying the price thereof, according to the terms and true intent and meaning of the said agreement, and the plaintiff hath thereby incurred expense and sustained loss in keeping the said shares and in re-selling the same.

Pleas (inter alia).-First, non-assumpsit. Secondly: that the plaintiff was not ready or willing to deliver the said shares as alleged.-Issues thereon.

At the trial, before Pollock, C. B., at the London Sittings after Michaelmas Term, 1859, the plaintiff gave in evidence the bought and sold notes. The bought note, which was signed by the defendant, was as follows:

"4, Cushion Court, Old Broad St., London.

"June 18, 1859.

"Bought, Thomas Field, Esqr., 250/5120ths shares in Wheal Charlotte, at 21. 5s. per share, 562l. 10s. Od. (Five hundred and sixty-two pounds ten shillings), for payment half in two and half in four months.

"William Lelean."

(The case then set out the sold note which was in the

same terms).

The plaintiff further proved that the Wheal Charlotte Mine was a mine conducted on the cost-book principle, and that the defendant and the plaintiff were both of them brokers in mining shares. The counsel for the plaintiff further offered to prove, by parol evidence, a usage or custom among brokers in mining shares that, in contracts relating to the sale and purchase of such shares as the contract above mentioned, the delivery of the shares takes place concurrently with and at the time agreed upon between the vendor and purchaser for the payment for the shares to the vendor by the purchaser; and that the purchaser cannot demand to have the said shares delivered to him by the vendor before the time of payment for the shares agreed upon between the vendor and the purchaser. Whereupon the counsel for the defendant submitted that the evidence as to the usage or custom so offered to be given to the plaintiff was not good or admissible in law upon the said first and second issues or either of them, and that the said issues ought to be found for the defendant.

The Lord Chief Baron thereupon held and affirmed that the evidence as to the usage or custom, so offered to be given by the plaintiff as aforesaid, was not good or admissible in law. Whereupon the jury found a verdict for the defendant. The counsel for the plaintiff having tendered a bill of exceptions to the above ruling, the case was argued in Trinity Vacation, 1860 (a), by

Montague Smith (Coleridge with him), for the plaintiff.The contract being silent as to the time for the delivery of the shares, evidence of the custom was admissible for the purpose of shewing that the delivery and payment were to be cotemporaneous. [Willes, J.-In some cases the pay

(a) June 19. Before Wight- J., Willes, J., Byles, J., Blackman, J., Williams, J., Crompton, burn, J., and Keating, J.

1861.

FIELD

v.

LELEAN.

1861.

FIELD

t.

LELEAN.

ment is made before the shares are delivered.] As a general
rule evidence of usage is admissible where it merely seeks
to add an incident to the contract, but does not control,
nor is inconsistent with it. This custom is not inconsistent
with the contract, and to incorporate it is merely to carry
out the intention of the parties. [Wightman, J.—Suppose
there was no evidence of usage, when would the shares be
deliverable?] Within a reasonable time. It is difficult to
reconcile all the cases on this subject. [Blackburn, J.-
You must contend that Spartali v. Benecke (a) was wrongly
decided.] The judgment of the Court in that case pro-
ceeded on the ground that the usage would, in effect,
advance the time of payment stated in the contract, and
was therefore inconsistent with it. The error in that case
lies in supposing that evidence of usage is only admissible
when the contract is ambiguous in its terms. In Brown v.
Byrne (b), the bill of lading expressly stated the rate of
freight payable, yet it was held that evidence was admissi
ble of a custom by which the shipowner, on payment, was
bound to allow three months' discount. The principle on
which the doctrine proceeds is, that the parties must be
taken to have contracted with reference to the custom or
usage.
There are two branches of the rule: one relates to
the language used, and evidence is admissible to explain
its mercantile or trade meaning; the other has reference
to known usages which prevail as to the subject-matter of
certain contracts, and in that case such incidents may be
annexed, provided they are not repugnant to, or incon-
sistent with the written contract. The French law agrees
with our own in annexing incidents to contracts. [Willes, J.,
referred to Toullier, de Droit Civil, vol. 6, chap. 3, sect. 5,
p. 304, 314, 319. Wightman, J.— Syers v. Jonas (c) is an

(a) 10 C. B. 212.

(b) 3 E. & B. 703.

(c) 2 Exch, 111.

express authority that where the contract is silent evidence is admissible, not merely to explain the terms used, but to annex customary incidents. Blackburn, J.-That doctrine was affirmed in Humfrey v. Dale (a).] In Parker v. Ibbetson (b) evidence was admitted to prove that, by the custom of a particular trade, a yearly hiring was determinable by a month's notice at any time; and it was left to the jury to say, first, whether such a custom existed; and secondly, whether the contract was made with reference to the custom. The jury found that the custom was proved, but that the hiring was a special hiring, to which the custom did not apply. [Wightman, J.-In the judgment in Spartali v. Benecke (c), there is a mistake with reference to Syers v. Jonas (d): it is said, "the evidence was received, upon the ground that the incident sought to be annexed was not inconsistent with the contract;" but the evidence was rejected. Perhaps it means, "the evidence was held to be admissible, upon the ground," &c.] In Lucas v. Bristow (e), the plaintiffs sold to the defendant "fifty tons best palm oil," expected to arrive, &c., at 407. 10s. per ton: wet, dirty, and inferior oil, if any, at a fair allowance." The oil, on arrival, contained only one-fifth of the "best" oil; and, in an action for not accepting it, it was held that evidence was admissible to shew that, according to mercantile usage, the contract was satisfied if the oil delivered contained a substantial portion of "best" oil; and that such evidence was for the jury. [Wightman, J.-In that case there was an uncertainty on the face of the contract. Wet, dirty, and inferior oil was to be taken at an allowance, and it was uncertain how much of the "best," and how much wet, dirty, and inferior oil would be in each cargo. Therefore

(a) 7 E. & B. 266.
(b) 4 C. B., N..S. 346.
(c) 10 C. B. 212. 226.

VOL. VI.-N. S.

Y Y

(d) 2 Exch. 111.
(e) E. B. & E. 907.

EXCII.