delivered the opinion of the Court. This is an action of assumpsit, on an implied warranty, alleged to have been made by the defendants to the plaintiff, upon a sale of certain French prints ; and the plaintiff, in various counts, alleges, that they were not the article of merchandise described, and that they were damaged. The sale having been made through the agency of auctioneers, the plaintiff now claims to recover of the defendants, as owners of the goods.

It is to be understood from the report and the course of the argument, that there was no complaint that the goods were not what they were described to be in the catalogue, to wit, superfine French printed muslins, but that they were damaged, and that 'he damage was not discovered till several weeks after the sale. It was conceded, that it was one of the conditions of sale expressed upon the catalogue, and stated by the auctioneers before the commencement of the sale, that no allowance would be made for damage, unless applied for within three days of the sale, at which time the bills must be settled. It was contended, that this limitation did not apply to the ewiers of the goods, but only to the auctioneers, and the plaintiff offered to prove, that according to the custom of trade in this city, goods were returned by purchasers at auctions and received by the owners, and an allowance made, after the expiration of three days, if within a reasonable time after the sale.

*18The plaintiff has argued the case as' if there were two dis tinct contracts with the plaintiff, one by auctioneers, and one by the owners of the goods, and that the restriction in question was only intended to prevent the plaintiff from proceeding against the auctioneers after the expiration of three days. But the Court are all of opinion, that this position is wholly untenable. The rule is, that where one makes a contract with an agent, and the principal is not disclosed, such party, when he discovers the principal, may consider the contract as made with the principal, and hold him responsible accordingly. Paterson v. Gandasequi, 15 East, 62. But when the party does so elect to proceed, he must consider the contract, in all respects, as if made directly with the principal, through the instrumentality of the agent. All the conditions and stipulations made by the agent, are binding upon the principal, and enure to his benefit, as if he had contracted personally. Such being the case, the stipulation which was made, that all claims for damages must be made within three days, was a part of the con-tract of sale which limited the defendants’ liability, and by which the plaintiff was bound.

In considering that this ivas not inserted merely for the benefit of the auctioneers, and that it must be considered that there were not two distinct contracts made, wre do not mean to say that such a stipulation might not have been made in apt and proper terms. Suppose it had been stated, that the auctioneers would not hold themselves personally responsible after three days, and after the settlement of the bills, but after that time all claims for damage or otherwise were to be made on the owners, such a provision might have been good.

It was argued, that the limitation of three days was unreasonably short; but the answer seems a plain one, that these were the vendors’ terms, and the plaintiff, by acceding to them and purchasing under them, has precluded himself from taking this-objection.

It seems to the Court also, that the evidence of custom, as offered, was plainly inadmissible. Custom is often of importance, to show how parties are to be understood, in the language which they have used ; but this is not such a case. Here was a claim for damage. The terms of sale were, that *19all claims for damage must be made within three days, and before the bills were settled. The usage had no tendency to alter or affect the terms or meaning of this stipulation. It was one which the parties might lawfully make, and if it varied from the common custom, it shows that these parties intended to make terms differing from those usually made ; conventio legem vincit. They had a right to make a law for themselves, and are bound by it.

Plaintiff nonsuit.