A. Fatman & Co. v. Thompson & Taaffe

delivered the opinion of the court.

The only practical question is, whether the usage in dispute was a part of the contract of sale; for, if it was, it was competent to prove it; and, consequently, there was no error on the part of the court in receiving the evidence, or in rendering the j udgment.

Whenever a usage of any particular trade or place is established to exist, the law, as we understand it, implies on the part of him “ who contracts or employs another to con*484tract for him, upon a matter to which such usage or custom has reference, a promise for the benefit of the other party, in conformity with such usage; provided, there be no express stipulation between them which is inconsistent with such usage." This is the language of Chitty, in his work on Contracts, p. 18, and is fully sustained by the authorities he quotes. The contract of sale is made in .reference to the custom which becomes an essential part of the agreement between the parties. The seller contemplates it when he bargains, and the buyer may well rely upon it for his indemnity. Its reasonableness must depend, in a great measure, upon the place where the contract is made, as well as upon the nature of the commodity sold. When once established, it becomes the rule of the trade, and the dealer in the article sold can not protect himself by asserting his ignorance of the usage. If it is a part of the law of the place, the merchant is bound to know it; he can not exclude himself from the liabilities which attach to others engaged in the same business. 10 Adolph, and El. 27, Sutton v. Tatham; 1 Exch. 425, Bayliffe v. Butterworth.

This general rule has been extended to cover implied warranties, as they are clearly within the principles where the usage is a part of the contract.

Thus in Jones v. Bowden, 4 Taunton, 853, Justice ITeath referred to a case where an action was brought on the sale of sheep, sold as stock, there being evidence that, by the custom of the place, stock were understood to be sheep, it was held that this amounted to an implied warranty, and the jury were so ordered to find.

We think it was perfectly competent to prove that the usage relied upon existed. It was not unreasonable, it was generally known, and had, for years, been the rule of the trade.- It seems to have been acted upon, and understood to be a settled rule; and in our opinion, there is no error, in the record which will authorize us to reverse the judgment.

Judgment affirmed.