#### Helm *vs*Bryant, &c.

*December*20.

Error to tiie Lincoln Circuit.

Assumpsit.

*Case*17.

The case stated.

*Contracts. Ton weight, SfC.*

A sale of hemp by the 100 cwt., or hundred wei’t is a sale of 112 lbs., as the cwt., or hundred wei’t --the statute of 1837: (3 *Stat. Law,*267) does not change the number of lbs. in the cwt. or hundied weight, tho’ it fixes the number of lbs. in the ton.

Chief Justice Marshall

delivered the opinion of the Court.

This action of assumpsit was brought to settle a dispute between a vendor and vendee of hemp, upon the question how the quality and price were to be estimated under a verbal sale of “ a lot of hemp estimated at five tons, at $4 62|- per cwt., or per hundred weight, nothing having been said as to the number of pounds which should constitute the cwt., or hundred weight.” The case upon the law and facts having been submitted to the Judge without a jury, he decided that the cwt. or hundred weight, was to be estimated as containing one hundred and twelve pounds, and gave judgment for the defendants. The plaintiff’s motion for a new trial was overruled, and he brings the case to this Court for revision.

The evidence authorized the judgment unless the question involved is decided by the act of 1837, (3 *Stat. Law,*267.) That act declares that “ in the construction of contracts made after the first day of March 1837, for the sale or purchase of hemp, the quantity shall be ascertained by estimating a ton gross as containing two thousand pounds, avoirdupois weight, and after that, rate, unless otherwise expressly provided in the contract: Provided however, that nothing herein contained shall be construed to affect the standard of the pound weight.” This statute fixes in the contracts referred to, the number of pounds in a ton, and if this sale had been at so much per ton, as the ton must have been measured as directed by the statute, the price of any number of tons and of the fractional part of a ton must have been ascertained by the same rule. But this *65xvas a sale, not by the ton, but by the cwt. or hundred weight. And the Statute gives no definition or measure of cwt, or a hundred weight, and furnishes no rule for ascertaining the number of pounds contained in it.

In Tomlin’s law dictionary title weight, in speaking of avoirdupois weight it is said “in this weight twelve pounds over are allowed to every hundred, so as one hundred and twelve pounds make the hundredweight,” for which is cited *Dalt.*248. And in commerce the word ton or tun is understood to mean twenty hundred gross or twenty hundred weight, each hundred consisting of 112 lbs. The Statute doubtless has reference to this meaning of the word ton, and intends to give it a-different meaning in contracts for the sale of hemp, where the parties do not define it. The effect of the Statute where it applies, is to reduce the ton from twenty hundred weight of 112 lbs. each, to twenty hundred pounds. If the term cwt. had no other use or application but as designating the twentieth part of a ton, then the Statute, by fixing the quantity of a ton and its parts, would fix the meaning of this term. But .the term has an independent and indeed a common meaning, as designating not the twentieth part of a ton, but one hundred and twelve pounds; and we cannot perceive that the Statute altered this meaning, or attempted to fix the number of pounds which shall be understood to be designated by the term *cwt.,*or hundred weight. It would have been so easy to say, “the quantity shall be ascertained by estimating the ton, as containing 2000 lbs., and the hundred weight, or cwt., as containing *100*lbs., and after that rate,” that the omission to include the latter term, would almost seem to have been intentional. At any rate, the omission tends to show that it was not present to the minds of the Legislature. And we cannot say that because they have deemed it expedient to change or to fix the measure or mode of estimating a ton, they must be supposed to have intended thereby to change or fix the estimate of a cwt. or hundred weight. ' If they had fixed the *66meaning or quantity of the term cwt. or hundred weight, that alone might have been understood as fixing the meaning or quantity of the ton, because the ton is measured and ascertained by hundreds. And it is only because 112 lbs. make a cwt. or a hundred weight, that a ton which independently of the Statute is twenty hundred weight, contains twenty-two hundred and forty pounds. But the cwt. or hundred weight is measured or ascertained by pounds, and is regarded as consisting, not of so many parts of a ton but of so many pounds, that is of 112 lbs. And to say that hereafter the ton shall consist of 2000 lbs, is but saying that it shall consist of twenty hundred pounds instead of twenty hundred weight, and furnishes no criterion for estimating the' number of pounds in one hundred weight. Two thousand or twenty hundred pounds did not before the Statute, designate the same quantity as twenty hundred weight. Independently of the Statute the last quantity which was the largest made a ton, the first fell short of it. Under the Statute the first quantity makes a ton, and as the-Statute changes the quantity or measure of a ton from twenty hundred weight to two thousand pounds, it thus in effect displaces or abolishes the cwt. or hundred weight as a fractional part or measure of the ton, which no longer consists (so far as the Statute operates,) of so many hundred weight, but of so many pounds. That twenty hundred weight which was formerly the exact measure of a ton should now exceed, it by 240 lbs., is not more absurd than that 2000 lbs. or twenty hundred pounds which formerly fell short of a ton by 240 lbs., should now be the exact measure of a ton. The meaning and quantity of the ton as fixed by custom, have been changed by Statute. But the Statute says nothing about the cwt. or hundred weight, which had by custom a definite meaning independent of its relation to the ton. And although its relation or office as a measurer of the ton is displaced, its import independent of that relation still remains, because it is not dependent upon the import or quantity of the ton which alone the Statute regulates.

*67
      *Bell*for plaintiff; *Fox*and *Turner*for defendants.

What may have been the intention of the Legislature except as it is evinced by the Statute itself, we have no means of ascertaining. There is in our opinion nothing in the Statute to show that the Legislature intended to change the meaning of the term cwt. or hundred weight as fixed by custom, or that that meaning except so far as it entered into the import of the word ton, was considered to be of evil consequence. It would be but conjecture to say that this was deemed an evil, and was intended to be remedied by the Statute, when all reference to it is omitted.

Wherefore the judgment is affirmed.