#### Alexander A. Smetz *vs.*William Kennedy.

Tried before his Honor Judge Butler, Barnwell, Fall Term, 1836.

*Judge’s Report.*— The plaintiff was a lumber factor in Savannah, and the defendant a lumber cutter living in Barnwell. The plaintiff was in the habit of receiving and selling defendant’s lumber. The lumber would remain on hand for some time, and plaintiff would retail it out to different purchasers ; and during the time defendant would draw on him, the plaintiff accept drafts, forward goods and make advances to defendant. The plaintiff contended that upon a fair settlement of accounts, the defendant was indebted $300, for which this action was brought. The defendant contended that plaintiff claimed too much ; that he had not accounted for all the lumber delivered j that he was not entitled *219io charge for commissions for acceptances of drafts, or on advances, but that he should be satisfied with his commissions for sale of lumber, and paying over the money, and interest on the advances made, when he had no funds in his hands at the time they were made.

The evidence was as follows:

Stephen Smith sworn on the part of the plaintiff. Has lived on Savannah river for sixty years, and has been in the habit of sending lumber to Savannah down the river. It is an. invariable custom for factors to charge commissions for acceptance ol‘ drafts, where they have no funds of the drawer in hand at the time. "Where goods are forwarded to the planter or lumber cutter, factors sometimes charge commissions, and sometimes not, on purchases made. The habit is uniform to charge interest on advances. Factors do claim the right to charge commissions on advauees also.

Charles Brown was sworn on the part of defendant. Was for several years engaged in the factorage business in Savaunah. When he had lumber on hand he never charged commissions for acceptance of drafts, if he had money in hands to pay drafts at maturity. When he had no funds in hand on account of lumber, at the maturity of drafts, he would advance the money and charge commissions and interest also. Factors claim this as their right, although in fact all do not charge their customers. The practice varies.

To shew that plaintiff had received more lumber than he had accounted for in account sales, James Calhoun was sworn. He assisted to carry rafts from defendant’s mill in February, 1831. He and Wilson Huff, delivered 39 rafts to plaintiff, in Savannah. When they received them at the mill, they were supposed to contain 1000 feet of lumber each. Binders were made to contain 1000 feet each. One was actually measured and contained that much, and all the other binders were made like it. The lot was to be paid by the 1000, and he considered each raft to contain "1000 feet.

Henry B. Hogg, says he measured two of the rafts that were delivered to Calhoun, near the mill. These two measured together, 2339 feet. He measured but two of a large number, but he thought all the rafts were like those he measured. Binders were made to contain raits of same size.

Brown was examined in reply by plaintiff. Lumber is frequently lost in going down the river ; lumber is always liable to deterioration and loss, when it remains on hand a great while. Lumber is in factors possession as soon as he receives it from raftsmen, while it is in water. It may be taken away by stream or tide before it is put in yard. Lumber is usually kept on dock or wharf, in the yard of factor. It is not kept in a house.

The principal question in this case, is, how much lumber ought the plaintiff to have accounted fori As it will appear from the account of sales, he had in his possession a great deal moro lumber than the rafts delivered to him by Calhoun in February, 1831. In *220his account of sales there is no' raft that was estimated beyond 30,003 feet. I mean large raft or fleet. The deiefdai.t toi tends that he should aceou.t toi 42,000 feet, according to the measure-*m<*nt of Hogg at the mill. Hogg’s measurement was hypothetical, for he measured but two small rails, and said that if all the others Contained as much, in proportion as these two, there would have been 42,000 feet that left the mill: and I suppose that the jury must, have found their verdict on this estimate. The jury did find but a small part of plaintiff’s claim, something over $100 ; and they must have given the defendant credit for 12,000 feet of lumber, not accounted for by plaiutiff. Now what measurement should prevail, that made at the mill, when the lumber leaves it, or that made by factor when he sells it ? Neither may be strictly correct; more lumber may leave the mill than is delivered to the factor, and there, may be less in fact sold by the factor than he received. At the time lumber is delivered to the factor he does not measure it, or give a receipt to the raftsman ; but he takes it in his dock yard, where it is liable to be stolen or destroyed, without his negligence. There is no custom to regulate the thing. I cannot think the measurement at the mill should prevail. And neither ought the factor to have the whole matter und.er his control. I think myself that the lumber ought to be measured when delivered to the factor, and he should account for it with a reasonable allowance for deterioration and loss. But this not being done in this case, I thought the jury might have struck the difference between what left the mill and what was sold. But what did leave the mill ? There is a difference of opinion as to that. The jury took the highest estimate in favor of the defendant. If the measurement at the mill should prevail, the jury had the right to take the estimate of either witness; but ought that estimate to be adopted 7 I thought not, and yet was not able to lay down a satisfactory rule ; and where there is no rule, custom should govern ; but then there was no distinct custom. And the jury was governed by the evideuce.

I thought the plaintiff was entitled to interest on the balance of bis account, and commissions on acceptances ; the jury found otherwise. Whether the plaintiff was entitled to commissions on advances, in addition to interest, I was doubtful. 1 rather thought not. The custom was not so universal as to make it a part of the contract between the parties ; and in the absence of custom principle is-against it,

A. P. BUTLER.

The plaintiff gives notice, that he will make a motion for a new trial on the following grounds :

1. Because the jury allowed the defendant credit for 12,000 feet of lumber, with interest thereon, without evidence.

2. Because the jury did not allow the plaintiff, his charges of commissions on acceptances and advances.

8. Because the jury did not allow the plaintiff, interest on the - balance due on his account;-

*2214. Because the verdict is in these and other respects contrary to law and evidence.

A. PATTERSON, *Plaintiff’s Attorney.*

Mr. Justice Evaj^s

- delivered the opinion of the court.

The grounds of appeal present three questions.

1. Did the plaintiff account for all the defendant’s lumber, which he received ?

2. Was the plaintiff entitled to commissions on his purchases of goods, acceptances, and advances ?

3. Was he entitled to inteiest on the balance of his account?

I propose to consider these questions in there inversed order.

1 think there can be no doubt, that interest should have been ah lowed on whatever balance was due to the plaintiff, on closing the account; all, or nearly all, the items of the account, are for cash paid on acceptances, or the purchase of goods, or advances ; all the cases establish the principle, that money loaned, or advanced, will bear interest. It was expressly so decided in the case of Cheesborough and Campbell vs. Hunter, 1 Hill, p. 400. On this ground, therefore, the verdict is clearly wrong.

A well established custom on any subject, is a part of the law of the contract, with a knowledge of which, the parties stipulate. But a custom to be binding as a part of *lex contracluum,*must be gene» ral and well understood. And if the usage be clearly established, that the factor has a right to charge commissions on goods purchased, and on the amount of his acceptances, when he has no funds to meet the payment of drafts at maturity, I think the jury should have allowed these items in the account. But I am satis, fied a different rule should prevail in relation to advances. These are in fact, loans of money, and to charge commissions and interest both, savor of usury, which is unlawful; and no custom or usage oan be allowed, which repeals the law of the land.

On the first ground it seems to me, that there was no good reason, why the jury should have adopted the estimate made by the witnesses, of the lumber at the mill. That estimate is hypothetical, and afforded no satisfactory evidence, that the same quantity was delivered to the factor ; but as this was a question of fact, I should not be disposed to disturb the verdict on this ground alone. But as. ’the verdict is clearly against law on the third ground, a new trial is ordered.

JOSIAB J. EVANS-

*222Patteeson, for the motion.

Elmore & Butler, contra.

Filed 14th February, 1837.

We concur,

RICHARD GANTT,

A. *P.*BUTLER.

JOHN B. O’NEALL,

J. S RICHARDSON, ou on3 ground.