#### William W. Parrott *et al. versus*Charles Thacher *et al.*

*A*usage of a particular business is not sufficiently proved by the testimony of only one witness in support of it, where another witness equally familiar with the business denies it, and where other witnesses on die subject might be had.

Therefore, where the plaintiffs’ case depended on their proving the usage of a particular business, with which many persons were conversant, and they only offered one witness to prove it, and the usage was denied by a witness for the defendants, who had the same means of knowledge as the plaintiffs’ witness, a verdict found for the plaintiffs was set aside and a new trial granted.

Where there are two distinct grounds on which a verdict of a jury may be supported, and on the judge’s questioning the jury it appears that they are not al! agreed upon either ground, but that a part support it on one ground and a part on the other, whether a new trial will be granted, *quare.*

*It*seems, that in such a case the judge may properly inquire of the jurymen, which ground they adopted.

This was assumpsit for goods sold and delivered, and on the following note, viz.: — “For value received in N. E. rum for use of myself and owners of Brig Ida, I promise to pay *434Horace Scudder or order 519 dollars 53 cents, on demand, with interest after six months. For myself and owners of Brig Ida. Feb. 28, 1828. *Mien*Hallett.” The note was indorsed by Scudder to the plaintiffs, without recourse. The note also contained an indorsement by Scudder, acknowledging the receipt of $ 163-67, “ being net account of sales of 38 barrels of gin, after deducting 100 dollars, amount of an order accepted to pay Joseph Swan out of the proceeds of said gin.”

At the trial, before *Wilde*J., it was admitted, that the defendants and Allen Hallett were joint owners of the brig Ida, which was built to run as a regular packet between the ports of Boston and Baltimore. Scudder being called as a witness by the plaintiffs, testified that he, being a commission merchant in Boston, sold a quantity of N. E. rum belonging to the plaintiffs to Hallett, who was the master of the Ida, on the credit of her owners ; that the rum went on board of her; that he took the note in payment; that he, Stanton, Fiske & Nichols, and the defendant Thacher, were agents to procure freights and passengers for the Ida ; that it had been a general practice for masters of vessels, in this business, to take up goods on account of the owners, when a full freight could not be procured ; that Hallett proceeded in the Ida to Baltimore, where, failing to sell the rum, he shipped it to Charleston, where he exchanged it for 38 barrels of gin, which he shipped to Boston, and which, on its arrival, was placed by Warren Hallett, a brother of Allen Hallett and one of the defendants, in the witness’s hands to sell on account of this note ; and that he accordingly sold the same, and made the indorsement of the proceeds on the note. Allen Hallett died on his passage from Charleston to Boston.

On cross-examination this witness stated, that there was an understanding between him and Allen Hallett, that the proceeds of the rum should be sent to him, though there was no strict bargain to that effect. He admitted that he never consulted with the defendant Thacher, who resided in Bos'on, and was known to him to be one of the owners, as to the sale of the gin, or the purchase of the rum by Allen Hallett ; and that Thacher never had notice of the note, until after Allen *435Hallett’s death, and was not called on to pay the balance due upon it, until after Allen Hallett’s estate had been represented to be insolvent. The witness said, that he expected that the note would have been paid by Allen Hallett, and therefore did not apply to the owners. He also testified, that Allen Hallett, some time before he was in the Ida, had been master of the Helen, which belonged to the Union Line of Baltimore Packets, and that he had several times sold him goods on the credit of the owners, which goods had gone to the credit of the con cern, and the purchases had been ratified by them ; but that he did not know that the purchase of rum in this case was known to the owners of the Ida, at the time it was made. He supposed, however, though he did not certainly know, that it was known to Warren Hallett at the time he' put the gin into his hands. Here the plaintiffs rested their case.

The defendants called Francis Stanton as a witness, who testified that he had been concerned in the lines of packets between Boston and Baltimore and Boston and New York, for fifteen or twenty years ; and the house of Stanton, Fiske & Nichols, to which he belonged, had been, during that period, agents for those lines of packets, and -still were for the New York packets; that he had never known the masters of these vessels take up goods on the credit of the owners, in Boston or any other port; and that there was not, to his knowledge, any such general usage or practice. He said, however, that it was usual, in the Union Line, to permit masters, when they had short freight, to purchase flour and other merchandise out of the stock, which consisted of funds on hand derived from the earnings arising from freight and passengers and profits of these purchases, but not to make purchases on credit, or otherwise than with *the*stock ; and that the stock so purchased belonged to the owners.

The judge instructed the jury, that unless they were satisfied from the evidence, that Allen Hallett was expressly or impliedly authorized by the defendants to purchase the goods for them or on their credit, the plaintiffs bad not maintained their action ; and that the burden was on the plaintiffs to prove that Hallett had that authority. The jury were also instructed, that there being no express evidence of such authority, they *436should find for the defendants, unless they were satisfied that there was some usage of trade authorizing the master to bind his owners, or that the goods purchased came to the use of the owners.

The jury returned a verdict for the plaintiffs, for the balance due on the note, deducting the indorsement of $163"67 with interest. On inquiry, the foreman stated that the jury had rendered their verdict on the ground of a general usage of masters of packets in this line to purchase goods on the credit of their owners ; but another juryman stated, that he and some of the rest were of opinion that'there was sufficient evidence to prove that the rum came to the use of the defendants.

The defendants moved for a new trial, because the verdict was against both law and evidence ; and they also excepted to the verdict, on the ground that the $ 100 paid to J. Swan, being part of the proceeds of the gin, ought to have been applied towards payment of the note.

Warner, for the defendants,

contended that the verdict was against the evidence. No express authority for Allen Hallett to make the purchase on the credit of the owners was proved. Such an authority was "not incident to him merely as the master of the vessel. The usage attempted to be proved is unreasonable, because the right of purchasing goods is not necessary for effecting the business for which masters of vessels are appointed. Besides, the evidence did not prove the usage. He cited 2 Stark. Ev. 57, 60, 254, 450, 451, note 2 ; Abbott on Shipping, 126 *et seq. ;*3 Chit. Commerc. Law, 196, 197, 204; *Freeman*v. *East India Co.,*5 Barn. & Ald. 617 ; 1 Holt on Ship. 379, 384, 387, 388, 405, 416; *Boucher*v. *Lawson,*Rep. Temp. Hardwicke, 85 ; *Ellis*v. *Turner,*8 T. R. 531 ; *Dewell*v. *Moxon,*1 Taunt. 391 ; *The*Mercurius, 1 Rob. Adm. R. 84 ; *The Vrouw Judith,*1 Rob. Adm. R. 151 ; *Smith*v. *Wright,*1 Caines’s R. 43.

*Curtis, contra,*

to show that the Court ought not to grant a new trial, where there was evidence on both sides, cited *Hammond*v. *Wadhams,*5 Mass. R. 354; *Brooks*v. *Barrett,*7 Pick. 96.

Parker C. J.

delivered the opinion of the Court. We are 0f opinion that there must be a new trial in this case, ob *437account of the defect of evidence to prove that Capt. Hallett was authorized by the owners of the vessel to make purchases and give promissory notes for them.

There being no express authority, it was supposed to be implied from the usage of this particular trade, or because the rum purchased went to the use of the owners, or because there was a knowledge of the purchase on their credit and an acquiescence in it; none of which facts are made out by evidence sufficient to authorize the jury to find a verdict for the plaintiffs.

In regard to usage, it is proved only by the evidence of Scudder; and even his testimony hardly proves it; for he says, it was a *general practice*among masters of vessels in this line of business, to purchase goods on the credit of their owners when there was a deficiency of freight. Such a practice may exist short of a usage. And it should seem, when he comes to particularize, that his knowledge of that practice was derived from his transactions with another line of packets, where it may have existed and not with this line. Such a practice may have existed among masters of vessels, and yet the owners may never have assented to it; and without such assent, the practice would not bind them. In the case of the Union line of packets, to which the practice mentioned in this testimony had relation, he says, that the property purchased by the masters went into the accounts of the concern, and the purchases were ratified by them. This is a case without any such account and without any ratification. But suppose that the amount of his testimony was, that there was such a usage, we think it not sufficiently proved. Usage is a thing which must be public and notorious, at least known to all masters of {ackets in this trade. Scudder stands alone in his testimony, and is directly contradicted by Stanton, an owner and agent of the Union line of packets. These witnesses may be supposed equally intelligent and honest. Stanton may have had a bias against establishing a usage, which might render him liable. Scudder was interested as a commission merchant, to avoid the charge of negligence in selling the plaintiff’s goods to a man unable to pay. Now here is a subject of common knowledge, proved by one witness and contradicted by another. It is not the rase of a fact proved by the testimony of one witness and *438contradicted by another, in which the jury may prefer positive to negative evidence. When the question is of a custom or usage, and it is not known to those who, from their business and connexions, have the best means of knowing it, ignorance of it is, in some sense, positive testimony that it does not exist.

Suppose the question to be as to the existence of a usage of trade in some foreign port, according to which the rights of . parties are to be decided, — and that there are two foreign witnesses, both merchants belonging to the place, and dealing in the same business, and one testifies in support of the usage and the other against it, — can it be said that the usage is proved ? Especially, if other merchants from the same place are here and have not been called upon ?

Now the usage in question is said to exist at home, and probably there were many masters of packets and others in port, who would know if it existed. In such case, we think the fact is not made out, so as to require a comparison of evidence ; that under such circumstances, one witness is not sufficient to prove the existence of a usage of trade of a somewhat extraordinary nature, to wit, that the owners of vessels are to be bound for all purchases made by the masters.

But there is another sufficient reason for granting a new trial. The jury do not appear to have decided upon either of the points upon which, according to the charge, their verdict was to rest. The foreman stated, that they were satisfied with the proof of the usage ; a juror said, that he and some others were of opinion that the rum purchased had come to the use of the owners ; from which it is, to be inferred, that he and those for whom he spoke, were not satisfied in regard to the usage. We certainly do not mean to encourage the practice of questioning jurors as to the grounds of their opinions ;1 but where there are distinct grounds upon which the verdict may be given, perhaps it is not improper to ascertain which they adopted, as there may be little or no evidence upon one and sufficient upon another ; and if it appears that they did not agree upon either of the grounds, I do not see how their verdict can stand, unan*439imity being required. If there are three distinct grounds upon which an action can be maintained, all independent of each other, and four only of the jury agree upon each, I do not see how they can amalgamate their opinions and make a legal verdict out of them. With regard to the opinion which some of the jury adopted, to wit, that the rum, for which the note was given, went to the use of the owners, we do not see the least evidence to support it. No account was produced on trial showing any charge or credit to the owners. Scudder expressly states, that he had no communication with Thacher respecting the rum, the gin which was taken for some of it which was sold, or the note given by the master. He had some suspicion that Hallett, the brother of the captain, knew of the transaction, because he committed to him the gin to sell; but there was quite as much reason to entertain a contrary supposition, as Thacher would have been likely to take charge of any property which proceeded from goods belonging to the owners. It being very apparent that the subject was not deliberately considered by the jury, and, if a usage existed of the kind supposed, it being quite easy to prove it satisfactorily, we think a new trial must be had.

1

 See *Dorr v. Fenno,*12 Pick. 526 ; *State*v. *Hascall,*6 N. Hamp. R. 361 *Taylor*v. *Greeley,*3 Greenleaf, 204 ; *Hix*v. *Drury,*5 Pick. 296; *Pierce*v *Woodward,*6 Pick. 208.