#### Suydam, Reed & Co. *v.*Clark & Coleman.

Where the bought and sold notes delivered by a broker to the respective parties, on a sale of produce, differ in a material point, no contract is effected between the parties.

So held, where on a sale of one thousand barrels of flour, the bought note expressed that seven hundred and fifty barrels was to be delivered when it arrived, not later than three days ; and the sold note expressed that the whole was to be so delivered.

Where flour was deliverable upon a day certain, the delivery of an order on a barge, in the hold of which the flour is deposited, is not a compliance with the contract; there being no actual delivery or tender of delivery of the flour itself, on the day specified.

Evidence of a custom or usage of trade, that the delivery of an order for flour by the seller to the buyer, the receipt thereof by him, and his presentation to the drawee of it, the seller not being notified of the non-acceptance of the order, is a delivery of the flour sold ; *held,*to be inadmissible.

Sept. 14;

Sept. 30, 1848

Assumpsit, to recover the difference on a contract of the defendants to purchase flour, which not being performed, the flour was re-sold at their risk.

The cause was tried before the Chief Justice, on the 14th of April, 1848. The plaintiffs called W. L. Roberts, who testified that he was a produce broker in this city, and made the sale and purchase of the flour between the parties. The following is the bought note which he sent to the plaintiffs :

“ No. 274. “ *New York, July 13th,*1847.

“ Gent:—We have this day sold for your account, to Clark & Coleman, 1000 barrels superfine flour, whereof 750 barrels are 1 T. Wiman,’ at $6 per barrel; and 250 barrels ‘ Scio,’ at $5 87|- per barrel.

The 750 barrels to be delivered when it arrives, not later than three days; and the ‘ Scio’ to be marked ‘ *Genesee*

/‘Roberts, Bro’s., *Brokers.*

“ To *Suydam, Reed*Co.”

*134The following is the sold note which he sent to the defendants :

“No. 274. *“New York, July 13th,*1847.

“Gent:—We have this day bought for your account, of Suydam, Reed & Co., 1000 barrels superfine flour, whereof 750 barrels are “ T. Wiman,” at $6 per barrel; and 250 barrels ‘ Scio,’ at $5 87J per barrel. To be delivered when it arrives, not later than three days ; and the ‘ Scio’ to be marked 1 *Gene-*see.’ “ Roberts, Bro’s., *Brokers.*

“To *Clark Sp*Coleman.”

It appeared, that on the 16th July, a barge arrived having on board 650 barrels of “ T. Wiman” flour for plaintiffs, and about 9 A. M., an order on the barge in these words, was delivered to the defendants:

*“New York, July*16, 1847.

“ *Captain of Barge Chicago,*will please deliver Messrs. Clark & Coleman, six hundred and fifty barrels 1T. Wiman’ flour, and oblige, “ Suydam, Reed & Co.

“ Pier Six. Balance out of store.”

The defendants sent this order to the broker on the 17th, with a written notice indorsed, that “The time for delivery of the flour expired yesterday; the boat cannot deliver it to-day, and we have 'been forced to send other flour in place of it, as the ship cannot wait.” They sent him a formal note on the same day, declining to receive the flour.

Roberts further testified, that he bought this flour for the defendants to ship by the Piscatore, on the 16th of July. The ship did not sail till four or five days after that. On his suggesting it, the defendants consented to take and did take the “Scio” flour.

A clerk for the plaintiffs proved, that they received notice of the arrival of the boat, early on Friday morning," the 16th July. Plaintiff had the “Scio” flour in store before the sale; and the balance of the 100 barrels of “ T. Wiman” flour, was put in store on the 14th, after the sale, in a lot"of 123 barrels. On Monday, witness presented a bill for payment of the whole *135flour. The defendants paid for the Scio, but refused to pay for the Wiman flour, saying they would not take it. 0 Witness gave them a notice, that the Wiman flour would be sold on their account, and they would be called on for the difference.

The úsage is to send an order to the parties, when the flour is on the barge. When the flour is at the store, the parties send to the store for it. It is customary to have flour inspected on sales, and for the seller to attend to it. Has known both parties to attend to it. Each party pays half the inspection. The loss on this sale was 75 'cents per barrel, making $562 50.

The Captain of the barge Chicago proved, that he had on board, 664 barrels of “ T. Wiman” flour for Suydam, Reed & Co. It arrived on the night of the 15th July, from Troy. The order for 650 barrels, was presented by the defendants about ten o’clock next morning. Another barge of the same line lay between the Chicago and the dock. The captain told the person who had the order, that he would give him the flour when he arrived at the dock. If it had been urgent, the captain testified he could have delivered it immediately. The person did not seem to be urgent. The Chicago delivered goods on that day. The flour was in the forward hold, immediately under the hatch, and could have gone over the other boat. Was ready to deliver at any time when the barge could get to the dock. The same person called on Saturday, and said he wanted the flour. The captain put him off as he had before, although he could have delivered it, if it had been urgently required. The barge between him and the wharf, was discharging all day Friday. It was one of the same line. The captain did not tell the defendants clerk he could land the flour. Told him it could not be landed till Monday morning, and then it would be. He made no objections. The flour in the barge, was the “ T, Wiman” flour, and was the same contemplated in the order.

David Dows, for the plaintiffs, testified he is in the flour business. The usage in the flour trade on a contract of sale is, that about the time of the contract expiring, the party gives an order on the boat, or a distant store, and it is accepted as delivery. If I sell flour to be delivered in the month of May, and in the *136course of that month deliver an order, and it is accepted, it is considered a delivery of the property.

It is usual for the captains of the boats, under the direction of the holders of the order, to deliver the flour on the dock, turn up the barrels, and have it inspected. It is customary for the captain to have the inspection done. He notifies the inspector, The trade have considered the acceptance of the order as a delivery of the property.

If the flour is not delivered on presentation of the order, the custom is, that the purchaser must return the order to the seller, or he is considered as satisfied.

The plaintiffs counsel then offered to prove as the usage of the trade, that the delivery of the order to the purchaser, and the receipt thereof by him, and the presentation thereof by him, and the seller not being notified of the non-acceptance of the order, is a delivery of the property.

The judge refused to receive the testimony, and the plaintiffs counsel excepted.

The defendant’s counsel moved for a non-suit, on the ground that the broker’s notes of the contract delivered to the respective parties varied, and did not constitute a contract, and none had been proved by the plaintiffs. And that the plaintiffs had not proved a delivery of the flour within the time contemplated by the contract. The judge granted the motion, and the plaintiffs counsel excepted.

*S.*Sherwood, for the plaintiffs,

cited 14 John. 485 ; 3 Wend. 112; 26 ibid. 363.

*A. S. Johnson, for the*defendants,

cited 3 Wend. 459; 26 ibid. 341; 5 Barn. & Cr. 436 ; 9 Mees. & Welsb. 600; 2 Camp. 326 ; 3 ibid. 274; 7 Dowl. & Ryl. 131.

By the Court. Vanderpoel, J.

We think, the variance here is fatal. The broker was the agent of both parties ; he must be deemed to have been employed by the one to buy, and by the other, to, sell; and the notes which he delivers to the parties, evidence their contract. According to the note delivered *137to the plaintiffs, the 750 barrels only were to be delivered when it arrived, not later than three days ;* whereas, according to the note delivered to the defendants, the whole quantity, a thousand barrels, was to be delivered on its arrival, not later than three days. By the latter note then, the obligation of the defendants, to take the thousand barrels, was conditioned, on its arrival and delivery, within three days. Whether the terms of the latter note were more or less beneficial to the defendants than the former, cannot be material. Both parties had the right to determine that question for themselves, when they entered into the contract.

In *Grant*v. *Fletcher,*(5 Barn. &. Cres. 436,) it was expressly held, that the broker is the agent for both parties, and as such may bind them by signing the same contract, on behalf of buyer and seller. But that if he does not sign the same contract for both parties, neither will be bdund, and that where a broker delivers a different note of the contract to each of the contracting parties, there is no valid contract. *(Davis*v. *Shields, 26*Wend. 341; *Peltier*v. *Collins,*3 Wend. 459.)

*2.*The point is also well taken, that the flour was not delivered within the time specified in the contract. Nor does thé defendants receiving the 250 barrels of “ *Scio”*flour, preclude them from taking this objection. They had a right to receive this, in part fulfilment, and under the expectation, that the whole would be delivered according to the contract. The three days, within which the delivery was to be made, expired on the 16th of July ; and the defendants could not, on that or the following day, succeed in getting possession of the flour. *(Cox*v. *Todd, 7*Dow. & Ry. 131.) That this is an article, as to which the time of delivery may be very important to the purchaser, is apparent from the evidence in this cáse. It shows, that the defendants wanted to ship it to England by a particular vessel, and the vessel had to be laden before delivery of the flour was offered.

3. The judge properly rejected the evidence of custom, offered by the plaintiffs in regard to delivery. We have lately expressed our repugnance to the idea, that well established principles of law should yield to local customs or usages. What is deli*138very, is a question of law, .and not of *opinion.*It is not within the legitimate province of custom, to control, or at all interfere, with a question of this kind.

The motion to set aside the non-suit is denied.