#### Henry Sewall *versus*William L. B. Gibbs and William P. Jenny.

April Term, 1829.

Usage of trade cannot be set up, either to contravene an established rule of law, *or to*vary the terms of an express contract. But all contracts, made in the ordinary course of business,- without particular stipulations, expressed or implied, are presumed to be made in reference to any existing usage or custom, relating to such trade j and it is always competent for a party *to*resort to such usage, to ascertain and fix the terms of the contract.

The defendants, purchased of the plaintiff} a ceroon of indigo, *at*public auction. No tice was given, at the time of sale, that the indigo would be sold subject to the usual tare ef 10 per cent. The tare, in point of fact, amounted to upwards of 17 per cent. At the trial, the defendants were permitted to prove, that the indigo had been fraudulently packed, and that, in all cases of fraudulent packing^ it is the custom of the trade, to allow the purchaser the actual tare. Held, that this evidence was rightly admitted. Held also, that the defence was properly set up, under the general issue, and that the defendants could claim a deduction of the actual tare, without offering to return the indigo.

The defendants, sometime after the purchase, paid into court a sum sufficient to cover the amount of the indigo after deducting the actual tare. Held that, as the sale in this case was for cash, the plaintiff was also entitled to interest, from the day of sale to the day of payment, and, therefore, that the amount paid into court, was not sufficient to cover the plaintiff’s demand.

This was an action of *assumpsit,*for goods sold and delivered. The plaintiff sought to recover for a ceroon of indigo, which was described in his bill of particulars, as weighing 1141bs. subject to a deduction of ten per cent, for tare. The defendants pleaded the general issue, and a tender of $>' 182, on the 22d day of May, 1828. The plaintiff replied, denying the tender.

At the trial, the plaintiff proved, that a number of ceroons of indigo had been sold for him, at public auction, on the 19th day of February, 1828; and among them the ceroon in question, to the defendants. A clerk of the auctioneer, was called, as a wit_ ness for the plaintiff who testified, that it was expressly declared, at the time of sale, that the indig'o would be sold subject to the *usual deduction of ten per cent, for tare.*That the ceroon purchased *603by the defendants weighed 1141bs. gross, and was struck off at fifteen shillings and a penny per lb. That it was not customary to deduct any fractions of a lb. for tare, and that the indigo, thus sold, consequently, came to $194.30.

Upon this evidence, the plaintiff rested his cause.

The same witness, being cross-examined by the defendants, stated, that the indigo in question was advertised, as the first quality of Caraccas *indigo;*that ten per cent, is the usual tare allowed on the sale of indigo, and that this was sold expressly at the *usual*tare. That the actual tare, generally corresponds very nearly, with the customary tare; but that, in this case, it exceeded the usual rate, and complaints were made by purchasers that it was excessive.

The defendants then called a number of witnesses, who testified, that it is the custom, in selling indigo, *to*allow ten per cent, for tare; and, where the actual tare varies from this, two or three pounds more or less, the difference is not regarded. That, in ordinary cases, the actual tare corresponds very nearly with that allowed by custom : but where the excess, beyond ten per cent., is so great as to create a presumption, that there has been fraud in the packing, then it is the custom, to allow the whole actual taro to the purchaser. In this case, the tare was about 171bs.: one of the witnesses stated it at 17Jbs. and another at 171bs.l2oz.

Some of the witnesses testified, that the indigo in question was, in their opinion, fraudulently packed in Caraccas» but there was no pretence, that the plaintiff was accessary £° it, or that he was in any way chargeable with fraud. It ap»eared also, that it is usual, in packing indigo, to use two or~arcc pieces of hide at the end, and along the seams of the package ; but that in this case, 53 pieces of hide were found : dll(* some of the witnesses thought, that the extra pieces w<*e fraudulently, to increase the weight of the ceroon.

Upon the question of fraud an^ usage, the testimony was somewhat contradictory, anx’ several dealers in indigo were called by the plaintiff wbr stated, that they knew nothing of any *custom,*to allow *tb¿*actual tare, in cases of fraudulent packing. $ome of the witnesses ated, that in packing indigo at Caraccas» *604the intention was, to put lOOlbs. net into the linen wrapper ; and that, as the indigo is always sold subject to tare, about ten per cent, was added to the net weight, by packing in skins. It also appeared, that the indigo in question was charged to the defendant, in the invoice, at 100 lbs- net, and that the tare on this particular ceroon, did not exceed the average of that upon the other ceroons sold at the same time. The defendants offered no evidence to support their plea of tender, but proved that they paid into court, under the rule for that purpose, $183.50, on the 22d day of May, 1828.

The Judge charged the jury, that, if they believed that the net weight of the indigo was 97 lbs. instead of 96 lbs. and 4 oz., and if the defendants had not paid into court the amount due for the 97 lbs., together with interest, then the plaintiff was entitled to the amount due for the 97 lbs. That, at all events, the plaintiff was entitled to the amount, which the defendants admitted to be due, by their plea of tender, together with interest on that sum up to the time of paying the money into court; and the jury were desired by the Judge, in giving their verdict, to express their opinion upon the questions of fraud and usage.

The jury returned a verdict for $183.50, in favour of the plaintiff. They also found, that fraud had been practised in packing the indigo at Caraccas, and that it is the usage, in cases of fraudulent packing, to allow the actual tare to the purchaser.

*Mr. Robert*Sedgwick, for the plaintiff, now moved for a new trial, and

1. That the evicted,, 0f ysage ought not to have been admitted at the trial. It appet..s$ from the testimony, that the indigo in question was sold at auction, at the usual tare of *ten per cent.;*it was offered by the plaintiff, suqect to that express deduction, and no other. The defendants, mwever$ were permitted to show, that there is *a usage among*deale,, l0 allow a larger deduction for tare, in certain cases. This evidei<e ;s inadmissible, because it tends to contradict the *express*between the par*605ties. Proof of usage is admitted, for the purpose of giving a construction to a contract, in cases where it would not otherwise be intelligible; but if the agreement be explicit, and clear, it cannot be controlled by proof of a custom which serves to vary or contradict it. Mercantile contracts are not subject to any peculiar rules of construction, but are construed, like all other contracts, by the terms used. If their meaning be doubtful, or if it cannot be ascertained without resorting to proof oí extraneous circumstances, not apparent from the agreement itself, then a usage may be proved for the purpose of explaining the contract. In this case, the plaintiff’s terms of sale were clear and explicit. The indigo was sold under the inspection of the buyer, without fraud and without warranty, and subject to no condition except the deduction of ten per cent, for tare. Usage was not necessary to explain this contract, and the evidence upon this point was improperly admitted. *[Hibbert v. Shee,*1 *Camp.*113. *Thompson v.*Ashton, 14 *J. R.*316.]

II. There was no warranty in this case, either express or implied, that the commodity sold, should be what it purported to be. It was not a sale either by sample or description; if it had been, then the bulk must have answered the description in the one case, and corresponded with the sample in the other. But here, the seller placed the article to be sold before the buyer, for his personal inspection, without fraud or warranty, and the rule *caveat emptor*applies. The buyer purchased the indigo upon his own judgment, by his own skill, and the quality and condition of the article were as well known to him as they were to the seller. If the former had desired any security beyond that afforded by his own knowledge, he might have asked for a warranty, and then the latter would have had an opportunity to disclaim all personal responsibility as to the quality of the indigo. But as the express warranty was neither asked nor given, the law will not imply one, and the purchaser takes the article at his own risk. [1 J. *R.*129. *Doug. 665. Gardner v. Gray,*4 *Camp. p.*144. *Sands*& *Crump v. Taylor & Lovett, 5 Johns. R.*396. *Smith v. Colgate,*30 *Johns. R.*204. *Oneida Man. Soc. v. Lawrence,*4 *Cowen,*444.]

*606III. As the defence in this case rests entirely upon an implied it cannot be sustained without an offer *to return*the goods. Where the buyer elects to keep the articles purchased, without making any offer of return, he must pay for them, at all events, and rely upon his warranty. In cases of express warranty, there should always be an offer of return, otherwise evidence cannot be admitted *to prove*a defect in the goods, or deterioration in their value, for the purpose of reducing the plaintiff’s demand. Where the action is upon a *quantum meruit,*the rule *is*different. *[Paine v. Whale,*7 *East.*274. *Thornton v. Wynn, 12 Wheat.*192. *Sill v. Rood, 15 Johns. R.*230. *Basten v. Butter,*7 *East.*479.

The defendants should, at all events, have given *notice,*with their plea, as to the nature of their defence. It was their duty to have given notice, in the first instance, of the cause of complaint when discovered, so that the plaintiff might resort hack to his vendor; and he ought also to have apprised us of the defence about to be set up, in order that we might not. be taken by surprise. The defendants have neglected their duty in all these particulars, and this defence, therefore, cannot now be sustained. *[Runyons v. Nichols,*11 *Johns. R.*547.]

IV. The plaintiff was entitled to a greater amount than that paid into court. The verdict was for the exact sum paid in: but the plaintiff is entitled to *interest*on that, amount from the time of the sale to the day of payment; for in sales for *cash,*interest follows a delay of payment, as matter of law, and all sales are presumed to be for cash until the contrary is shown. We are entitled, at all events, to interest on the sum stated in the plea of tender; for the plea of tender is an admission of a debt due to that amount. *[Spalding v. Vandercook,*2 *Wend. R.*432.]

V. The verdict was against evidence, as there was not sufficient testimony to prove a fraudulent packing of the indigo at Calaceas.

[Upon this point, the counsel on both sides discussed the question at large, and examined the testimony with care; but as the argument relates to a mere question of fact,- it is omitted.]

*607*Mr. John Anthon,*for the defendants.

The defence in this case, had reference solely to the *quantity*of the indigo purchased by the defendants, and the *quality*of the commodity was not a subject of controversy. The question related to the amount of *tare*to be deducted from the gross weight; and to ascertain that, the defendants introduced proof of a usage established among merchants, in the sale of indigo, to allow *full tare*in all cases where it has been improperly increased by fraudulent packing. The question now is, whether that evidence was properly admitted.

I. We admit that usage cannot he introduced for the purpose of contradicting or controlling an express contract; neither was the evidence offered with any such intention. The plaintiff himself showed, that the article in question was sold subject to .the “ *usual tare,”*and we introduced evidence to explain what is meant by *those terms,*in the sale of indigo. The plaintiff proved a part of the usage, and we claimed the right to prove the whole, for the purpose of showing what our liability to the plaintiff actually was. Our inquiry related solely to the wrapper in which the indigo was contained; and we proved, conclusively, that it is the custom of merchants to allow full tare, in all cases where the weight of the wrapper has been improperly increased by fraudulent packing.

What objection can there be to the introduction of this proof for sucli a purpose 1 In what way can the amount to be paid by the defendants be ascertained, except by the very evidence, which we brought forward? The gross weight of the ceroon was 114 lbs.; but the plaintiff does not pretend that we are to pay for that number of pounds : he admits that it is the *custom*to deduct ten per cent, for tare. We say, that the custom which lie admits, applies only to ordinary cases, where the packing has been honest: but in cases of fraudulent packing, like the present, the custom is, to allow to the purchaser a deduction of the actual tare horn the gross weight. In point of fact, the jury have found that *608we ai*e correct, as to the custom, and they have also found that the indigo was fraudulently packed at Caraccas.

The proof of usage, then, was correctly admitted; for without it, the actual agreement between the parties could not have been ascertained. That it was a part of the contract to deduct *.ten per cent,*for tare in ordinary cases, is admitted; and we prove, that it is also a part of the contract to deduct the *whole tare*in cases of fraud. The sale, then, was by agreement of parties made subject to the usage, and in such cases, the rule is well settled that the custom may be proved. This evidence in no way-contradicts the contract; it merely explains and ascertains what it really was; and'*'so far from contravening the rules of law, it upholds the principles which are fixed and settled by decided cases. [4 *Camp.*144. 1 *Holt.*95. 1 *Car. and Pay.*59. *Ib.*392. 4 *Stark. Ev.*449.]

The cases cited by the counsel for the plaintiff, relate entirely to the *quality*oí the article sold: but the sole question here is, as to the *quantity;*and in the absence of an express contract to the contrary, the parties, by force of the custom, agreed to deduct the full tare.

IL As to a return, or an offer to return goods purchased, the doctrine upon this subject applies solely to cases of sale with warranty. Even in such cases, there are qualifications to the rule ; but it is not necessary to examine them, because they are not applicable to the present subject. [6 *T. R.*320, *Cutter v.*Powell.]

We were not bound to give notice in this case, because it is not customary to return the goods; on the contrary, they are tobe retained by the purchaser, (except in cases of warranty, which the plaintiff asserts did not exist here,) and the tare is to be deducted from the gross weight. As the question relates solely to the *quantity*of the article purchased, the defence is properly set up under the general issue, and the plaintiff is bound to prove his claim, as in ordinary cases.

IV. The only real question in this cause, is that which relates to interest. The jury, by their verdict, have found that the ne< *609weight of the indigo was 96 lbs. 4 oz. : its value, therefore, at the rate of purchase, was §181.43. The defendants paid into court §183.50, and this amount covers principal and interest up to the time of payment.

But the jury were not bound to allow interest; that was a matter within their sound discretion, under the special circumstances of the case. The demand was unliquidated, and as there was no agreement that interest should be paid, the jury, in their discretion, might reject it altogether. The money here was not paid under the plea of tender, but was put into court subject to the plaintiff’s order, and the jury have allowed him all that he can claim either in law or equity. [4 *Cowen R.*496. 6 *Ib.*193.]

Jones, C. J.

This was an action of *assumpsit,*to recover the amount claimed to be due for a cerooti of indigo, sold to the defendants, at 15s.Id. per pound, subject to deduction from the gross weight for tare. The leading question on the merits, turned upon the amount of tare which was to be allowed and deducted. The plaintiff’s claim, after the deduction -admitted by him, amounted to about §194.20, which the principles of the defence would reduce to §182.94. The defendants pleaded a tender of §182, but offered no proof of the tender at the trial. They, however, paid into court, under the usual rule for that purpose, the sum of §183.50, which was probably intended for the amount due on the purchase, after the deduction claimed by the parties. The Judge told the jury, that the plaintiff was, at all events, entitled to the sum which the defendants had admitted by the plea of tender to be due, with interest from the sale. The jury gave a verdict for §183.50.

By this verdict the principle of the defence was fully sustained, and the jury obviously intended to confirm the allowance of tare claimed by the defendants. I should have been satisfied with the verdict, had the jury, in settling the amount of it, conformed to the spirit of the direction they received from the Judge. But they have allowed the plaintiff the exact sum paid into court by the defendants, without adverting to the circumstance, that it does not include the full interest upon the sum admitted by their pte'a *610of tender, to be due from the time of the sale and delivery of the which they were instructed to allow. The direction of dge, on this point, was correct, and ought to have been observed.

The sale of the indigo was by auction, and not being shown to be on credit, is *to*be intended to have been for cash. The purof the sale and delivery of the article, which ought, of course, to have been allowed against him. The jury were probably led into the error by the miscalculation of the defendants, and acted upon the supposition and belief, that the full amount of interest was included in the sum paid in by them. But it is nevertheless, an error, which, unless cured by the consent, of the parties to rectify it, will compel us to set the verdict aside. A new trial, however, with our impressions against the plaintiff on the other questions in the cause, would not probably avail him. chaser was, consequently, chargeable with interest from the time

And first, the usage to which the plaintiff objects, was, we think, clearly admissible. The sole object of it was, to enable the defend-an ts to ascertain and show the quan t if y of indigofor which they were to pay the plaintiff The article of indigo in ceroous, is necessarily subject, on purchases and sales by the pound, to deductionfrom the gross weight of (he wrapper or ceroon for tare: the purchaser is, however, to pay the price of the indigo for the cerotm or wrapper in which it is packed. Now the average tare for the ceroon or wrapper in ordinary cases, when honestlyand fairly packed, has been found to be ten per cent.; hence, casual and unpremeditated variances being disregarded, that average rate has, for the mutual couvenince of dealing, been established by custom, as the rate of tare, to be allowed in all ordinary cases on sales, in the common course of business. Experience was the teacher whose counsels introduced the rule,'and when it was seen that fraud would sometimes derange its accustomed operation, and cause it to work injustice, the same unerring guide led to the modification of the general usage, by a particular custom adapted to this, emergency *;*and it became by common consent, as part of the custom of the trade, that in cases of excess of tare by the fraudulent packing of the ceroon, the whole actual tare should be deducted from the gross *611weight, and allowed to the purchaser. The whole entire custom of the trade, then, is to allow the average tare of fen per cent, on .. . all purchases, as a matter of course, but in the special case of an undue excess by fraud in packing, to allow the whole actual tare to the purchaser. Cases of dishonesty in packing, by which the quantity of indigo is intentionally diminished by the fraudulent excess of tare, are out of the reason of the general custom, and come properly xvithin the principle of the particular custom, thus incorporated into the general usage of the trade.

The case now before us was proved by the testimony on the trial, and found by the jury, tobe one of that class ofinfectedcases, and the special usage, xvhich we hold to govern it, xvas also established by' proof and found by the verdict. On turning to the case, we find, that the tare of this*ceroon was proved to be about 17 per cent., being an excess of 7 per cent, above the average rate ; and that the jury, upon the question being specially put (o them, declared that, fraud had been practised in packing the indigo at Caraccas. It cannot, I think, be denied, that this excess of tare, and the presence of the extra pieces of useless hide proved to have been found in the ceroon, were sufficient presumptive evidence of *fraud;*and if so, it was a case of fraudulent packing, in which the custom is, to allow the whole actual tare to the purchaser. The question of the sufficiency of the proof of this custom, was also specially put to the jury, and they have, by their answer, distinctly affirmed its existence. On both these questions, thus specially propounded to the jury, their finding is supported by the testimony, and ought not to be disturbed.

The fraud in the packing of the indigo, and the usage consequent upon it, must, therefore, be taken as established facts in the case. But the point of the objection is, that the custom, admitting it to subsist, xvas not admissible in evidence on this issue, and the plaintiff contends in support of the objection, that by the express terms of sale, the rate of tare was to be ten per cent., and no further deduction to be allowed. But is that the contract between the parlies 1 The witness who proved the sale, testified, ’hat it was expressly declared at the time, that the indigo would be sold subject to the usual deduction of ten per *612cent, for tare ; andón his crossrexamination, lie says that ten per cent, is the usual tare allowed on indigo, and that this ceroon was sold expressly at the usual tare. What is there in 'the terms of sale, as proved by this witness, to affect the right of these defendants to the benefit of the usage in question *1*It xvas a sale in the usual and ordinary course of business, and the declaration that the indigo would be sold subject to the usual deduction of ten per cent, for tare, xvhich is the strongest, expression used by the witness, was no more than the formal announcement to the bidders, of the uniform rate of tare, xvhich was by the general custom established for ordinary cases, and would be applicable, in the first instance, to all sales of indigo in ceroons, by xveight. It left untouched the special usage, applicable to cases of excess of tare by fraud in packing the indigo. No immediate or prospective provision xvas made to regulate the application of the usage, in the event of the case occurring, or to modify or impair the purchasers’ claim to its full benefit.

It was not known or supposed, at the time of sale, that anj fraud or deception had been practised in packing the indigo at Caraccas, or that the tare xvould be found so excessive as to induce the presumption of fraud ; and the developement could not take place, nor the true character of the transaction be ascertained, until the ceroon xvas opened, when the fraud must necessarily be exposed. At the sale, therefore, this ceroon xvould be sold on the same terms as the rest, and the purchaser would conform to the general rule for the alloxvance of tare, until the secret fraud which distinguished it from ordinary cases, and brought it within the special usage, was discovered : but upon that discovery showing an excess of tare by dishonesty in packing the indigo, the special usage took effect and applied ; entitling the defendants, as the purchasers, to the alloxxance and deduction of the full actual tare, iñsfead of the average rate of ten per cent. JEvery such purchase and sale, in the usual course of business must be held to be made in refei ence to this usage, and if the facts and circumstances when disclosed, call for its application, it is to govern the case.

The vendor, if not himself a party to the fraud, may by contract, guard himself against the consequences of the usage ; but *613the agreement which protects him, must, I apprehend, in substance, provide that the risk of excess of tare by fraud, shall devolve upon the purchaser, and lie borne by him, and tire whole gross weight after the customary deduction of 10 per cent, be paid for, notwithstanding any such secret, and fraudulent excess of tare. There is certainly no such provision in this contract, nor can the terms of this sale, bv any construction, be made to indicate any such condition or agreement. It was the sale of the indigo by weight, at a given price per pound, and not by the oeroon for a gross sum. And its language refers to the state of things as then supposed *to*exist. No express provision was made for the case of a fraudulent excess of tare, and, as respected that contingency, the parties necessarily contracted in reference to the usage, which was to regulate their rights, in case of its occurrence.

The effect of the contract of sale, as I understand it, was, that the ordinary deduction of 10 per cent., which applied to all sales of indigo in .ceroons by weight, should, as a matter oí course, and at all events, be made, and that the excess beyond that rate, if any excess should be discovered, and should be found the clear result of fraud in packing the indigo, should also be deducted from the gross weight, so as to allow the purchasers the whole actual tare, according to the usage applicable to the case. The custom then, was not in conflict with the contract or the terms of sale, and could not be excluded on that ground. Was it liable to any other exception ?• It. is too just in its principles, and too fair and reasonable in its application, to be exposed to the charge of being at variance with any rule of law or morality. And the circumstance that the dealers in indigo, have by common consent, established it for their government in special cases of fraudulent excess of tare, bespeaks it a beneficial, just and salutary qualification of the general custom. If, therefore, the defendants were advised that it was material to their defence, they had a right to introduce it in evidence at the trial. A glance at the pretensions of the parties will satisfy us of the importance of its bearings on the merits.

The indigo being purchased by weight, and subject to tare, a just allowance was to be made for the tare before the quantity to *614be paid for could be ascertained: and the question chiefly in controversy, was the allowance to which the defendants were entitled on that account. The tare, in this, as in other cases, if no customary rate ha- been established, must have been ascertained by the process of weighing, and the actual tare thus asceitained, would, in such case, be the deduction to be made for tiie gross weight. But that process was too inconvenient for practice, and ten per cent, being found, by experience, to be the average tare in ordinary cases, was established by common consent, as the rate to be allowed on purchases and sales.

The plaintiff claimed the application of this customary rate to the sale in question. But the claim was repelled by the defendants, on the ground that the case was not within the priticiple of the usage which applied to ordinary purchases and sales, but that the dishonesty in packing the indigo in this ceroon, had produced a fraudulent excess of tare, and that in such cases the custom was to allow the purchasers the whole actual tare, instead of the average rate of ten per cent.; and the offer to which the plaintiff objected, was to prove that special customgin support of the defence. Now the point in dispute, was the tare to be allowed the purchaser. ■ And considering that question as controlled or materially influenced by the established usages of the trade, it becomes important to show what those usages were.

The plaintiff having, at the sale, referred to the customary rate of ten per cent., and, on the trial, shown that to be the usual allow;nee for tare on indigo, the defendants were driven to the proof of the whole custom, in explanation of the plaintiff’s evidence, and to show, that the usage admitted and referred to by him, applied to ordinary cases only where the indigo was honestly packed; but that in cases of fraud and deception, producing an unfair excess of tare, and a corresponding deduction of the quantity of indigo, the custom was to allow the whole of the actual tare to the purchasers, as a deduction from the gross weight. The usage on which the defendants relied in their defence, composed a branch or part of the custom, which the plaintiff had himself shown. It was the practice of the general custom, which applied to the purchase and sale in question. And to have held the defendants bound by the general *615rule, and yet to have denied them the benefit of the exception en-grafted upon it, would have been manifestly unjust. They were surely entitled to prove t hat their case did not. come within the principle of the average rate applicable to ordinary sales, but was governed by the particular usage which applied to special cases of fraudulent excess of tare, by deception and dishonesty in packing. And what testimony could be more appropriate and material to that defence than the usage they ofiered *1*It went directly and conclusively to establish the right they claim, and it let in the accessary proof to ascertain and show to the jury the true quantity of indigo actually delivered to them, and for which they were justly chargeable, and ought to pay.

The defence taken on this point by the defendants, was against the plaintiff’s claim to apply the genei’al average rate of tare to their purchase. They resisted the claim, because it exacted from them full payment of the contract price for what was never delivered to them, and their purpose was, not to discharge themselves from the obligation to pay for the indigo they received, but to reduce the plaintiff’s demand to the standard of justice, by ascertaining and showing the true quantity of the article sold and delivered by the plaintiff, and received by them. To this point their proof was directed. It was full and complete, and upon the supposition, that the custom admitted and shown „on the part of the plaintiff would, if unexplained and without qualification, stand in the way of the defendants’ proof of the fact of excess of tare, or render that proof unavailing to them, must it not be competent to them to show that the average rate of tare did not apply to them, but that in such cases of fraudulent excess as they show this to be, the custom is to allow the purchaser the deduction of the whole actual tare, instead of the ten per cent. *1*The usage and custom of the trade, both in their application to ordinary cases, and to the special case of fraudulent excess of tare, by the dishonest packing of the indigo, as explained by the testimony, appear to me to be perfectly competent,.reasonable and just, and they interposed no obstacle to the defendants’ defence. And, viewing the proof of the particular usage in all its aspects and bearings, I am satisfied that it was admissible and proper evidence.

*616II It was not necessary for the defendants to make any offer to return the indigo. There was no intention or desire on their part id rescind the contract;. and their defence did not turn upon any fail-lire or non-compliance of the plaintiff in respect of any warranty or covenant, express or implied, of the quality of the article. The merits of the defence rested upon grounds disclosed in the case, and which certainly did not require the return, or offer to return, the indigo. That objection, therefore, is wholly inapplicable.

III. But it is further objected, that seasonable notice was not given by the defendants of the claim for the excess of tare, on the ground of fraud in packing the indigo; and that the plaintiff, by reason of the neglect, lost the opportunity of an early application to his vendors for indemnity. Whatever consideration might, under other circumstances, be due to this complaint, it comes before us without any just pretensions to our favour. The sale was on the 19th of February, and on the *22d*of May following, money was paid into court by the defendants, on the principle of their defence. It does not appear at what precise time the discovery of the fraud was made, or when notice of the defence was given, but no exception was taken at the trial to the want of sufficiency of notice. And it is too late now to raise the point. If the objection had been made at the trial, full and early notice, if held necessary, might have been shown.

The only valid objection, is the error of the jury in the amount of their verdict; but the extent of that error is ascertainable by mere calculation, and it may, by the consent of the/defendants, be amended. If they assent to the amendment, judgment is then o be entered upon it, as amended, for -the plaintiff with costs, otherwise a new trial will be granted, or the plaintiff may enter judgment on the verdict, as it stands, with costs, at his election.

Oakley, J.

(after stating the facts.) There is no ground for the objection, now made by the plaintiff that the verdict is against evidence, as the weight of the proof seems to me to be decidedly in favour of the defendants.

It is well settled, that a usage of trade cannot be set up, either to contravene an established rule of law, or to vary the terms *617of an express contract. *(Thompson v. Ashton,*14 *J.*R. 316. *Teats v. Pirn,*1 *Holt,*95. ) But it is equally well settled, that all contracts made in the ordinary course of business, without particular stipulations, expressed or implied, are presumed to be made in reference to any existing usage or custom, relating to such trade ; and that it is always competent for a party to resort to such usage, not to vary, but to ascertain and fix the terms of the contract. In the case now before us, the indigo was sold at the *usual*rate of tare ; and that rate, appears to be admitted, to be 10 per .cent. If the terms of the sale had been, that no more than 10 per cent for tare, should be deducted, the purchasers would be bound by the express stipulation of the contract, in the absence of fraud on the part of the seller. I do not understand the notice given by the auctioneer, at the time of the sale, as amounting to such an express stipulation. The purchasers at the sale must have understood, when the rate of tare was announced to be 10 per cent., that reference was had to the supposed fact, that the ceroons of indigo were honestly packed; for, in such cases only, is ten per cent, the usual tare. The usage to allow actual tare, in cases of fraudulent packing is to be taken to be well understood, and the parties are to be considered as contracting in reference to it.

In the absence of any usage on the subject, the actual tare would be allowed, as the purchaser would be obliged to pay only for the real quantity of the article received. If, then, a rule is introduced by custom,' to estimate the tare at 10 per cent., without regard to the actual tare, I see no reason why that rule may not be modified, by custom, so as to confine its application to cases in which there is no fraud. The one usage, or custom, rests on the same foundation with the other. I am of opinion, therefore, that the evidence objected to was properly admitted. It was resorted to simply to ascertain the real quantity of the article sold.

It is contended, however, that there should have been an offer to return, the indigo by the defendants. This can never be necessary, unless the contract is intended to be rescinded. The contract was a valid and fair one. It was a sale of a quantity of *618indigo, the actual amount of which was unknown to the parties. To ascertain that amount, resort *is*had to the known usages of the trade, in estimating the tare to be deducted from the gross weight. The contract is admitted to be binding, and the only inquiry is, what are its terms *1*This view of the case is also an answer to the objection, that notice of the defence offered should have been given under the general issue. The plaintiff being hound to know the usage of deducting the actual tare, in cases of fraud, that usage was a part of the original contract of sale, and open to inquiry under the plea of *non assumpsit.*It was not matter arising subsequently to the contract, and set up to avoid it.

I think that the jury ought to have allowed interest upon the price of the indigo. It not appearing that any credit was given at the sale, it must be inferred that it was a cash sale and the defendants should have brought into court, in order to protect themselves from the costs of the suit, a sum sufficient to cover the price of the indigo, with interest from the time of the sale. They did not do this. ^Estimating the quantity of indigo at the least rate, *96 1-2*lbs., and charging the defendants with the interest, it will appear that the verdict of the jury was too small. It may be amended by the consent of the defendants. If not, a new trial will be granted, or the plaintiff may enter judgment on the present verdict, with costs, at his election.

*[D.*D. Field, *Att'y for the plff.*William Samuel Johnson, At*t'y for the defts.]*

Note.—Upon the subject of paying money into court, and the effect of such payment, there have been many decisions, sonie of which are not, perhaps, entirely consistent with "others. A complete digest of the English cases may be found in *Starkie on Ev. [Vol.*3, *part IV. p.*1094.] and in *Harrison’s Index, tits.*“ *Costs”*and “ *Payment.”*By paying money into court, the defendant, it seems, admits a cause of action to the amount paid in; and where the declaration is upon a special contract, he also admits the contract; but he does not thereby admit all the averments necessary to sustain the action. As for instance: in an action on a valued policy, where a total loss is averred in the declaration, the defendant, by paying money into court, admits the making of the policy, and perhaps the terms of it, but he does *not*admit thereby a total loss. This averment must be *proved,*or, in other words, the plaintiff must show damages beyond the amount paid in. *[Rucker v. Palsgrave.*1 *Taunt.*419, 1 *Camp.*557.] If the plaintiff does not esta*619blish a claim to a larger sum than that paid in, upon the production of the rule, he is liable to be non-suited. [3 *T. R.*657. 2 *Salk.*597. 4 *T. R.*10. 7 *T. R.*372. 2 *H. B.*374.]

In the case of *Stoveld v. Bruvin and another,*[2 *B. & A.*117.] the reporter’s note says, that “ payment of money into Court generally on the whole declaration, ad- “ mits the contract as stated in each count, and a breach of it, and that something “ is due on each count thereon; but it does not admit tha amount of the breach “ there stated.”

In the case of the *Bank of Columbia v. Southerland,*[3 *Cowen’s R.*336.] the court held, that where money is properly paid into court under a suitable rule, the sum paid in, is to be considered “ as stricken out of the declaration. It is a defence “ pro tanto, and unless the plaintiff proves a sum beyond what is paid, there should “ be a verdict for the defendant.”