#### Thompson against Ashton.

ALBANY,

August, 1817.

No custom or usagewas acinus-that the sa1e°of pleaded not at At the *November,*1815, purpose of witness catalogue

This wasan action on the case, to which the defendant usage, is guilty. The cause was tried before Mr. J. *Van*arucie>ar¡mpiies *Ness,*the *New- York*sittings, in *November,*1816. tbeWgóodñeyss of

At thetrial it was stated, by an agent of the plaintiff, that in ti-ro rccOTerfor he went to the store of the defendant for the waerranTy,h °the purchasin crockery ware: that the defendant sold expiesslyfoHnd- the 46 crav of crockery ware, according to the Hanty. printed of ertain auctioneers, in whose store the 1 doubtedly *317crockery was for sale, which catalogue, the defendant said, conformed to the invoice. The witness did not open the crates, but after they were sent to the plaintiff, several of them were discovered to be bad, consisting of ware of an inferior quality. That the witness then offered to return the whole of the 46 crates to the defendant, who would not rescind the sale, and evaded showing the witness the original invoice, but informed the witness, at one time, that they had been shipped by *Cheese-borough,*and, at another time, said that they were shipped by *Ashton 8r I?igham;*and when the witness replied, that in a former conversation he had said that *Cheeseborough*was the shipper, the defendant said, that *Cheeseborough*had shipped the crockery to *Ashton 8r Ingham,*from whom the defendant received it. It did not appear that the defendant had any knowledge of the contents of the crates. Other witnesses were examined as to the badness of the ware.

The plaintiff then offered to prove, that it "was the custom and usage of merchants, in this article, that the purchaser purchased, and the seller sold, on the invoices, without opening the crates, or examining the ware in the crates; and that it was the uniform understanding, in the city of *New-York,*in such transactions, that the exhibition of the invoices amounted to an undertaking on the part of the seller that the ware was good and merchantable. This evidence was objected to by the counsel for the defendant, and overruled by the judge. The plaintiff then rested his cause, whereupon the defendant’s counsel moved for a nonsuit, which was granted.

The case was submitted to the court without argument.

*Per Curiam.*

It does not appear, from the case, whether the action is founded upon a warranty, or fraud, in the sale of the crockery. The plea is stated to have been not guilty, from which it would seem that fraud was the ground on which the action was intended to be supported. But the plaintiff has entirely failed in making out fraud. There is some appearance of contradiction in the account which the defendant gave, as to the place where, or the persons from whom he procured the goods; but nothing which could be considered as making eut a fraud in the defendant, or charging him with any knowledge of the quality of the crockery sold to the plaintiff. The *318evidence offered of a usage, or custom, in re]ation to the sale of crockery ware, was properly rejected. Nacustom in the sale of any particular description of goods can be admitted to control the general rules of law. Such a principle would be ex-ti~emely pernicious in its consequences, and render vague and uncertain all the rules of law on the sale of chattels. Besides, in this case, the evidence ofFered was to show a custom that a sale, under the circumstances of the present case, amounted to a warranty. The action, therefore, should have been founded on the warranty, and not on the fraud. But the evidence would not be admissible under any form of action. The motion to set aside the nonsuit must, accordingly, be denied.(a)

Motion denied.

(a)

 Vide *Holden*v. *Daken,*4 *Johns Rep.*421, (2d ed.) 422. n (a.) *Sands*& *Croup*v. *Taylor & Levett,*5 *Johns. Rep.*395. 411 (2d ed.) *n.*(d) *Executors of Evertson*v. *Miles,*6 *Johns. Rep.*138.