The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-01-08
LAW RECOGNIZES
USAGES OF TRADE
Judge Edwards Instances This 10
Local Case.
AN OPINION FULL OF FINDINGS
In the Case ofJoncs Against Mackey,
Court Discusses the statute of
Limitations and Its Bearing on the
Case--Aner Making Several De.
cisions, Concludes by Granting n
New Trial Because the Verdict
Was Excessive.

The laws recognition of the usages
of trade received a local application
yesterday in an opinion by Judge Ed
wards.
1t was handed down in company with
a decision discharging the rule for
new trial in the case of the Arcade
File company against T. F. Leonard.
The company sued for s2S0.06 on an or
der of files delivered early last year.
Mr.. Leonard put in a set off of s3S5.50,
which he claimed represented profit
which he could have made If the COM
pany had not broken a contract with
him. This contract was for 1000
dozens Of seconds" files that have a
slight flaw in them, and which are
sold at low figure. Immediately af-
ter the contract for these files were
made their price jumped from 81 to SO
cents a dozen. The company did not
fill the order and Mr.. Leonard holds
that by this breach of contract he lost
the amount he puts in as an offset.
The company's defense to this was
that the orders for files of the sec
onds' quality is always subject to the
company having them on hand. and
that this is a fact well known to the
trade. In passing upon this, Judge Ed
wards says:
THE JUDGES OPINION.
The jury found against the defendant
on the facts of the case. We do not see
how the verdict can be disturbed. The
only question upon which there might
have been some dispute was the admis-
sion of evidence to show the custom of
the trade in regard to orders for hles
known as 'seconds"-that the filling Gf
such orders depended upon the stocks of
seconds" oud hand when the orders
reached the factory. Before this princi-
ple could be applied to the facts of this
case. we instructed the jury that sthey
must find that such a custom existed, and
that it was known to the defendant. The
admission of this evidence of the usage
of trade is complained of as error. The
authorities decide otherwise.
A usage if known to the parties to
transaction to which It relates, is oblisa-
tory, unless excluded by the terms of the
interest, enters into it and is regarded as
a part of it, as much as though it had
been written there, Steely vs. Dickey, D
Buiss 2S7; Hurst VS.. North, 10 Pa. 2il;
First Nat. Bank, 133 Pa. 2il.
The rule for a new trial is discharged
and a new trial is refused.
In the suit of John w. Jones against
Lille e. Mackey and others Judge Ed
wards made an important ruling in the
matter of the statute of limitations.
Jones is carpenter living at Waver-
" and the Misses Mackeys are his
nieces. He built a house for them in
1883. They had other dealings and be-
tween them there was n sort of rum
ming account. The balance was large
ly in Jones favor and when there came
the demand for a settlement the Mac
KEYS disputed Jones' claim. He sued
and recovered judgment for the full
amount of his claim.
DEFENDANTS CONTENTION.
One of the contentious of the defend
ants was that the debt was barred Ivy
The statute of limitations. The work
on the house was finished Feb. o.
1889. The original summons in the
case was issued Feb 90, 1895, just four
days within the six years. 1t was lost
before it was served. April 9, 1885,
the plaintiff discovering this caused an
alias subpoena to be issued.
Judge Edwards decides that the suit
dates from the latter time, April 8,
and quotes Judge Sergeant as follows
to sustain him: 1T is a fatal fault
that the plaintiff does not show that
the original writ was returned: for if
the plaintiff shows a writ and does not
return it or have a return endorsed.
this will not avoid the statute of linn
itations."
This would have saved the defend
ants but for the fact that in 1890 they
paid the plaintiff $50 on account. A
partial payment CT a debt is very
emphatic recognition of it, Judge Ed
wards says, and their rule for tudg-
ment, Notwithstanding the verdict
must fall.
But it doesn't end here. His Honor
declares in conclusion that he thinks
the verdict was excessive and that the
only way in which justice can be done
the defendants is to grant them a new
trial, which he does by making the
rule for a new trial absolute.