Robinson v. United States (80 U.S. 363)

ERROR to the Circuit Court for the District of California; the case being thus:

In June, 1867, Robinson & Co., merchants of San Francisco, entered into a written agreement with Major T. T. Hoyt, assistant quartermaster of the United States, 'to deliver,' on his order, '1,000,000 bushels of first quality clear barley.' The barley, according to the terms expressed in the contract, was to be delivered between the 1st of July, 1867, and the 30th June, 1868, at such times and in such quantities as might be required, for the use of the government troops, and at certain posts named; the precise points at those posts to be designated by the acting quartermasters at the posts themselves. But there was no specification in the instrument of any particular manner in which the barley was to be delivered, as whether in sacks or loose, and in what is known as 'bulk.'

Under this contract Robinson & Co. delivered, in sacks, all the barley required between July 1st, 1867, and the 1st of January, 1868; how much, exactly, did not appear, but it was more than 30,000 pounds. On the 10th of January, 1868, being required to deliver 30,000 pounds more, they tendered the quantity in bulk, that is to say, loose in wagons. The officer at the post where it was tendered refused to receive it, because it was not in sacks. Thereupon the contractor refused to furnish any more, and abandoned his contract altogether.

On suit brought by the United States, the government counsel asked a witness engaged in the grain business in California in 1867 and 1868 this question:

'Do you know the usage of the trade with respect to the delivery of barley?'

The question was objected to on the ground, among others, that it was incompetent for the plaintiff to vary the terms of the contract by a usage, but the objection was overruled. The witness then testified that it was the custom in California, as of course, to deliver grain in sacks, and had always been the custom; that he never knew it to be delivered in any other way, unless by special agreement, the custom of the trade being to deliver by sacks altogether; that there had been a few experiments at shipping wheat in bulk, but that these were exceptional, and that the vessels plying around the bay were not constructed for thus carrying grain; that sacks cost about 17 cents apiece, and held from 100 to 112 pounds.

There was no other witness produced to show the usage set up. The court (which, by consent of the parties, had been substituted in the place of a jury) found that, at the time of this contract, it was the usage in California, and always had been prior to that time, to deliver barley in sacks, unless it was expressly stipulated otherwise in the contract, and that, therefore, a tender in bulk did not satisfy the contract.

Judgment being accordingly given for the United States, the defendant brought the case here on exceptions to the evidence and findings.

Mr. E. L. Goold, for the plaintiff in error:

1. A usage, to amount to a custom, must be distinguished by antiquity, certainty, uniformity, and notoriety. Smith in his Leading Cases and all the authorities thus declare. Yet these qualities are not established by the case.

2. One witness, alone, cannot prove a custom, or any other fact depending upon the quality of notoriety.

Mr. G. H. Williams, Attorney-General, and Mr. B. H. Bristow, Solicitor-General, contra.

Mr. Justice DAVIS delivered the opinion of the court.