By the Court, Mullin, J.
When a contract is made for the purchase and sale of a given number of cords of wood, the vendor is bound to deliver, and the vendee is [177]*177entitled to receive, 128 cubic feet for each cord of wood so contracted for. Usage has prescribed the number of feet each cord shall contain; and in the absence of an agreement or of a custom that a less number of feet shall constitute a cord, the usage applies to and controls the agreement.
No different custom is suggested in this case; and hence the inquiry is confined to whether there was a contract between the parties by which the defendant was bound to accept less than 128 cubic feet for a cord; or whether the wood delivered was accepted in performance of the contract.
It appears by the evidence of the plaintiff’s witnesses that one of the defendant’s agents went into the woods while the wood in question was being cut, and saw it, and it was said in his presence that a few cords of it were too short; that while the wood was being delivered, there was no complaint that it was too short, but complaint was made on that subject when it was being measured. The defendant’s agent designated the place where the wood should be piled, and he gave directions as to the size of the piles. The height of the piles was objected to, at the time of the measurement, and a deduction was made, for the deficiency in height. Wade, one of the defendant’s agents, attended to the measurement, and stated to the plaintiff’s agents that the quantity was 2,438 cords, and did not make any complaint as to the result, nor intimate that he wished any further measurement. After the measurement was completed, Wade claimed there should be a deduction of ten cords, and it was made. The plaintiff’s book-keeper testifies that he attended the measurement, and that Wade complained that the wood was too short, and that an allowance should be made for it. The witness told him they came there to ascertain the running measurement of the piles, only, and Wade replied, “Very well, go on; if that was what I (the witness) [178]*178wanted, it was all right.” It was also proved that a part of the wood was sawed by the defendant’s hands, and a part of that thus sawed was used by the defendant.
Laying out of view, for the present, the evidence of an express agreement to take the wood as it was cut, as if it were four feet long, let us ascertain whether the facts above stated establish an agreement to accept the wood as if it were four feet long, or whether there was an acceptance of it in full performance of the contract, so as to preclude the defendant from now insisting that it was not as long as the contract called for.
When a contract is made for the purchase of a given number of cords of wood, which the purchaser is informed is but three feet long, he is not bound to accept of a pile of such wood eight feet long and four feet high, as a cord. He is entitled to 128 cubic feet. Such a pile gives him only ninety-six. Usage has defined the meaning of the word “cord and the contract must be construed in reference to it. And that meaning cannot be changed, unless the parties mutually so agree, or the contract was made in reference to some other well known custom or usage which recognizes a quantity less, than 128 cubic feet as a cord. The known length of the wood is the only circumstance, aside from the alleged express agreement, that can be relied upon in support of an implied agreement to take the wood upon the contract as if it were four feet; as that was the only fact then known to the parties. All the other matters testified to by the witness occurred subsequent to the making of the contract. That fact, alone, is not enough to establish such a contract.
If the contract is to be deemed as not made until the wood was actually delivered, not having been reduced to writing, all the facts proved were, of course, then known to both parties, and they are all to be considered in determining whether there was a contract to purchase the wood as if it were the proper length. Even [179]*179then, they do not conclusively establish such a contract. The facts are all of them competent to go to a jury, and from them it might infer such an agreement; but a finding against such a contract could not be set aside as against the evidence.
The next question is, do the facts proved show an acceptance of the wood delivered as a full performance of the agreement ?
The respondent’s counsel insist that they do ; and if the defendant’s agents did not intend to accept the wood as being a compliance with the terms of the contract, it was their duty to refuse to receive it, and to return what they had taken.
Had the plaintiff informed the agents of the defendant that the wood, if received by them, must be taken as if it were four feet long, and it had been then accepted, the acceptance would have been conclusive on the defendant. But no such condition was imposed, or notice given. If wood three feet long answered the purposes of the defendant as well as if it were four feet, it had no occasion to find fault with the deficiency in length, as it might be made up in the final calculation of the quantity. Or, if the wood delivered had been six feet long, it could not be claimed that it was to be estimated at four feet only. In each case the purchaser would be entitled to 128 cubic feet, and no more; and he certainly should not be obliged to take less.
The same principle is not to be applied to a contract for firewood or timber, purchased for some specific purpose, which requires it to be of a certain length. In that case, if wood of a length different from that contracted for is delivered and received, the contract is satisfied. But when the contract is for wood for being burned, and the contract does not define the length, it may be longer or shorter than four feet; but the vendor must deliver 128 cubic feet for a cord.
In the absence of any notice that an acceptance of the • [180]*180wood would be considered as an acceptance oí it as if it were four feet long, the acceptance and use would not estop the defendant from insisting ■ upon a full cord. Indeed the remarks of the book-keeper were calculated to induce the defendant’s agents to believe that the plaintiff would not insist that the wood should be considered, in arriving at the quantity delivered, as if it were four feet long.
I do not think the facts proved show such an acceptance as estops the defendant from alleging that the com tract was not fulfilled. It was for the jury to say whether the plaintiff proved an acceptance in full performance of the contract.
I come now to the express agreement sworn to by the witness Kellogg. He says that a day or two after the conversation between him and Goodwin, about selling the wood, he (witness) told Goodwin that, to avoid any trouble about measuring it, if he would take it at its length he (the witness) would take $4 per cord for it. And it appears that the price agreed on was the' sum thus indicated. It does not appear that Goodwin made any response, to this proposition. But it would be fair to presume, in the absence of evidence to the contrary, that $4 was accepted by the plaintiff’s agent instead of $4.50 asked, in consideration of the shortness of the wood. If this was the contract, there would be no ground for a claim for reducing the quantity because the wood was too short; and the judge might with great propriety have directed a verdict.
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By the Court, Mullin, J.
When a contract is made for the purchase and sale of a given number of cords of wood, the vendor is bound to deliver, and the vendee is [177]*177entitled to receive, 128 cubic feet for each cord of wood so contracted for. Usage has prescribed the number of feet each cord shall contain; and in the absence of an agreement or of a custom that a less number of feet shall constitute a cord, the usage applies to and controls the agreement.
No different custom is suggested in this case; and hence the inquiry is confined to whether there was a contract between the parties by which the defendant was bound to accept less than 128 cubic feet for a cord; or whether the wood delivered was accepted in performance of the contract.
It appears by the evidence of the plaintiff’s witnesses that one of the defendant’s agents went into the woods while the wood in question was being cut, and saw it, and it was said in his presence that a few cords of it were too short; that while the wood was being delivered, there was no complaint that it was too short, but complaint was made on that subject when it was being measured. The defendant’s agent designated the place where the wood should be piled, and he gave directions as to the size of the piles. The height of the piles was objected to, at the time of the measurement, and a deduction was made, for the deficiency in height. Wade, one of the defendant’s agents, attended to the measurement, and stated to the plaintiff’s agents that the quantity was 2,438 cords, and did not make any complaint as to the result, nor intimate that he wished any further measurement. After the measurement was completed, Wade claimed there should be a deduction of ten cords, and it was made. The plaintiff’s book-keeper testifies that he attended the measurement, and that Wade complained that the wood was too short, and that an allowance should be made for it. The witness told him they came there to ascertain the running measurement of the piles, only, and Wade replied, “Very well, go on; if that was what I (the witness) [178]*178wanted, it was all right.” It was also proved that a part of the wood was sawed by the defendant’s hands, and a part of that thus sawed was used by the defendant.
Laying out of view, for the present, the evidence of an express agreement to take the wood as it was cut, as if it were four feet long, let us ascertain whether the facts above stated establish an agreement to accept the wood as if it were four feet long, or whether there was an acceptance of it in full performance of the contract, so as to preclude the defendant from now insisting that it was not as long as the contract called for.
When a contract is made for the purchase of a given number of cords of wood, which the purchaser is informed is but three feet long, he is not bound to accept of a pile of such wood eight feet long and four feet high, as a cord. He is entitled to 128 cubic feet. Such a pile gives him only ninety-six. Usage has defined the meaning of the word “cord and the contract must be construed in reference to it. And that meaning cannot be changed, unless the parties mutually so agree, or the contract was made in reference to some other well known custom or usage which recognizes a quantity less, than 128 cubic feet as a cord. The known length of the wood is the only circumstance, aside from the alleged express agreement, that can be relied upon in support of an implied agreement to take the wood upon the contract as if it were four feet; as that was the only fact then known to the parties. All the other matters testified to by the witness occurred subsequent to the making of the contract. That fact, alone, is not enough to establish such a contract.
If the contract is to be deemed as not made until the wood was actually delivered, not having been reduced to writing, all the facts proved were, of course, then known to both parties, and they are all to be considered in determining whether there was a contract to purchase the wood as if it were the proper length. Even [179]*179then, they do not conclusively establish such a contract. The facts are all of them competent to go to a jury, and from them it might infer such an agreement; but a finding against such a contract could not be set aside as against the evidence.
The next question is, do the facts proved show an acceptance of the wood delivered as a full performance of the agreement ?
The respondent’s counsel insist that they do ; and if the defendant’s agents did not intend to accept the wood as being a compliance with the terms of the contract, it was their duty to refuse to receive it, and to return what they had taken.
Had the plaintiff informed the agents of the defendant that the wood, if received by them, must be taken as if it were four feet long, and it had been then accepted, the acceptance would have been conclusive on the defendant. But no such condition was imposed, or notice given. If wood three feet long answered the purposes of the defendant as well as if it were four feet, it had no occasion to find fault with the deficiency in length, as it might be made up in the final calculation of the quantity. Or, if the wood delivered had been six feet long, it could not be claimed that it was to be estimated at four feet only. In each case the purchaser would be entitled to 128 cubic feet, and no more; and he certainly should not be obliged to take less.
The same principle is not to be applied to a contract for firewood or timber, purchased for some specific purpose, which requires it to be of a certain length. In that case, if wood of a length different from that contracted for is delivered and received, the contract is satisfied. But when the contract is for wood for being burned, and the contract does not define the length, it may be longer or shorter than four feet; but the vendor must deliver 128 cubic feet for a cord.
In the absence of any notice that an acceptance of the • [180]*180wood would be considered as an acceptance oí it as if it were four feet long, the acceptance and use would not estop the defendant from insisting ■ upon a full cord. Indeed the remarks of the book-keeper were calculated to induce the defendant’s agents to believe that the plaintiff would not insist that the wood should be considered, in arriving at the quantity delivered, as if it were four feet long.
I do not think the facts proved show such an acceptance as estops the defendant from alleging that the com tract was not fulfilled. It was for the jury to say whether the plaintiff proved an acceptance in full performance of the contract.
I come now to the express agreement sworn to by the witness Kellogg. He says that a day or two after the conversation between him and Goodwin, about selling the wood, he (witness) told Goodwin that, to avoid any trouble about measuring it, if he would take it at its length he (the witness) would take $4 per cord for it. And it appears that the price agreed on was the' sum thus indicated. It does not appear that Goodwin made any response, to this proposition. But it would be fair to presume, in the absence of evidence to the contrary, that $4 was accepted by the plaintiff’s agent instead of $4.50 asked, in consideration of the shortness of the wood. If this was the contract, there would be no ground for a claim for reducing the quantity because the wood was too short; and the judge might with great propriety have directed a verdict. But Goodwin denies that he ever assented to receive less than 128 cubic feet to the cord; and it was for the jury to say which of the witnesses was worthy of credit. Although Goodwin does not contradict the plaintiff’s witness, as to what was said about taking it at the length it was cut, at $4 per cord, he does not deny the inference which would be drawn from it; which was that less than 128 cubic feet would be accepted as a cord.
[181]*181In every aspect of the case, the questions of fact were for the jury, and should have been submitted to them.
The defendant’s counsel excepted to the direction to the jury, but did not ask that any questions should be submitted to it; and the question is, whether such request was necessary, in order to enable him to get the benefit of the error in the direction to find for the plaintiff.
I think it was. In Bidwell v. Lament, (17 How. Pr. 357,) it was held that when a judge grants a nonsuit, in a case where there is conflicting evidence,. and no request is made, to submit the questions of fact to the jury, he cannot derive any benefit from the error. And an exception to the granting of the nonsuit is not equivalent to a request to submit the facts to the jury. It can make no difference, in principle, whether the court directed a nonsuit or ordered a verdict. In either case, it is the duty of the court to submit conflicting evidence to the jury, if requested so to do. But in the absence of a request, the court may itself pass upon the facts, and the parties will be deemed to have acquiesced in the action of the court.
The appellant’s counsel relies upon the exclusion of evidence offered by him to show the length of the wood and the number of cords delivered, at the rate of 128 cubic feet per cord, to reverse the judgment.
This evidence was utterly immaterial. There was no dispute but that, if the defendant was entitled to 128 cubic feet to a cord, 2,438 cords, for which the plaintiff claimed to be paid, had not been delivered. The plaintiff’ s whole case proceeds upon the theory that the defendant had expressly or impliedly agreed to receive, for a cord, less than 128 feet, or accepted a less quantity in satisfaction of the greater. The court must have found one or the other of these propositions; and proof that there was not of the wood 2,438 cords of 128 cubic [182]*182feet each, could not affect the finding. That was a conceded fact, in the case.
The defendant’s counsel suggests that the defendant’s agent had no power to agree to accept 2,091 cords of wood in satisfaction of a contract calling for 2,438. If we knew that the court found the facts to be as alleged, the conclusion of the counsel would follow. But, upon the evidence, the court had the right to find that the defendant agreed to take the wood as if four feet in length, provided the plaintiff would take $4 per cord therefor; and thus finding, the defendant was bound by the act of the agent, and there was a sufficient consideration for the agreement.
The defendant proved by the witnesses that one of the defendant’s agents drew a writing setting out the terms of the agreement in relation to the wood; that he presented it to the plaintiff’s agent who made the contract, who said it was correct, but he wished the plaintiff’s' name in it, instead of his own. It was never signed by either party. The defendant offered this writing in evidence, and it was excluded.
This paper is called by the counsel a memorandum, and he insists that it was competent evidence to show what were the terms of the contract between the parties; and he cites Guy v. Mead, (22 N. Y., 463.) The paper offered in this case was made by the defendant’s agent, and not by the plaintiff or his agent. In the case cited, it was made by the witness, and it was admitted because the witness swore that it was made at or about the time the transaction occurred, and that it was correct when made. He had forgotten the facts, and could only state them as, and because, they appeared in the paper. It was just as well to admit the paper as to allow the witness to read it. This paper, not being signed, was not evidence of the contract. It was made by the defendant’s agents, and was to them evidence that the con[183]*183tract was as they testified to it. But a memorandum is not received to corroborate a witness who recollects the facts, independent of it, but to recall the facts if he has forgotten them. When the witness may resort to it to refresh his recollection, it may be read in evidence. But unless it becomes necessary for this purpose, it is wholly incompetent. As well might a witness attempt to corroborate his evidence by calling a witness to testify that soon after a contract was made he¿ the witness, told him its terms as he swears to them on the trial. Such evidence would clearly not be competent. As to when a memorandum is competent, see Marcly v. Shults, (29 N. Y., 346.)
[Onondaga General Term,
April 2, 1867.
For these reasons I think the judgment should be affirmed.
Hew trial denied.
Morgan, Bacon, Foster and Mallin, Justices.]