Townsend v. Whitby & Zelefro

5 Del. 55

• Court: Superior Court of Delaware
• Decided: July 5, 1848
• Status: Published

Opinion

By the Court:—

There seems to be this difference between a custom general or particular, and a usage of trade. The one must be ancient, even from time immemorial; it is sufficient for the other if it be established, known, certain, uniform, reasonable and legal. For the purpose of ascertaining the otherwise uncertain meaning of the parties, where there is no special contract, such a usage even of a particular person may be proved, if it be generally known. (2 Greenl. Ev. 242, § 251.) If such a usage cannot be proved in this case, as fixing the price of this grain, it would seem to follow that the price of grain at the time of delivery would govern, and not the price when demanded.

Evidence admitted.

The witness proved that the usage among grain dealers at Cant-well’s Bridge was, when farmers send grain without any special contract it is received on a market for sixty days, and the market price at the end of that time governs, unless the seller prices it in the mean time. He did notdmow whether such was the usage of Whit-by & Zelefro.