and place the contract was made, it became | ed to find whether the contract between the a part of the contract, was applicable to the parties was absolute to deliver the lumber on case, and sufficient. tional as claimed by the defendant. credit, as claimed by the plaintiff, or condi

[Ed. Note. For other cases, see Customs and Usages, Dec. Dig. § 22.*]

9. APPEAL AND ERROR (§ 1047*) - HARMLESS ERROR-RULINGS ON EVIDENCE.

Where judgment for defendant is affirmed on appeal in a contract action, alleged errors as to evidence relating to the damages need not be considered.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4132-4152; Dec. Dig. 1047.*]

Testimony having been offered to prove that the contract was made partly by communication over the telephone, and partly by letter, and that the parties had dealt together for several years, the defendant offered evidence to prove that it was a general custom of the lumber trade that accepted orders for goods would not be delivered to customers who failed to pay, when due, their bills for

Appeal from District Court of Waterbury; lumber which had been delivered to them Frederick M. Peasley, Judge.

Action by J. E. Smith & Company, Incorporated, against the Russell Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

John O'Neill, for appellant. George E. Beers and William A. Bree, for appellee.

THAYER, J. The complaint states the following facts: On December 16, 1904, the plaintiff, a retail lumber dealer in Waterbury, and the defendant, a wholesale lumber dealer in New Haven, mutually agreed that the latter should deliver to the former two car loads of lumber known as "roofers," at $16.50 per thousand feet. The usual course of dealing between them had been for the plaintiff to order lumber of the defendant, who then purchased it, and had it shipped in the defendant's name to Waterbury. When the lumber arrived, the defendant gave an order on the railroad company to deliver it to the plaintiff, who paid the freight, deducted it from the amount of the invoice, and paid the defendant, usually in 90 days, the balance of the invoice. The time for delivering these roofers was extended by mutual consent until about December 2, 1905, when the defendant refused to deliver them. The plaintiff has always been ready to receive and pay for the same. The answer admits that negotiations, partly in writing and partly oral, were had between the parties concerning the delivery of the roofers in question, but alleges that by the arrangement between them the defendant was only bound to deliver the roofers in case the plaintiffs had promptly paid, when due, for all lumber previously delivered to it by the defendant, and that at the time the defendant refused to deliver the roofers the plaintiff had not made payments then due for lumber previously delivered to it by the defendant. Upon the trial it was a conceded fact between the parties that there had been a failure and refusal to deliver one, and only one, of the car loads of lumber mentioned in the complaint. The contested issue between them was whether the defendant was justified in refusing to deliver that car load.

To

The

on previous orders. The plaintiff objected to this evidence, upon the ground that such custom was in conflict with the actual contract, and that such a custom could not be shown. In the brief upon which the case has been submitted the plaintiff states that the allegation of the complaint is that there was an agreement for the delivery of the lumber purchased on a credit of 60 days with 2 per cent. off for cash if paid within 5 days, and that this is admitted in the answer. pleadings do not show this, but, as already stated, the complaint in the first paragraph alleges the agreement to deliver, and in the third paragraph states what had been the previous course of dealing between the parties. This shows that the plaintiffs had usually taken 90 days in which to make payment, and nothing is said concerning a 2 per cent. discount for cash. The plaintiff, as appears from the finding, offered evidence to prove, and claimed to have proved, that the contract was as it is now claimed to have been, on 60 days' credit with 2 per cent. off for cash within 5 days. The plaintiff is right in its claim that a custom in derogation of the express terms of the contract cannot be shown. If there was such a custom as claimed, the parties by their contract could deal without reference to it; and, if the contract expressly, or by necessary implication, showed an intention to so deal, evidence of the custom would not be admissible. But the parties were at issue as to what the terms of the contract were; the defendant claiming that no absolute contract to deliver on credit was made, and that the custom which it endeavored to prove was a part of the contract. No objection having been made on the ground that the claimed custom was unreasonable or unknown to the plaintiff, or not general, and the question being as to the terms of the contract between them, the plaintiff's objection was properly overruled. If there was a general, known, and reasonable custom of the trade in which they were both engaged, it was competent for the defendant to show it, and to prove, if it could, that the order was given and accepted with such custom in view.

On cross-examination one of the witnesses, determine that question the jury were requir- who had testified as to the existence of the

custom, was asked on cross-examination this, the agreement of the parties was made in conquestion: "Assuming a person does pay his templation of such custom or usage." In the bills promptly; discounts his paper; is in good standing; has purchased goods; part have been delivered; the part delivered have been paid for, but an old bill has not been paid, over which there is a dispute or quarrel-do you know of any custom about delivery or failure to deliver the balance of the shipment, say, under such circumstances?" The question was objected to and excluded. This ruling was fully in the discretion of the court, in view of the complicated and hypothetical form of the question.

absence of any provision in the contract relating to the delivery upon credit, a lawful and reasonable custom or usage of the trade relating thereto will be taken to have entered into and become a part of the contract. Leach v. Beardsley, 22 Conn. 404, 409; Skiff v. Stoddard, 63 Conn. 198, 219, 26 Atl. 874, 28 Atl. 104, 21 L. R. A. 102. When both parties to the contract are engaged in the trade, they will be presumed to have knowledge of such custom. It is not necessary in such a case to prove actual knowledge, or that the custom is so general or universal that knowledge may be presumed. It was enough, therefore, to show that there was a usage or custom of the trade in which it was undisputed that both the parties to the contract were engaged, and it was not essential, as claimed by the plaintiff, that the jury should have been told that the custom must be universal and general. In the case of Smith v. Phipps, 65 Conn. 302, 32 Atl. 367, cited by the plaintiff in support of his contention, the parties were not engaged in the same trade. The plaintiff's trade was an unusual one, and the custom set up could not be presumed to be known by the defendant, who was engaged in an entirely different calling, without proof that the custom was general and universal. The charge was adapted to the case and sufficient for the jury's guidance. The questions of evidence, which are raised by the appeal relating to the matter of damages, it is unnecessary to consider, in view of the conclusion arrived at upon the main question in the case.

Evidence, both oral and written, was offered by the plaintiff to prove that, during the year between the date of the order for the lumber in question and the defendant's refusal to deliver it, the defendant had been behind in delivering other lumber ordered by the plaintiff, also that the price of lumber greatly increased during that period. This was upon objection excluded. The defendant's contention was that it had the right, under the arrangement between the parties, to refuse to deliver the roofers ordered. The fact that it had delayed deliveries of other orders, or that the price of lumber had increased, could not affect that right. The evidence was irrelevant to the issues before the jury, and properly rejected for that reason. The plaintiff requested the court to charge the jury that "the vendor would not have the right to retain possession of the lumber sold in the manner above stated, when there was an agreement for credit, merely because there was an old bill for lumber sold still unpaid for; and this especially would be true if the vendee claimed to have a set-off or right to recoup damages against such old bill." This assumes that there was an unconditional agreement to deliver the lumber on credit, and ignores the fact that the de- JOHNSON COUNTY SAVINGS BANK v. fendant claimed that the delivery was to be conditional upon the payment of previously (Supreme Court of Errors of Connecticut. April contracted bills then due. There was no question made by the defendant that in the former case the delivery should have been made. 1. TRIAL (8 251*)-REFUSING INSTRUCTIONS— It was only in the latter case that it claimed exemption from making delivery. The jury were instructed that, if they found that the acceptance of the plaintiff's order by the defendant was unconditional, then verdict should be for the plaintiff. The plaintiff, therefore, cannot have been harmed by the court's refusal to charge this request.

The plaintiff complains of the following instruction, which was given by the court: "If you should find that such custom or usage prevailed between the wholesale and retail lumber trade at the time the parties entered into the contract for the sale and purchase of the lumber; that it prevailed and was then operative in Waterbury-then you will find that such custom or usage was a part of the contract between the parties, and that

There is no error. The other Judges concurred.

WALKER.

14, 1909.)

MATTERS NOT IN ISSUE.

(82 Conn. 24)

The refusal of a requested instruction, based on a defense eliminated from the case, is not error.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 587; Dec. Dig. § 251.*]

2. TRIAL (§ 260*)-REFUSAL OF INSTRUCTIONS -MATTERS COVERED BY OTHER INSTRUCTIONS.

The refusal of a request for instructions is not error, where the matters therein contained are fully covered by instructions given.

[Ed. Note.-For_other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.*]

3. BILLS AND NOTES (§ 365*)-RIGHTS OF BONA FIDE Holder.

The holder of negotiable paper obtained in due course of business holds the same free from any defect of title of prior parties, and from any defenses available to such parties among themselves, and may enforce payment for the

full amount of the instrument against all per- The defendant set up in her answer that sons liable thereon.

free from any defect of title of prior parties, of fraud-on the question of good faith or and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof, against all parties liable | thereon. Gen. St. 1902, § 4227. The plaintiff cannot complain because the court failed to instruct the jury, as requested, that "the fact that the Puritan Manufacturing Company and this bank are located in the same town in Iowa is no evidence whatever that this bank knew that the Puritan Company's agent made false statements at the time these notes were executed." Although remote, yet the court properly noticed this circumstance as tending to show that the plaintiff had an opportunity to obtain knowledge of the facts which the defendant claimed impeached the validity of the instruments in suit.

bad faith. It is always necessary for the jury to consider the evidence reasonably and from all the surrounding circumstances. Take into consideration the direct evidence of Mr. Frye and Mr. Taylor, which I have read to you. Take into consideration, also, the facts testified to by Mr. Frye in his cross-examination, and upon the entire evidence in the case say whether the plaintiff has satisfied you by a fair preponderance of the evidence that it is a bona fide holder of the paper for value in the due course of business." This evidence was properly admitted without objection upon the part of the plaintiff. Its weight and sufficiency were questions properly submitted to the jury, to be passed upon by them in connection with the other facts appearing in evidence. Adopting the plaintiff's suggestions would have been a clear invasion of the province of the jury.

It appeared that the plaintiff was attempting to collect the contested paper from a party in Connecticut, when no effort had

ty discounting the paper at its bank, who resided in the same town in Iowa. In this connection an expert witness was called for the defendant, who testified that in the usual course of banking business it was customary for a bank to look for payment to the party (the indorser) who brought the paper to the bank for discount. This evi dence was admissible as tending to show that there was an understanding and a cooperation between the plaintiff and the Puritan Company in the collection of these securities.

The seventh request to charge was objectionable, in that it asked the court to give undue prominence and weight to the testmony of two of the plaintiff's witnesses, and ignored other facts proven of importance for a proper determination of the prop-| been made to obtain payment from the parosition involved in this request. Among other witnesses testifying for the plaintiff was William A. Frye, cashier for the plaintiff bank, who upon direct examination stated that these bills were purchased by the plaintiff in good faith and without any knowledge of fraud attaching to them. From his cross-examination it appeared "that the plaintiff bank acquired these and other obligations of a similar character, amounting in all to $7,500, at 80 per cent. of their face value, with the understanding that if they were all collected the balance, after paying the costs of litigation and 7 per cent., should be paid to the company, and that all the bills which were not collected should be turned back to the Puritan Company; that the bank made no attempt to collect any of these obligations from the company, although in the ordinary course of business the bank should have charged all of these bills which were not paid back against the party for whom they had discounted, and collected them from that party if they could; that the Puritan Company notified the acceptors of the paper at the time when these bills became due, and also made collections of them." The plaintiff had no right to demand that the court should instruct the jury that none of these facts elicited in this cross-examination were relevant or of any importance in passing upon the question of bad faith. Bad faith is predicated upon a variety of circumstances, some of them slight, and others of more significance. Dutchess Co. M. Co. v. Hachfield, 73 N. Y. 226.

In this connection the court instructed the Jury that "all of these facts appearing in the cross-examination of Mr. Frye are to be

The trial judge instructed the jury fully and correctly as to the rights of a bona fide holder who takes negotiable paper in due course before maturity, in relation to the different provisions of our negotiable instrument act and its application to the facts of the case on trial, the question of fraud and the necessity of notice of such an infirmity when negotiable paper has been obtained by a third party before maturity, the burden of proof, its application to the different issues, and the parties upon whom it rested. He fairly stated the claims of the plaintiff and defendant, and the legitimate evidence somewhat in detail. The judge embraced in his charge all the propositions of law proper for the consideration of the jury which were referred to by the plaintiff in its request to charge. The instructions properly, and with unusual completeness, enumerated the elements to be considered in estimating the damages. The views we have just expressed answer one of the principal grounds of the plaintiff's complaint that the charge was not correct, adapted to the issues, and sufficient for the guidance of the jury.

There is no error. The other Judges con

them if they could; that the Puritan ComFIRST NAT. BANK OF IOWA CITY v. pany notified the acceptors of the paper at BRENNER. the time when these bills became due, and

(Supreme Court of Errors of Connecticut. also made collections of them. In the SavApril 14, 1909.) TRIAL (8 252*) INSTRUCTIONS RECITING