¶1delivered the opinion of the Court:
¶2In terms, this was a sale for cash, and not on time. But it is insisted, that by the usage at Buffalo, where the sale was made, a sale for cash on delivery, entitled the purchaser to three days within which to make payment. A number of witnesses so testified, who were in, pr were familiar with, the commission business at that place. Even if such a custom was established, it would not prevent the .parties from so contracting, that the seller would have the right to receive the money on the delivery of the produce. In this case, we are of the opinion, from the evidence, the parties did not contract with reference to such a custom or usage.
¶3The sale was made on the afternoon of the 18th of September, ,1861, and on the twentieth, payment was repeatedly demanded, but not obtained. On the same day plaintiff in error pursued the boats, and legal proceedings were instituted for the recovery of the corn on two of them, and on the next morning for the remainder upon the other. This was all done by plaintiff in error, within the three days, which he now claims, was allowed under the usage for the purchaser to make payment. Again, the order given to the purchaser for the delivery of the corn, contains this reservation: “Subject to my order until paid for.” The entry made in the books of plaintiff in error, noted it as a sale for cash, and not a sale on the usual terms. From all of these circumstances, it would seem that the sale was not on time, or under any supposed usage, but was an actual cash sale on delivery, and the title not to pass until the money was paid. This is the construction put upon the contract by plaintiff in error, as manifested by his acts. And is the strongest evidence that it was not within the usage, if any such existed.
¶4The remarks made by the judge during the progress of the trial, were to the counsel, and were not an instruction to the jury. Whilst courts should be extremely careful never to indicate, by any remark, their opinion of the weight of evidence, yet, unless it is calculated to have that effect, it will not be held ground for a reversal. We all know that it is almost impossible, in the progress of a trial, to avoid the necessity of counsel making inquiries of the court, and remarks made in reply, to enable parties to progress with the trial in conformity with the rulings on the various .questions that are presented for determination. When the rpotion'1 to exclude the plaintiff’s evidence was overruled, it1 was clearly indicated, that the court considered that there^yásVévidence'Establishing his right of recovery unless rebutted,-and yet no one wóuld think of seriously objecting because-.it was™ not given^as an instruction in writing, to the jury. If remarks made by the judge in the progress of a trial are calculated to. mislead the jury, or prejudice the party, it would be grounds for reversal. But in this case, we think the remark made by the judge was not calculated to-produce that effect.
¶5We perceive no force in the objection that the retainer was not proved by the writing. It appeared from the letters of plaintiff in error, that he had received, and had sold the com of defendant in error, and owed him for it. When this appeared, it was immaterial whether a retainer was proved or not, as that could in no wise affect the case.
¶6Even if a demand on plaintiff in error was necessary to authorize a recovery, it appears from the evidence to have been made, hi or can it make any difference that this proof was made by plaintiff in error. If such proof was necessary, and defendant in error failed to make it before he closed his evidence, the other party should not have supplied it, but have relied upon an instruction, informing the jury of its necessity to authorize a recovery; when he supplied this proof he waived all right to insist that the court erred in refusing to exclude the evidence for the want of this link in the chain. The practice of the court precludes it from instructing the jury to find as in case of a nonsuit. The plaintiff in error might, if he chose, have submitted the case to the jury and asked an instruction, that if the jury found that a certain material fact was not proved, they should find a verdict in his favor.
¶7The question whether the corn belonged to Smith and Beers jointly, or to Beers alone, was fairly presented to the jury, and they have found that it was not a joint ownership. This finding may be different from the conclusion at which we might have arrived, had the question been presented to us as jurors, yet we are not prepared to say that it is not warranted by the evidence. The instructions as given, present the law fairly as it is applicable to the facts in this case, and the verdict must be sustained, and the judgment of the court below affirmed.
¶8Judgment affirmed.