BLAKEMORE V. HEYMAN.
581
BLAKEMORE, MAYO & Co. v. HEYMAN. (Circuit Court, D. Kentucky. 1. CoMMERCIAL USAGE-GENERAL LAW.
April 5, 1881.)
In order to have a commercial usage take t1).e place of the general law, it must be so uniformly acquiesced in, and for such a length of time, that the jury will feel themselves constrained to find that it entered into the minds of the parties and formed a part of the contract. Lyons v. Culbertson, 83 Ill. 37. 2.· SAME-NEW YORK COTTON ExchANGE. Therefore, the laws, rules, and regulations which govern the members of the New York cotton exchange can haw no effect npon the legal rights of a party to a contract, who did not know of or acquiesce in the same.-[ED.
Henry Burnett, for plaintiffs. Gilbert, McGonagill cJ; Reed, for defendant. BARR, D. J. This is a suit to recover a balance of $687.19, which plaintiffs alleged they paid for defendant at his instance and request. Plaintiffs are commission merchants, doing business in New York, and are members of the cotton exchange of that city. They deal in produce on commission. Defend· ant is a dry goods merchant, doing business in Henderson, Kentucky. Plaintiffs bought on the cotton exchange, New York, for defendant, 100 bales of cotton, to be delivered February, 1879. This contract matured, and they say they closed it out according to the rules and regulations of the cotton exchange, and there was a loss of $44.75. They, at the request of defendant, sold March 24, 1879, for his account, 100 bales of cotton, June delivery. They sold March 26, 1879, upon like request and account, 100 bales of cotton, July delivery. These sales were made on the cotton exchange, and at the prevailing rates. Plaintiffs then had in hand as margin $660, less the $44.75 loss on the purchase of 100 bales of cotton for February delivery. The market advanced, and plaintiffs demanded of defendant additional margin, and he sent them, April 1,1879, $75, and promised, April 3, 1879, to send them $300 more, but failed to do so. The plaintiffs, on the fifteenth of April,
582
FEDERAL REPORTER.
1879, coverecl these outstanding contracts by the purcl.iase, from two memberS dfthe cotton exchange; of the same amount of cotton, and same delivery, June and July. The cotton thus purchased cost rnore than the price for which the cotton was sold in March. The difference was settled as of the fifteenth of April, and the contracts which were entered into April 15th substituted for the March contracts, and thus the transaction was closed, and plaintiffs released from any further liability. The loss on the contract forthe J nne delivery was $679.25, and on the contract for the July delivery was $578.25. These sums, together with the plaintiffs' commission, after deducting the margin in their hands, made the balance of $687.19 sued for. The defendant admits the employment of plaintiffs and the sending of the margins to them, but puts in issue every other material allegation of the petition. He denies that there was a sale in March of the c9tton, as alleged,. or that there was a purchase in April. He denies all knowledge of the rules, regulations; or customs of the New York cotton exchange. He also alleges that any contract or contracts which plaintiffs entered into were with the express nnderstanding that only the difference should be paid, and that they were really only wagers upon the rise and fall of the market, and void. I have carefully read the evidence, and need only consider whether or not plaintiffs had the right to close out the June and July deliveries on the fifteenth of April, because defendant failed to put in their hands the margins required by them of him. There is no evidence proving or tending to prove that there was a special agreement between the parties which authorized the plaintiffs to close out these contracts in advance of their maturity, because of the failure of defendant to put up margins to cover the fluctuations of the cotton market in New York. This right is sought to be derived from the rules and regulations of the New York cotton exchange, and the custom prevailing in the New York cotton market. All knowledge or notice of the rules and regulations of the New York cotton I
v.
HEYMAN.
583
exchange is denied by defendant, and he reiterates these denials in his testimony. The plaintiffs have' failed to prove defendant's knowledge of. these"rules and liegulat.ions, or. that he agreed to be bound by them in his dealings plaintiffs, or t4at the contract between plaintiffs and defendant was to be controlled or ilrned by them. Indeed, there is no affirmative evidence upon this subject other than the fact that the dealings were upon margins, and that defendant seemed to have recognized plaintiffs' right to call for additional margin. But, as far as I can see from the evidence, never at anytime .hIDs defendant wa.ived his legal rights in, the evellt he failed to put up margin as required by the absence of an agreement plaintiffs had no plaintiffs. legal right to close out 'Contracts on the fifteenth of April which did not mature until June .and July. ' The laws, rules, and the members of the New York cotton exchange. can have no llffect upon defendant's legal rights, as he did not know, of or acquiesce in them. If, however, it be conceded that. defendant is bO,Und to repay to plaintiffs all losses which thejincurred in accordance with the laws and rules governing the New York cotton exchange, I should be disinclhied to judgment in favor of plaintiffs, because it is not shown they were compelled' to do what they did. The parties to whom tMy allege they sold the cotton were Waldo & Dayton, plaintiffs' brokers, and they nowhere prove that Waldo & Dayton required of them more margin than defendant had already furnished them, nor, indeed, that any demand for margin had been made of them, or would be made. Plaintiffs' call for an additional margin was, as far as this record shows, made for plaintiffs' own protection, and not because margins had been demanded of them. In regard to a custom in New York outside of the cotton exchange, which Mr. Watts, president of the cotton ex. change, attempts to prove, it is sufficient to say that no such custom is pleaded, nor is there any eVIdence tending to provo defendp,nt's knowledge of it, or that it is a well·known usage
In
584
or custom. In order to have "commercial usage take the place of general law it must be so uniformly acquiesced in, and for such a length of time, that the jury will feel themselves constrained.t9 find that it entered into the minds of the parties and formed a part of the contract." Lyons, etc., v. Culbertson, 83 Ill. 37. The plaintiffs have failed to sustain their action, and judgment will be for defendant and his costs expended herein.
MANSFIELD, FREESE
& Co.
DUDGEON
&
GORDON.
(Oircuit Oourt, W. D. Michigan, S. D. November 26, 1880.1 1. NEW TRIAL-SURPRli:lE AND NEWLy-DISCOVEltED EVIDENCE.
Motion for new triaJ upon the grounds of surprIse and newly-discovered evidence granted under the circumstances of this case, where the same was not brought to a hearing until after the expiration of 11 years from the time it was entered.-[ED.
Assumpsit. Motion for New Trial. E. S. Eggleston, for plaintiffs. Chas. H. Stewart and Hughes, O'Brien & Smiley, for defendants, on the argument of motion. 'WITHEY, D. J. In .November, 1869, this cause was tried and a verdict for plaintiffs rendered for over $6,000. A motion for a new trial was then entered, but has never been brought to a hearing until now, after eleven years have expired. Ordinarily such delay would be sufficient reason for dismissing the motion, for without very good grounds for justification no party ought to be forced to retry his case at so remote a day that it may be presumed difficult to obtain the evidence given upon the former trial. But the fact that defendants' attorney, soon after the trial, became and continued seriously ill for a long period, and became a confirmed invalid, unable to attend to the ordinary duties of an attorney, operates as some excuse for delay. It appears, also, that two of the plaintiffs, Mansfield and Freese, were, in 1872, adjudicated bankrnpts, and that their assignee has never entered an
