George P. Lawrence et al., Respondents, v. Martin Gallagher et al., Appellants

George P. Lawrence et al., Respondents, v. Martin Gallagher et al., Appellants. (Argued April 10,1878; decided April 23, 1878.) This was an action to recover defendants’ proportion of the loss upon a cargo of fruit, one-eighth of which plaintiffs alleged was sold to defendants. A memorandum of the sale was made and signed by brokers acting for the respective parties. The court held that the evidence was sufficient to authorize a finding that the broker signing for defendants was authorized so tó do. The authority of the broker was to buy on the “usual terms.” Parol evidence was given that, by well-established usage of the trade, the usual terms upon such sales were that the seller should have control of the property, and sell at auction or private sale, as he might deem best for the interests of the parties concerned, and make up an account of sales ; the profits or loss to be settled on rendering accounts. These terms were incorporated in the memorandum of sale, which was offered in evidence on the trial. This was objected to, on the ground that it did not constitute any lawfully authorized contract, and that if there was an entry on the books that was the best evidence. The objections were sustained; to which plaintiffs’ counsel duly excepted. Plaintiffs wrere nonsuited. Held, error; that parol evidence was proper to show what were the “usual terms;” that the contract was not a wagering contract, but was valid; that it was not necessary to show a delivery or offer to deliver the property, as, by the terms- of the contract, it was not to be delivered ; that it could not be said that the entry in the brokers’ books constituted the contract, and it did not appear that there was any entry or memorandum of the contract, save the one offered. Sidney S. Harris for appellants. Wm. W. Nilis for respondents. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance of order and judgment absolute against defendants on stipulation. All concur. Judgment accordingly.