Samuel Nelson

“ No usage,' he observes, 'was proved in the present case, and I believe none could have been proved.' Again, he observed: 'It would be ridiculous to suppose that an agent, for a commission of one-half per cent., is to guaranty the performance of a contract for the shipment of 1,000 barrels of tar.' The case was finally put upon the intent of the parties, as derived from the construction of the contract, and which was, that the defendant contracted only as agent, and not to make himself personally liable. ”

“ Some of them state that they recognised and had acted upon a custom in their own business, under which either party to the contract might require a margin to a reasonable amount, to be put up to secure the performance, and that the contract might be rescinded, if the party refused; that they could not say such was the general custom; that different persons have different customs; some consider there is such a usage, and some do not. ”

“ On the contrary, in Newcastle M. Co. v. Red River R. R., 1 Rob. Louisiana R., p. 145, it was directly held that it did apply to the different States, as a reasonable rule of presumption; and this would seem to be the true doctrine.
The term used in the books is principals 'beyond seas;' and in construing those words in acts of limitation, they are held to refer to other States of this Union.
And so, bills of exchange are foreign bills when drawn by a party in one State, upon one in another State. ”

“ According to the testimony of Ballard, a witness for the defendants, and the only one who details the circumstances connected with the making of the contract, Bell and Lurman both said that they made their contracts with reference to the usage. Ballard then asked Lurman if he should insert about the margin in the contract. Lurman said, no; he was satisfied with Mr. Bell. Whereupon, the contract was drawn without referring to the usage. ”

“ I. The evidence is not sufficient to establish a general usage in Baltimore, by which either party to a contract to deliver flour at a future time is entitled to demand a margin or security of the other. ”

“ The reader will perceive, from the prayers and instructions, that the two principal points in the case were: 1. Whether the evidence to support an usage was sufficient to authorize the jury to infer an usage; and 2. Whether Ford could maintain the action. ”

“ XI. Nor had the defendants the right to select the Merchants' Bank of Baltimore as the place of deposit for the plaintiff, under the penalty of a cancellation of the contract.
XII. Nor had Ballard, the broker, who made the contract, any right to give a notice to put up a margin. The notice, which required immediate action and the deposit of a large sum of money, should have come from the defendants themselves.
XIII. The instructions of the court are correct, and cover the whole case. The rule of damages, as laid down, is sustained both by reason and authority. ”