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U.S. Supreme Court

Bliven v. New England Screw Company, 64 U.S. 23 How. 420 420 (1859)

Bliven v. New England Screw Company

64 U.S. (23 How.) 420


Where there was a company incorporated for the purpose of making screws, and they were sued by certain persons with whom they had been in the habit of dealing for not supplying a sufficient quantity of the manufactured article, according to orders which had been given and received, the defense was that the supply manufactured was not equal to the demand, and that the plaintiffs knew that the articles were furnished to customers in regular order, according to date.

Such custom was not a sufficient defense unless it was known to the other contracting party and formed a part of the contract.

Parol evidence of usage is generally admissible to enable the court to arrive at the real meaning of the parties, who are naturally presumed to have contracted in conformity with the known and established usage.

But parol evidence of custom and usage is not admitted to contradict or vary express stipulations or provisions restricting or enlarging the exercise and enjoyment of the customary right.

Page 64 U. S. 421

The evidence in this case proved that the plaintiffs knew of the usage of the defendants to supply orders as fast as the articles could be made, and according to a list kept in a book.

It was correct in the court to construe this evidence, and to instruct the jury that if they believed the evidence, it showed that the plaintiffs were chargeable with notice of the defendants' custom to fill their contracts only in the order in which they were accepted and in proportion with each other, and not in full, according to the strict terms thereof.

Bliven was of Westchester County, and Mead of Brooklyn, in the State of New York, and the New England Screw Company was a corporation created by Rhode Island. The suit was brought by Bliven & Mead in the supreme court of the State of New York, and removed by the defendants into the circuit court of the United States. The Screw Company brought an action against Bliven & Mead in the circuit court, which will be the subject of the case next reported. The suit by Bliven & Mead was against the company for not furnishing them with screws enough, and the suit by the company against Bliven & Mead was to make them pay for what had been furnished. Both suits grew out of the same series of transactions, which are fully stated in the opinion of the Court. The judgment of the court below in both cases was against Bliven & Mead, and hence both were brought up to this Court.

Page 64 U. S. 424

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