Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 '^ 
 
 IN HEnORY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daugliter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF 394.B88 
 
 The law of usages and customs; a treatise 
 
 3 1924 018 807 374 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018807374 
 
THE LAW 
 
 USAGES AND CUSTOMS. 
 
THE LAW 
 
 USAGES AND CUSTOMS 
 
 A TEEATISE 
 
 WHEREIN IS MORE PARTICULARLY POINTED OUT WHEN AND TO WHAT EXTENT 
 
 USAGES AND CUSTOMS MAY BE SET UP AS A DEFENCE, AND HOW, AS A 
 
 MATTER OF EVIDENCE, THEIR EXISTENCE WILL CONTROL, 
 
 VARY, OR EXPLAIN WRITINGS AND AGREEMENTS. 
 
 ••c <r BY 
 
 J. H. BALFOUR BEOWNE, Esq., 
 
 REGISTRAR TO THE RAILWAY COMMISSIONERS, AUTHOR OF '* THE LAW OF CARRIERS," " THE 
 MEDICAL JURISPRUDENCE OF INSANITY," ETC. 
 
 FIEST AMEEICAN EDITION. 
 
 WITH LARGE ADDITIONS TO THE TEXT AND REFERENCES TO AMERICAN CASES. 
 
 BY 
 
 S. S. CLAEKE, 
 
 COUNSELLOR-AT-LAW. 
 
 JERSEY CITY, N. J. : 
 
 FREDERICK D. LINN & CO., 
 
 ^sfa f ublis^OT anb foohstlUrs. 
 
 1881. 
 
Entered according to Act of Congress, in the year 1881, by 
 
 FREDERICK D. LINN & CO., 
 In the office of the Librarian of Congress, at Washington, 
 
PREFACE. 
 
 Me. Beo\vne's work is the product of an able English lawyer, and 
 it exhibits upon every page a thorough knowledge of the principles 
 of the law pertaining to this important topic. He commences at the 
 very threshold of the inquiry and pursues it to the end in an accurate, 
 logical and exhaustive manner. I have taken his work for the basis 
 of mine, because our law in this particular is wholly derived from the 
 English. An elaborate examination of the English cases was, there- 
 fore, deemed essential, and it seemed to me that it would be better to 
 utilize the skillful, discriminate and practical presentation of the sub- 
 ject by Mr. Browne than to attempt to construct an entirely new one 
 from my own investigations. I have made copious additions to Mr. 
 Browne's text wherever in my judgment a more ample illustration of 
 the rules under consideration tended to better suit the requirements 
 and assist in the development of the American law. My great object 
 throughout the work has been to secure a statement of the entire law 
 with precision and simplicity. The attempt to perform this task has 
 forced upon me the careful examination and patient study of many 
 hundreds of volumes ; and I have endeavored to give the gist of every 
 important case, including the facts, the conclusion reached and the 
 
 rule of law applied. 
 
 (v) 
 
VI PEEFACE. 
 
 In the preparation of the index, I have especially tried to note 
 every point, important or trivial. Generally, upon all leading ques- 
 tions, the name of the case covering the reference is given, so that 
 there will be no difficulty in finding the proposition or the case that 
 
 sustains it. 
 
 S. S. CLARKE. 
 
 September 5th, 1881. 
 
Table of Contents. 
 
 CHAPTER I. 
 
 OP CUSTOMS GENERALLY. 
 
 OF CUSTOMS GENEEALLY. 
 
 VALIDITY OF. 
 
 COMMON LAW, HOW EVIDENCED. 
 
 EVIDENCE OF GENERAL CUSTOM. 
 
 THE SCOPE OF THE WOBK. 
 
 PAETICULAB CUSTOMS. 
 
 GA VELKIN D — BOKOUGH-ENGLISH— CUSTOMS 
 OF MANOES— CUSTOMS OF LONDON. 
 
 CUSTOMS OP LONDON— HOW PEOVED. 
 
 OTHEB CUSTOMS EECOGNIZED. 
 
 CUSTOMS OF MEECHANTS, WHEN MUST BE 
 PEOVED. 
 
 GENEBAL AND LOCAL USAGES. 
 
 GENEEAL USAGE. 
 
 THE NAME "CUSTOM" TO BE APPLIED, WHEN. 
 
 CUSTOM AND PRESCRIPTION. 
 
 VALIDITY OF CUSTOM MUST BE ANCIENT. 
 
 MUST HAVE BEEN UNINTERRUPTED. 
 
 ILLUSTRATION. 
 
 ANALOGY BETWEEN CUSTOM AND LAN- 
 GUAGE. 
 
 24. 
 25. 
 
 26. 
 
 27. 
 28. 
 29. 
 
 31. 
 
 DEVELOPMENT OP CUSTOMS— DEAD LAWS. 
 
 PEACEABLE ENJOYMENT. 
 
 IT MUST BE REASONABLE. 
 
 MEANING OF EEASONABLE — PRIVATE IN- 
 TERESTS. 
 
 UNREASONABLE CUSTOMS,. WHAT ARE. 
 
 CUSTOM CONTEAVENING LAW OF EMBLE- 
 MENTS. 
 
 CUSTOM MUST BE CERTAIN. 
 
 ILLUSTRATIONS OF CERTAINTY — VAGUE 
 CUSTOMS. 
 
 CUSTOM MUST BE OBLIGATORY. 
 
 CUSTOM MUST BE CONSISTENT. 
 
 CUSTOMS, HOW CONSTRUED- PEESUMPTION. 
 
 THE FORCE OF CUSTOMS— USAGE AND STAT- 
 UTORY ENACTMENTS — INTERPRETATION 
 BY CUSTOM. 
 
 CONFUSION AS TO MEANING OF " CUSTOM "— 
 CUSTOM AND COMMON LAW. 
 
 HABITUAL LAW— USAGES. 
 
 CUSTOMS NOT COMMON LAW— EVIDENCE. 
 
 CHAPTER II. 
 
 AS TO CUSTOMS OF THE COUNTRY AND THE ADMISSIBILITY OP THE PROOP OP 
 
 THESE. 
 
 34. EVIDENCE OF USAGE. 
 
 35. IMPROVEMENT OF LAW. 
 
 36. CUSTOMS OF THE COUNTKY— PAROL EVI- 
 
 DENCE. 
 
 37. THE CONSTRUCTION OF GRANTS BY USAGE. 
 
 38. AS TO LEASES. 
 
 39. USAGES OF TRADE. 
 
 40. RULE IN BROWN V. BEYNE. 
 
 41. TO ASCERTAIN MEANING OF WORDS. 
 
 42. AS TO TERMS OF ART, <4C. 
 
 43. RULE IN WIGGLEWORTH V. DALLISON. 
 
 44. CUSTOM AS TO COURSE OP HUSBANDRY. 
 
 45. WHERE LEASE IS SILENT AS TO TIME— CUS- 
 
 TOM AS TO ALLOWANCE FOE SEEDS- 
 STIPULATION IN LEASE. 
 
 46. AS TO COMMERCIAL TRANSACTIONS- PRIN- 
 
 CIPAL OF ADMISSION OF CUSTOM— THE 
 POLICY OP THIS. 
 
 47. SILENCE OF COMMON LAW— AWAY-GOING 
 
 CROP— TENANT-EIGHT— CUSTOM NOT IN- 
 CONSISTENT ADMITTED— OPERATION OP 
 CUSTOM. 
 
 48. AS TO TEEMS ON WHICH TENANT MAY" 
 
 QUIT. 
 
 49. INTENTION TO EXCLUDE CUSTOM. 
 
 50. CUSTOM OF COUNTRY WHEN INOPERATIVE. 
 
 51. TEEM OF HOLDING AND OPERATION OP CUS- 
 
 TOM—REASON FOR ITS ADMISSION IN 
 THIS CASE.- 
 
 52. CUSTOM OP COUNTRY AS TO TIME— WHERE 
 
 LETTING IS BY DEED— " MARTINMAS " 
 EXPLAINED. 
 
 53. CUSTOM NOT EXCLUDED BY TEEMS OF LEASE. 
 
 54. AGREEMENT EXCLUDING PROOF OP CUSTOM. 
 56. WHAT CUSTOMS ARE BINDING— CUSTOM TO 
 
 PAY FOR TILLAGES. 
 
 (vii) 
 
Till 
 
 TABLE OF CONTENTS. 
 
 CHAPTER III. 
 
 THE USAGES OF TRADE AND THEIR ADMISSIBILITY AS EVIDENCE. 
 
 56. USAGES OP TRADE IN COMMERCIAL CON- 
 
 TEACIS. 
 
 57. GENERAL RULES AS TO ORAL EVIDENCE. 
 
 58. COLLATERAL AGREEMENTS. 
 
 59. SUBSEQUENT ORAL AGREEMENT— RULE IN 
 
 GOSS V. LORD 'NUGENT. 
 
 60. COLLATERAL AGREEMENTS. 
 
 61. GENERAL PRINCIPLE ILLUSTRATED. 
 
 62. RULE AS TO EXTRINSIC PAROL EVIDENCE 
 
 —PRESUMPTION. 
 
 63. USAGE IN RELATION TO AMBIGUITY— THE 
 
 MEANING OF WORDS. 
 
 64. THE LEGAL PRINCIPLES AND USAGE AS EVI- 
 
 DENCE. 
 
 ■65. AS TO THE EXTENT TO WHICH USAGE SHOULD 
 BE ADMITTED TO VARY WRITTEN CON- 
 TRACTS—PRACTICE OP TRADERS. 
 
 ■66. ATTEMPTS TO LIMIT SCOPE OP CUSTOM- 
 WRITTEN CONTRACT TO SPEAK. 
 
 67. DANGERS OF EXPLANATORY EVIDENCE. 
 
 68. EVIDENCE OP USAGE INDISPENSABLE, 
 
 WHERE. 
 
 69. WHY PAROL EVIDENCE IS ADMITTED— LAW 
 
 AND EVIDENCE— EVIDENCE THE FOUND- 
 ATION OF LAW. 
 
 70. USAGE OF TRADE AND CUSTOM OF MER- 
 
 CHANTS TO BE DISTINGUISHED. 
 '71. PARTICULAR GENERAL CUSTOMS. 
 72. METHOD OF PROOF. 
 173. THE FORCE OP USAGE. 
 
 74. ELEMENTS TO BE ATTACHED TO USAGE- 
 
 GROWING USAGE— PREVALENT USAGE. 
 
 75. PRINCIPLE OF ADMISSION— KNOWLEDGE OF 
 
 CUSTOM PRESUMED. 
 
 76. MAY BE REBUTTED. 
 
 77. INCIDENTS OP A USAGE MUST BE REASON- 
 
 ABLE. 
 
 78. VOID USAGES. 
 
 79. HOW PROVED. 
 
 80. PROOF OF. 
 
 CHAPTER IV. 
 
 THE USAGES OF TRADE, THEIR OFFICE. 
 
 81. EVIDENCE OF COLLATERAL CUSTOMS. 
 
 82. EVIDENCE FROM ANALOGY OP CUSTOMS. 
 
 83. EFFECT OP CUSTOM ON WRITTEN CONTRACT 95. 
 
 — THE RULE OF LAW— TO EXPLAIN. 96. 
 
 84. USAGE ALLOWED TO ADD TO CONTRACT. 
 
 85. USAGE DEFINING AND EXPLAINING — MEAN- 97. 
 
 ING OF WORDS EXPLAINED. 
 
 86. PHRASES EXPLAINED BY USAGE. 
 
 87. "DAYS"— PITCH PINE TIMBER. 98. 
 
 88. EXPLANATION BY USAGE -^ LIEN ABRO- 
 
 GATED BY. 99. 
 
 89. USAGE IN RELATION TO BILL OF LADING. 
 
 90. BILLS OP LADING AND OTHER MATTERS. 100. 
 .91. USAGE IN RELATION TO SALE OP HOPS— 101. 
 
 MEANING OP "BALE," "WET OIL," 
 "ABOUT," " LONDON." 102. 
 
 92. SPORTING USAGE- PARTICULAR AVERAGE. 
 
 93. NOTES AND BILLS. 103. 
 
 94. AS TO AMBIGUITY AND ADDITION OF 
 
 TERMS — MEANING OF WEEKLY AC- 104. 
 
 COUNTS IN BUILDING TRADE — HOW 105. 
 
 WORDS ARE TO BE UNDERSTOOD — 
 
 PRESUMPTION — PECULIAR SENSE, HOW 
 SHOWN. 
 
 USAGE EXPLAINING CONTRACT. 
 
 UNDEFINED WORDS IN CONTRACT— USAGE 
 EKING OUT MEANING — NO AMBIGUITY. 
 
 AMBIGUITY INTRODUCED BY USAGE — 
 WHERE USAGE CAN ARISE — UNUSUAL 
 CONTRACT. 
 
 WHEN USAGE IS REFERRED TO IN CON- 
 TRACT. 
 
 ORDINARY PAROL EVIDENCE AND USAGH 
 —RULES AS TO USAGE. 
 
 CLASSIFICATION—PRINCIPLE OP. 
 
 USING ADDING INCIDENT — CONTRACT 
 VARIED BY. 
 
 OP CORPORATIONS, ACTS NOT CONFORMA- 
 BLE TO CHARTER. 
 
 TIME OP PAYMENT — USAGE VARIED BY 
 TIME OF PAYMENT— CASES RECONCILED. 
 
 WARRANTY MODIFIED BY USAGE. 
 
 PROOF OP USAGE TO ESTABLISH i WAR- 
 RANTY. 
 
 CHAPTER V. 
 
 USAGES, THEIR OFFICE IN SPECI.4.L INSTANCES. 
 
 106. AS TO AMOUNT OF PAYMENT— YEARS AS UN- 
 
 DERSTOOD IN THEATRICAL PROFESSION 
 —IN RELATION TO A CHARTER PARTY. 
 
 107. EFFECT OFUSAGE ON LIABILITY OFCAKEIEE. 
 
 108. DISTINCTION BETWEEN VARYING CONTRACT 
 
 AND ADDING INCIDENT TO. 
 
 109. USAGE ADDING INCIDENT. 
 
 110. WEIGHT OF USAGE. 
 
TABLE OF CONTENTS. 
 
 IX 
 
 111. SALES BY SAMPLE — CITSTOM IN TIMBER 
 
 TRADE. 
 
 112. USAGE AS TO MEASUREMENT. 
 
 113. INTRODUCING BROKER-USAGE — CUSTOM 
 
 UNREASONABLE. 
 
 114. AS TO VARYING CONTRACTS BY USAGE. 
 
 115. ADDITION OF TEEM BY USAGE. 
 
 116. CONTRADICTION BY USAGE NOT ALLOWED 
 
 —INCONSISTENT PRINCIPLES— ADDITION 
 OF TERM INADMISSIBLE. 
 
 117. UNIVERSAL CUSTOM AND GENERAL LAW. 
 
 118. DIRECT VARIANCE OF USAGE AND CON- 
 
 TRACT. 
 
 119. EVIDENCE OP USAGE REJECTED. 
 
 120. WORDS OF GENERAL IMPORT. 
 
 121. TERMS ADDED MUST BE INCIDENTAL. 
 
 122. CONTRACT FOR SERVICES. 
 
 123. PRINCIPAL AND AGENT. 
 
 124. CUSTOM QUALIFYING MEANING — UNDIS- 
 
 CLOSED PRINCIPAL USAGE. 
 126. UNDISCLOSED PRINCIPALS, AGENT'S LIABIL- 
 ITY—AGENT'S LIABILITY MODIFIED — 
 QUALIFICATION OF USAGE INTRODUCED, 
 
 126. TACITLY IMPLIED INCIDENT. 
 
 127. REPUGNANCY THE TEST — VARYING DECI- 
 
 SIONS. 
 
 128. MODERN DICTUM. 
 
 129. DEFINITE RULE. 
 
 CHAPTEE VI. 
 
 PRIVATE USAGES, CUSTOM OF BROKERS, AC. 
 
 130. PRIVATE USAGES. 
 
 131. CUSTOMS OP STOCK EXCHANGE, HOW FAR 
 
 THEY BIND A PRINCIPAL IGNORANT OF 
 THEM. 
 
 132. NOTICE TO BROKER GOOD WHERE NOTICE 
 
 TO VENDEE WAS NECESSARY— USAGE. 
 
 133. THIS RULE RECONCILED WITH GENERAL 
 
 PRINCIPLE- RULES IN OTHER CASES — 
 CUSTOMS AT LLOYD'S COFFEE HOUSE— 
 BAYLIFFE V. BUTTEBWORTH. 
 
 134. THE SCOPE OF AUTHORITY. 
 
 135. NATURE OF USAGE TO BE CONSIDERED. 
 
 136. CONFIDENCE IN THE USAGES OF A TRADE. 
 
 137. INCIDENTS ANNEXED BY COMMON LAW— AS 
 
 TO TITLE. 
 
 138. EFFECT OF USAGE ON INSURANCE CON- 
 
 TRACTS. 
 
 139. AS TO MARINE INSURANCE— VOYAGE COM- 
 
 MENCED. 
 
 140. NECESSITY FOE USAGE. 
 
 141. USAGE AND LEGAL ENACTMENTS — USAGE 
 
 CANNOT CONTROL A STATUTE. 
 
 142. INSTANCES IN WHICH USAGES ARE BAD. 
 
 143. WHEEE MEANING IS GIVEN TO WORD BY 
 
 STATUTE — " BUSHELS " — " HOBBETT "— 
 CUSTOM AS TO WEIGHT— AS TO " LUMPS." 
 
 144. AS TO IMPORTANCE OF SUBJECT. 
 
Table of Cases Cited. 
 
 A. 
 
 Page 
 
 Abbott V. Bates, 43 L. J. 0. P. 150 118, 185 
 
 Aben v. Carson, 62 Mo. 207 91 
 
 Acker v. Bender, 33 Ala. 320 198 
 
 Adams v. Flanagan, 36 Vt. 400 205 
 
 V. Insurance Company, 76 Penn. St. 411 134 
 
 V. Morse, 51 Me. 499 112, 122, 127 
 
 V. Otterbark, 15 How. 539 32, 146, 206,303 
 
 V. Packet Company, 5 C. B. N. S. 493 90 
 
 D. Palmer, 30 Penn. St. 346 96,210 
 
 V. Peters, 2 C. & K. 723 286 
 
 V. Pittsburgh Insurance Company, 76 Pa. 411 95, 104, 173,210 
 
 V. Wilson, 12 Mete. 138 203 
 
 V. VVordley, 1 M. & W. 374 79,132,228 
 
 Adler v. Friedman, 16 Cal. 138 88, 200, 201 
 
 Affertyi). Conover, 7 Ohio St. 99 202 
 
 Alabama Railroad Company v. Kidd, 29 Ala. 221 64, 65, 84, 
 
 121, 163, 240, 281 
 
 Albatross, The, v. Wayne, 16 Ohio 513 134, 216, 261, 303 
 
 Albert v. Zeigler, 29 Penn. St. 50 199 
 
 Aldred's Case, 9 Eep. 58b .' 32 
 
 Aldrich -y. Eshleman, 46 Penn. St. 420 202 
 
 Alexander v. Gibson, 2 Camp. 555 >. 168 
 
 Alida, The, 1 Abb. 173 201, 206 
 
 Allan V. Comjtock, 17 Ga. 554 311 
 
 V. Sundias, 1 H. & C. 123 112, 190, 256 
 
 Allegre v. Maryland Insurance Company, 2 G. & J. (Md.) 136 23,55, 
 
 59, 102, 136, 167, 173, 184, 185, 249, 250, 319 
 
 Allen V. Dykers, 7 Hill, 497 84, 94, 135, 159, 164, 272 
 
 1). Forbush,4Gray,504 204 
 
 V. Lyles, 35 Miss. 513 181 
 
 V. Merchants Bank, 15 Wend. 215 35,115,143,299 
 
 V. Pink, 4 M. & W. 140 112, 127, 202 
 
 Almyner v. Dulith, 5 K Y. 28 202 
 
 Amory v. Melvin, 112 Mass. 83 215 
 
 Anderson v. Pitcher, 2 B. & P. 168 58, 92, 106, 275 
 
 (xi) 
 
Xll TABLE OF CASES CITED. 
 
 Page 
 
 Angerstein v. Hanson, 1 0. M. & E. 789 43 
 
 Anglesey V. Hatherton, 10 M. & W. 218 152 
 
 Anstill 1). Crawford, 7 Ala. 335 121, 147 
 
 Appleman v. Fisher, 84 Md. 540 127, 158 
 
 Appleton V. Loughton, Cro. Car. 516 12 
 
 Aralls v. Bailey, 49 N. Y. 464 110 
 
 Archer v. Merchants, &c., Insurance Company, 43 Mo. 434.. .288, 291, 292, 296 
 
 Aren v. Hofifman, 41 Miss. 616 204 
 
 Armstrong t). Tolen, 11 Wheat. 258 293 
 
 Arnold v. Poole, 4 M. & G. 860 11 
 
 Arthur v. Eoberts, 60 Barb. 580 311 
 
 Ashworth v. Eedford, L. & E. 9 C. P. 20 112, 184. 185, 266 
 
 Astor V. Union Insurance Company, 7 Cow. (N. Y.) 202 51, 84, 92, 
 
 173, 183, 311 
 
 Atkins V. Howe, 18 Pick. 16 95, 109, 112,308 
 
 Atkinson v. Allen, 29 Ind. 375 41, 82, 83, 84, 163 
 
 Attorney-General v. Cast Plate Glass Company, 1 Anstr. 39 104, 178 
 
 V. Drummond, 1 Dru. & War. 353 172, 189 
 
 Attorneys, &c., Patteshall v. Turpond, 3 B. & Ad. 890 172 
 
 Atwood V. Small, C. & T. 282 39 
 
 Audubon -y. Excelsior Insurance Company, 27 N. Y. 216 251 
 
 Aughinbaugh v. Coppenheffer, 55 Penn. St. 347 43, 110 
 
 Aulcome V. Upton, 5 Moll 398 IS 
 
 Austin v. Bingham, 31 Vt. 577 ,. 172 
 
 i;. Carter, 1 Mass. 231 213 
 
 V. Sawyer, 9 Cow. 40 112 
 
 V. Taylor, 2 Ohio 64 124, 161 
 
 i;. Williams, 2 Ohio 64 147,316 
 
 Avery i). Stewart, 2 Conn. 69 66,91,174,194,313 
 
 Aymer v. Astor, 6 Cow. 663 56, 183, 231 
 
 B. 
 
 Backentoss r. Stabler, 33 Penn. St. 231 112 
 
 V. Stabler, 88 Penn. St. 351 127 
 
 Badger v. Ford, 3 B. & Aid. 153 27 
 
 Bailey v. New Haven, &c.. Company, 107 Mass. 496 214 
 
 Baird v. Fortune, 7 Jur. N. S. 926 4S 
 
 Baiter v. Leland, 1 Blatch. 526 136 
 
 Baker v. Drake, 66 N. Y. 518 128,159,272 
 
 V. Jordan, 3 Ohio St. 438 112 
 
 V. Payne, 1 Ves. Jr. 459 129 
 
 V. Squier, 1 Hun. N. Y. 443 161, 162 
 
 Baldwin ^.'Carter, 17 Conn. 201 166 
 
 Ball V. Slack, 2 Whart. 539 213 
 
 Balto Steamboat Company v. Brown, 54 Penn. St. 77 199 
 
 Bancroft ti Peters, 4 Mich. 619 65 110 
 
TABLE OF CASES CITED. XIU 
 
 Page 
 
 Bane c. Detrick, 52 111. 19 86 
 
 Bank v. Keep, 13 Wis. 209 204 
 
 V. Kent, 4]Sr. H. 221 205 
 
 of Alexandria v. Deneale, 2 Cr. (C. C.) 488 26 
 
 Columbia v. Fitzhugh, 1 H. & G. (Md.) 239 14, 23, 52, 65, 
 
 92, 114, 126, 162, 240 
 
 ('. Lawrence, 2 Cr. (C. C.) 510 180 
 
 ('. Magruder, 6 H. & J. 172 57,194,306 
 
 I'. McKenney, 3 Cr. (C. C.) 361 25 
 
 Commerce v. Bissell, 72 N. Y. 615 82, 85, 110, 113, 162, 318 
 
 Utica V. Smalley, 2 Cow. 678 181 
 
 ('. Smith, 18 Johns. 230 57,306 
 
 V. Wager, 2 Cow. 712 26, 99, 105, 138, 181, 182, 298, 317 
 
 Washington v. Triplett, 1 Pet. U. S. 25 25, 57, 194, 306, 307 
 
 Bannon t'. Angier, 2 Allen 128 138 
 
 Barber v. Brace, 3 Conn. 9 23, 52, 56, 58, 65, 66, 84, 114, 126, 
 
 157, 162, 169, 171, 192, 240, 245, 261, 303 
 
 Bargaddie Coal Company v. Wark, 3 Macq. So. Cas. H. of L. 467 88 
 
 Barger v. Caldwell, 2 Dana (Ky.) 130, 131 54 
 
 Bargett r. Oriental Insurance Company, 3 Bos. 385.. 94, 135, 164, 250 
 
 Barker i'. Bates, 19 Pick. 255 ., 213 
 
 Barksdalei;. Brown, 1 N. & M. S. C. 519 23,58,63,96,98, 
 
 100, 143, 186, 270, 304, 318 
 
 Barlow V. Lambert, 28 Ala. 704 41,82,83, 84,162,318 
 
 Barmen v. Newell, 8 N. Y. 190 166 
 
 Barnaby v. Sauer, 18 La. Ann. 148 203 
 
 Barnard v. Adam, 10 How. (U. S.) 270 90 
 
 !'. Gaslin, 28 Minn. 192 199 
 
 V. Kellogg, 10 Wall. 383 67, 90, 94, 95, 96, 110, 
 
 113, 134, 14.3, 236, 238, 290, 310 
 
 Barnes t'. Ingalls, 39 Ala. 193 175, 310 
 
 Barnett v. Brunadae, 12 Ct. r. F. 787 7 
 
 Barnum v. Gatliff, 11 CI. & F. 45 310 
 
 Baron v. Plaide, 7 La. Ann. 229 310 
 
 Barr v. Sickles, 17 Ark. 428 93 
 
 Barrett v. Buxton, 2 Atk. 167 86 
 
 V. Rogers, 7 Mass. 297 56 
 
 V. Williamson, 4 McLean (U. S.) 597 161 
 
 Barry v. Morse, 3 N. H. 132 204 
 
 Bartlett v. Pentland, 10 B. & C. 760 129, 284 
 
 Barton t). McKelway, 22 N. J. L. 165 110,310 
 
 Bateman v. Lord Eoden, 8 Jones & Lat. 356 80 
 
 Batterman v. Pierce, 3 Hill 174 59 
 
 Battles V. Laudenslanger, 84 Penn. St. 446 86 
 
 Bawring v. Shepherd, 49 L. J. Q. B. 129 125 
 
 Baxter v. Leland, 1 Blatch. C. C. 526 157,211,261,303 
 
 V, Massassoit Insurance Company, 13 Allen 320 138, 250 
 
XIV TABLE OF CASES CITED. 
 
 Faqe 
 
 Bayley v. Wilkins, 7 C. B. 880 125 
 
 V. Williams, 7 0. B. 886 129 
 
 Bayliflfe v. Butterworth, 1 Exchq. 416 129, 283, 285 
 
 Beacon L. and F. Assurance Company v. Gibb, 7 L. F. N. S. 574 184, 266 
 
 Beale v. Paule, 27 Me. 645 203 
 
 Beals V. Terry, 2 Sandf. 127 82, 84, 98, 109, 112, 135, 163 
 
 Bean v. Balton, 3 Phila. (Penn.) 87 42 
 
 V. Belfast, The, 40 Ala. 184 310 
 
 Beaufort (Duke) v. Swansea, 8 Exch. 413 42 
 
 Beauvais v. Wall, 14 La. Ann. 199 202, 203 
 
 Beaven v. Delahay, 1 H. Bl. 5 61 
 
 Beckelsi). Cunningham, 14 Miss. 858 200 
 
 Beckley ■!). Munson, 22 Conn. 299 199 
 
 Beckwith v. Farnum, 5 E,. I. 230 25, 65 
 
 Bedford D. Flowers, 11 Humph. 242 196,269 
 
 Beirne v. Dond, 5 K Y. 95 95, 135, 235, 297, 299 
 
 Bennett v. Pierce, 28 Conn. 315 203 
 
 V. Ryan, 9 Gray 204 204 
 
 Benson v. Chapman, 86, B. N. S. 967 13 
 
 V. Schneider, 7 Taunt. 272 244 
 
 Benyon v. Nettlefold, 3 M. & Gord. 94 86 
 
 Berkshire Woolen Co. v. Proctor, 7 Cush. 417 52, 110, 158, 159, 205 
 
 Berry v. Cooper, 28 Ga. 543 121, 150 
 
 Besant v. Cross, 10 C. B. 895 39, 89 
 
 Bickford v. Pearson, 5 C. B. 920 48 
 
 Bidwell W.Thompson, 25 Tex. 245 204 
 
 Bigelow ■;;. Woodard, 15 Gray 560 ' 86 
 
 Biggs V. Brown, 2 S. & E. 14 50 
 
 Billings V. Tolland Insurance Company, 21 Conn. 139 204, 294 
 
 Birch V. Depeyster, 1 Stark. 210 121,189 
 
 Bishop of Winchester v. Knight, 1 P. Wms. 496 31 
 
 Bispham v. Pollock, 1 McLean 411 110 
 
 Bissell V. Campbell, 54 N. Y. 53 84, 94, 110, 135, 164, 167, 210, 257, 298, 302 
 
 V. Ryan, 23 111. 566 93, 119, 149 
 
 Blackett v. Bradley, 1 B. & S. 940, 9.54-5 27 
 
 V. Royal Exchange Assurance Company, 2 Cromp & J. 249. ..50, 57, 
 
 100, 132, 169, 184, 262 
 
 Blacquire v. Hawkins, 1 Dough. 378 12 
 
 Bladen v. Wells, 30 Md. 582 87 
 
 Blakeman v. Wood, 3 Sneed. 512 203 
 
 Blanchard v. Hilliard, 11 Mass. 85 57, 99, 300, 306, 307, 313, 316 
 
 Blewetto). Tregouning, 3 Ad. & El.'554 29 
 
 Bliss V. Ropes, 9 Allen 339 95, 136, 216 
 
 Blium V. New England Screw Company, 23 How. 420 108 
 
 Bliven v. New England Screw Company, 23 How. 420 311 
 
 Blossom V. Champion, 37 Barber, 554 46 
 
 Blundell v. Gladstone, 11 Sim. 486 80 
 
TABLE OF CASES CITED. XV 
 
 Page 
 
 Board v. Cronk, 5 N. J. Eq. 119 '. 182 
 
 Boardman v. Gallard, 1 Hun. 220 156 
 
 V. Spooner, 13 Allen, 353 67,96, 109, 112, 119, 164 
 
 I'. Volkening, 4 T. & C. 650 156 
 
 Bodfish V. Fox, 23 Me. 90 ". 110, 196, 270, 281 
 
 Bodley -v. Craig, IT. B. Mon. 77 197 
 
 Boehen v. Williamsburg Insurance Company, 35 N. Y. 331 263 
 
 Bogert V. Cauman, Anth. 70 196, 269 
 
 V. People's Bank, 16 Hun. N. Y. 270 ' 234 
 
 Bold V. Eayner, 1 M. & W. 343 57, 79, 129, 173, 191 
 
 Bolton 1). Colder, 1 Watts 360 95,104,246 
 
 Bond V. Coke, 71 N. C. 97 112, 127 
 
 Bonney v. Morrill, 57 Me. 868 87 
 
 Boody V. McKinney, 23 Me. 517 203 
 
 Boon t!. Belfast The, 40 Ala. 184 176,182 
 
 Boormen v. Jenkins, 12 Wend. (N. Y.) 566 167, 187, 234 
 
 Boorman v. Johnson, 12 Wend. 566 65,66,170, 184 
 
 Borastoni;. Green, 16 East. 71 : 61 
 
 Bosley v. Shanner, 26 Ark. 280 86 
 
 Bottomley v. Forbes, 5 Bing. 121 92, 129, 140, 255, 310 
 
 Bourne v. Gatcliffe, 3 Sc-. N. R. 40 51, 206 
 
 Bowen v. Brooks, 25 Penn. St. 210 311 
 
 V. Jackson, Whart. 252 96 
 
 V. >"ewell, 18 Barb. 391 58, 79, 85, 135, 174, 194, 
 
 195, 228, 298, 303, 308, 312, 316 
 
 V. Slaughter, 24 Ga. 338 199 
 
 V. Stoddard, 10 Met. 375 216 
 
 Bowling V. Harrison, 6 How. 259 19, 134, 210 
 
 Bowman v. Horsey, 2 M. & E. 85 129, 173, 190, 223,310 
 
 V. Torr, 3 la. 571 86 
 
 Bradbee v. Christ Hospital, 2 D. N. S. 164 11 
 
 Bradford v.Btew, 5 Met. 188 207,245 
 
 V. Manly, 13 Mass. 139 309 
 
 Bradley v. Bentley, 8 Vt. 243 199 
 
 V. Salmon Falls Company, 30 N. H. 487 268 
 
 V. Wheeler, 44 N. Y. 495 82, 84, 95, 135 
 
 Bradstreet v. Heron, 1 Ab. (U. S.) 209 247 
 
 Brady v. Oastler, 3'H. & C. 112 85 
 
 Branch v. Burnley, 1 Call. (Va.) 159 14, 65, 92 
 
 Branch Bank v. Gaffery, 9 Ala. 152 86 
 
 Brandao v. Barnett, 12 CI. & F. 805 14, 115 
 
 Brandon Manufacturing Company v. Morse, 48 Vt. 322 199 
 
 Bridgeport Bank v. Dyer, 19 Conn. 136 280 
 
 Briggs V. Lawrence, 3 T. E. 454 86 
 
 Brinkerhoff ■!), Alp, 35 Barb. 27 202 
 
 Brock V. Sturdevant, 12 Me. 81 200 
 
 Broadwell v. Broadwell, 1 Gill (Md.) 599 167, 175, 310 
 
 V. Butler, 6 McLean 296 211 
 
XVI TABLE OF CASES CITED. 
 
 Pagk 
 
 Brooks V. Aldrioh, 17 N. H. 443 202 
 
 V. Oriental Insurance Company, 7 Pick. 259 101 
 
 Brower v. Brower, 4 Conn. 269 166 
 
 Brough V. Whitmore, 4 T. R. 210 58 
 
 Brown V. Arrott, 6 A. & S. 402....". 95,104 
 
 V. Brown, 8 Met. 573 130 
 
 V. Brooks, 25 Penn. St. 110 90, 167, 175, 311 
 
 V. Byrne, 3 Ell. & Bl. 715 53, 90, 130, 231, 309, 314 
 
 V. Farron, 3 Ohio 155 43, 177 
 
 V. Forster, 113 Mass. 136 95, 112 
 
 1). Hotson, 9 C. B. N. S. 442 ; 30 L. J. C. P. 106 264 
 
 D. Jackson, 2 Wash. (Va.) C. C. 24 25,96,110,181,304 
 
 V. Slater, 16 Conn. 192 166 
 
 i;. Thurston, 56 Me. 127 112 
 
 V. Wiley, 20 How. 442 204 
 
 V. Willdnson, Co. Lit. 270b 150 
 
 Browne v. Byrne, 3 Q. B. 717 133 
 
 Bruce v. Wait, 1 M. & G. 39 11 
 
 Bruin v. Knott, 12 Sim. 452 11 
 
 Bryan v. Hunt, 4 Sneed, 548 203 
 
 Bryant v. Commonwealth Insurance Company, 6 Pick. 145..25, 99, 100, 143, 303 
 
 V. Poughkeepsie Insurance Company, 17 N. Y. 200 296 
 
 Brylwater v. Richardson, 3 N. & M. 748 112 
 
 Buchanan v. Exchange Fire Insurance Company, 61 N. Y. 26 294, 296 
 
 Bucki;. Grimshaw, 1 Edw. Ch. 147 23,63,115,118,158 
 
 Buckle V. Knaap, 36 L. J. Exchq. 49 85,125 
 
 11. Knoop, 2 L. R. Exchq. 125 92, 125, 310 
 
 Buckley v. Bentley, 48 Barb. 283 204 
 
 Buckman v. Chaplin, 1 Allen 70 208 
 
 Bulbroke v. Goodeve, 1 W. Bl. 569 11 
 
 Bulkly V. The Derby Fishing Company, 2 Conn. 353 232 
 
 Bunger v. Farmers, &c., Insurance Company, 71 Penn. St. 422. 278 
 
 Burger v. Farmers, &c., Insurance Company, 71 Penn. St. 422 157 
 
 Burnham v. Ayer. 30 N. H. 182 161 
 
 Burr V. Sickles, 17 Ark. 428 64, 117, 121, 147, 281 
 
 Burton v. Blin, 23 Vt. 151 315 
 
 Bush V. Pollack, 41 Mich. 64 189 
 
 Butler V. Walcott, 2 N. R. 54 262 
 
 Butterworth v. Volkening, 1 S. C. 450 156 
 
 Buzzell V. Willard, 44 Vt. 44 87 
 
 Byrnes 1). National Insurance Company, 1 Cow. 265 101 
 
 Bywater v. Richardson, 1 Ad. & El. 508 127, 233 
 
 C. 
 
 Cabot ■«. Winsor, 1 Allen 546 84,113,264,310 
 
 Cadwell v. Meek, 17 111. 220 41, 83, 84, 162,318 
 
TABLE OF CASES CITED. XVU 
 
 Page 
 
 Caine v. Horsfall, 2 C. & K. 349 39 
 
 Caldecott v. Smithies, 7 C. & P. 108 61, 149 
 
 Caldwell D. Dawson, 4 Met. 121 105,301,302,316 
 
 V. Meek, 17 111. 220 82 
 
 Callender v. Dinsmore, 55 N. Y. 200 135 
 
 Campbell v. Johnson, 44 Mo. 247 41, 90 
 
 Cann v. Morgan, 107 Mass. 199 309 
 
 Carey v. Bright, 58 Penn. St. 70 90, 167, 175, 310 
 
 Carmiohael ti. White, 11 Has. 262 311 
 
 Carnagyu. Woodcock, 2 Munf. 234 311 
 
 Carr v. Montefore, 5 B. & S. 408 81 
 
 Carson v. Blazer, 2 Binn. 487 48 
 
 Carter v. Abbott, 1 B. & C. 444 172 
 
 V. Coal Company, 77 Penn. St. 286 91, 110, 158, 210, 310 
 
 v. Dawnish, Carth. 82 
 
 Carthman v. Salem Insurance Company, 14 Bnsh 197 158 
 
 Cartwright v. Clayton, 25 Ga. 85 86, 88, 200 
 
 Cary v. Thompson, 1 Daly 35 202 
 
 Casco Manufacturing Company v. Dixon, 3 Cush. (Mass.) 408 169 
 
 Cash V. Hinkle, 36 Iowa 623 290 
 
 Casper v. Kane, 19 Wend. (N. Y.) 386 257 
 
 Cass ('. Boston and Albany Eailroad Company, 112 Mass. 455 214 
 
 V. Boston and Lowell Eailroad Company, 14 Allen 448 214 
 
 Cassidy v. Begaden, 6 J. & S. {N. Y.) 180 167, 187, 234 
 
 Castill V. Crawford, 7 Ala. 635 93 
 
 Caswell V. Boston and Worcester Eailroad Company, 98 Mass. 194 247 
 
 Catlin V. Smith, 24 Vt. 85 143, 186, 281 
 
 Cayzer v. Taylor, 10 Gray 274 246 
 
 Central Corporation v. Lowell, 15 Gray 106 122 
 
 Eailroad Company v. Anderson, 58 Ga. 393 112, 156 
 
 Chandlers. Belden, 18 Johns. 357 210 
 
 Chapman v. Devereux, 32 Vt. 616 186 
 
 V. Kimball, 9 Conn. 168 213 
 
 Charlton v. Gibson, 1 C. & K. 541 265 
 
 Chastain v. Bowman, 1 Hill (N. Y.) 270 23, 63, 115,158 
 
 V. Bowman, 1 Hill (S. C.) 276 118 
 
 Chattahooche National Bank v. Schley, 5 Ga. 369 282 
 
 Chaurand v. Augerstein, Peake 43, 61 92, 129, 185, 191,311 
 
 Chenery v. Goodrich, 106 Mass. 566 123, 146, 151 
 
 Chenowith D. Dickinson, 8 B. Mon. 156 245 
 
 Cherry v. Holly, 14 Wend. 26 56, 66, 192 
 
 Chesapeake Bank v. Swain, 29 Md. 483 117, 119, 123, 148, 186 
 
 Insurance Company v. Allegre, 2 G. & J. 164 55 
 
 Chetwood v. Brittain, 2 N. J. Eq. 438 199 
 
 Child V. Sun Mutual Insurance Company, 3 Sandf. 26 55 
 
 Childs V. Joaes, 8 B. Mon.;51 201 
 
 Chouteau v. Steamboat St. Anthony, 20 Mo. 519 181 
 
 *2 
 
XVlll TABLE OF CASES CITED. 
 
 Page 
 
 Christ V. Diffenbach, 1 S. & E. 464 199 
 
 Christian v. Dripps, 28 Penn. St. 271 95, 104 
 
 V First Division St. Paul Railroad Company, 20 Minn. 21 141 
 
 Chubb V. Seven Thousand Eight Hundred Bushels of Oats, 16 Law Rep. 
 
 492 81 
 
 Church V. Stetson, 5 Pick. 506 204 
 
 Cincinnati, &c. Company v. Boal, 15 Ind. 345 121, 282 
 
 Citizens Insurance Company v. McLaughlin, 53 Penn. St. 485 139, 150, 
 
 153, 288, 289, 290, 293 
 
 City Bank v. Addins, 45 Me. 455 204 
 
 V. Cutter, 3 Pick. 414 209 
 
 Clamorgan v. Guissere, 1 Mo. 141 41,66, 161 
 
 Clark V. Baker, 11 Met. 186 109, 281 
 
 V. Houghton, 12 Gray, 38 200 
 
 V. Smallfield, 4 L. T. N. S. 405 255 
 
 Clarke v. Adams, 83 Penn. St. 309 198 
 
 V. Roystone, 13 M. & W. 752 43, 50, 76, 84, 133 
 
 V. Stillwell, 8 Ad. & El. 645 131, 193 
 
 V. Westrope, 18 C. B. 765 266 
 
 Clayton v. Corby, 5 Q. B, 415 27 
 
 V. Gregson, 5 Ad. & E. 302 59, 91, 130, 172, 184, 269 
 
 V. Gregson, 4 Nev. & M. 602 175,266 
 
 Cleveland v. New Jersey Steamboat Company. 5 Hun. 523 145 
 
 Clifton V. Walmesley, 5 T. R. 564 39 
 
 Clinan v. Cooke, 1 Sch. & Lef. 22 73, 90, 311 
 
 Cobb V. Hatfield, 46 N. Y. 533 86 
 
 Cockburn v. Alexander, 6 C. B. 791 221 
 
 Cooke V. Bailey, 42 Miss. 81 39, 90 
 
 Cocker v. Guy, 2 B. & P. 565 41 
 
 Cockerell v. Kirkpatrick, 9 Mo. 697 204 
 
 Cochran •;;. Retburg, 3 Esp. 121 129, 173, 190, 310 
 
 Codman v. Armstrong, 28 Me. 9 121, 136 
 
 V. Evans, 5 Allen (Mass.) 308 17 
 
 V. Hall, 9 Allen 335 215 
 
 Coit V. Commercial Insurance Company', 7 John. 385 23, 55, 114, 
 
 166, 209, 244, 249, 250 
 
 Colcock V. Louisville Railroad Company, 1 Strob. 329 180, 281 
 
 Cole V. Goodwin, 19 Wend. 272 100, 143 
 
 Coleman v. Chad wick, 80 Penn. St. 81 42,218 
 
 V. McMurdo, 5 Rand. 51 80, 105, 317 
 
 Colkert v. Ellis, 1 W. N. C. 246 188, 219 
 
 Collender v. Dinsmore, 55 N. Y. 200 82, 84, 91, 95, 311 
 
 Ceilings 1). Hope, 3 Wash. 150 19, 23, 32, 58, 59, 63, 
 
 114, 118, 126, 134, 158, 210 
 
 Collins V. Blanteru, 2 Wils. 341 85, 86 
 
 V. DriscoU, 34 Conn. 43 165 
 
 V. Driscoll, 34 Conn. 43 91, 310 
 
TABLE OF CASES CITED. XIX 
 
 Page 
 
 Collins V. New England Iron Company, 115 Mass. 23 206,268 
 
 Colwell D. Lawrence, 24 How. Pr. 324 310 
 
 Collyer v. Collins, 17 Abb. Pr. 467 156 
 
 Com V. Charleston, 1 Pick. 186 213 
 
 V. Malloy, 57 Penn. St. 291 19,115,158,160 
 
 Comfort V. Duncan, 1 Mills 281 50 
 
 Commercial Bank of Kentucky v. Varnum, 3 Lans. 94, 95 34, 35, 298 
 
 Pennsylvania v. Union Bank of New York, 19 
 
 Barb. 392 148 
 
 Condit'W. Brown, 21 Tex. 421 86 
 
 CoDsequa v. Willings, Pet. C. Ct. 230.... 7, 14, 23, 63, 65, 92, 102, 110, 158, 210, 318 
 
 Cook V. Champlain, Transportation Company, 1 Den 92 245 
 
 V. Moore, 39 Tex. 265 86 
 
 V. Eider, 16 Pick. 186 213 
 
 V. Welch, 9 Allen, 350 110 
 
 Cooke V. England, 27 Md. 141 110 
 
 V. Fiske, 12 Gray (Mass.) 491 314 
 
 Cookendorfer v. Preston, 4 How. 317 13, 14, 25 
 
 Cooper V. Berry, 21 Ga. 526 199 
 
 V. Kane, 19 Wend. 386 40, 65, 84, 110, 164, 167, 210, 240 
 
 V. Purvis, 1 Jones (N. C.) 141 41,82,83,84,162,318 
 
 Cope V. Dodd, 13 Penn. St. 38 93,104,120,134,210 
 
 Copeland v. Gorman, 19 Tex. 253 86 
 
 Corbin, Executor of, v. Sergent, 9 N. Y. S. C. 107 202 
 
 V. Flack, 19 Ind. 459 86 
 
 V. Sistrunk, 19 Ala. 203 86 
 
 Cortelyou v. Van Brandt, 2 Johns. 357 43, 55 
 
 Corwin v. Patch, 4 Cal. 204 41, 82, 83, 84, 163 
 
 Corwith V. Culver, 69 111. 502 199 
 
 Cottrell V. Conklin, 4 Duer 45 205 
 
 Courtinay 1). Fuller, 65 Me. 156 87 
 
 Cousins V. Westcott, 15 la. 253 203 
 
 Cowles V. Garrett, 30 Ala. 341 175,310 
 
 Cox V. Charleston &c. Insurance Co., 3 Rich. 331 248 
 
 V. Peterson, 80 Ala. 608 81, 261 
 
 Coxe V. Heisley, 19 Penn. St. 243 85, 95, 104, 105, 110, 113, 234, 239, 245 
 
 Craig V. Sibbett, 15 Penn. St. 238 86 
 
 Crane v. Elizabeth Association, 29 N. J. L. 302 201,202 
 
 Cranwell v. Fanny Fosdick, 15 La. Ann. 436 47, 106, 181 
 
 Crippin v. Kice, 1 Hills 184 147 
 
 Crocker v. Getchett, 28 Me. 392 204 
 
 Croker r. People's Insurance Company 290,291 
 
 Crosby v. Fitch, 12 Conn. 410 244, 247,277 
 
 V. Hetherington, 4 M. & G. 933 11 
 
 V. Hetherington, 5 Scott N. R. 637 12 
 
 iJ.Wyatt. 23 Me. 156 66,171,194 
 
 Cross V. Eglin, 2 B. & Ad 267 
 
XX TABLE OF CASES CITED. 
 
 Paoe 
 
 Croucher v. Wilde, 98 Mass. 322 188, 205, 206 
 
 Cummings v. Putnam, 19 N. H. 569 87, 89 
 
 Cunningham v. Fonblanque, 6 C. & P. 44 147, 172 
 
 Currie v. Smith, 4 Leg. Obs. 343 135, 164, 266 
 
 Curtis V. Brewer, 17 Pick. 513 308 
 
 Cuthbert v. Gumming, 10 Exch. 809, (affirmed, 11 Exch. 405) 127, 219, 310 
 
 CutUn V. Smith, 24 Vt. 85 271 
 
 Cutter D. Howe, 122 Mass. 541 215 
 
 V. Powell, 6 T. E. 320 92 
 
 Da Costal). Edwards, 4 Camp. 143 310 
 
 Dadd 1). Farlow, 11 Allen 426 145 
 
 Daggett V. Snowden, 2 Black 225 66 
 
 Dalbyy. Hirst, 1 B. & B. 224 28,43,61,126,127 
 
 Dale t). Humfrey, E. B. & E. 1004 , 274 
 
 Dalton V. Daniels, 2 Hilt. 472 52, 84, 94, 110, 126, 135, 164, 167, 171, 184, 257 
 
 Dana v. Pieldler, 1 E. D. S. (N". Y.) 463 51,66,126,198,311 
 
 , V. Kemble, 19 Pick. (Mass.) 112 : 172 
 
 Daniels v. Hudson Eiver Insurance Company, 12 Cush, 416..187, 250, 266, 289 
 
 Dans -v. Wain, 71 Penn. St. 69 42 
 
 Davis V. Fox, 59 Mo. 125 86 
 
 V. Galloupe, 111 Mass. 121 85,95,112 
 
 V. Luster, 64 Mo. 43 86 
 
 ■V. New Brig, Gill U. S. 486 23, 64, 158, 191 
 
 V. Stern, 15 La. An. 176 199 
 
 Dawson v. Kettle, 4 Hill 107 59, 168, 184 
 
 Day V. Savadge, Hobart's Rep. 85 11 
 
 Dean v. Swoop, 2 Binn. 72 134 
 
 of Ely D. Warren, 2 Atk. 189 31 
 
 De Forest v. Fulton Insurance Company, 1 Hall. 84 171, 173, 174, 250 
 
 Delaplanev. Crenshaw, 15 Gratt. 457 144,179,318 
 
 De La Vega v. Vianna, 1 Br. & Ad. 284 91 
 
 Demi v. Bossier, 1 Penn. 224 50 
 
 Den V. Hope Insurance Company, 1 Hall, 166 289 
 
 Den ■!). McMurtrie, 15 N. J. L. 276 311 
 
 Denn v. Spray, IT. R. 466 34 
 
 Dentil. Steamship Company, 49 N. Y. 320 91,311 
 
 Desha ^. Holland, 12 Ala. 513 120,245 
 
 Dessau v. Bourne, 1 McAll, 20 202 
 
 Detwiler D. Green, 1 West Va. 109 138 
 
 Devonshire v. Niell, 2 L. R. Ir. 132 198 
 
 Dewees •«. Lockhart. 1 Tex. 535 96,105,298,300,304 
 
 De Wolf V. Crahdall, 1 Sweeny, 556 41 
 
 De Wolfe v. Johnson, 10 Wheat. 367 91 
 
TABLE OF CASES CITED. XXI 
 
 Page 
 
 Dickinson v. G-3.y, 7 Allen, 9 67,95,110,113,235 
 
 Dickinson Co. v. Insurance Company, 41 Dana, 286 270 
 
 V. Water Commissioners, 2 Hun. 615 311 
 
 Dictator-!). Heath, 56 Penn. St. 290 200 
 
 Dieffendorf t). Jones, 5 Binn. (Penn.) 289 48 
 
 DiflFendorffer v. Jones, 5 Binn. 289 50 
 
 Dingle v. Hare, 7 C. B. N. S. 145 168 
 
 Dixon V. Clayville, 44 Md. 573 :.. 199 
 
 v. Cook, 47 Miss. 220 87 
 
 V. Dunham, 13 111. 324 40, 63, 65, 84, 110, 163, 167, 240 
 
 Dobson V. Sotheby, 1 Mac. & M. 90 295 
 
 Dodd V. Farlow, 11 Allen 426 67, 84, 113, 236,302 
 
 Dodge D. Favor, 15 Gray 82 122, 209,268 
 
 Doe V. Benson, 4 B. & Aid. 588 74, 131 
 
 t'. Hiscocks, 7 M. & W. 367 198 
 
 V. Lea, 11 East 312 74,85, 131,132 
 
 D. Roe, 20 Ga. 689 , 202 
 
 i). Stanion, 1 M. & W. 695 
 
 Donnell v. Columbian Insurance Company, 2 Sumn. 366 32, 94, 107, 126 
 
 Dorsey v. Eagle, 7 H. & J. 321 48 
 
 Dow-y. Whitten, 8 Wend. 160 311 
 
 Doyle V. Estornet, 13 La. An. 318 199 
 
 Drake i). Goree, 22 Ala. 409 91,175,310 
 
 u. Hudson, 7 H. & J. 399 122, 148 
 
 Draper v. Hudson River Insurance Company, 17 N. Y. 424 289 
 
 Drew V. Chesapeake, 2 Dougl. 33 , 246 
 
 Drummond v. Attorney General, 2 H. & L. Cas. 837 172 
 
 Dudley -v. Vase, 114 Mass. 34 311 
 
 Duke of Beaufort v. Smith, 4 Exch. 450 18 
 
 St. Albans v. Shore, 1 H. Bl. 274 193 
 
 Duguid V. Edwards, 50 Barb. 62 28, 66, 79, 104, 114, 118,126, 
 
 156, 162, ,210, 257, 298, 299, 304 
 
 Duncan v. Green, 43 la. 679 290 
 
 «. Hill, L. R. 6 Exchq. 26 125 
 
 ■u. Sun Insurance Company, 6 Wend. 488 29& 
 
 Dunham v. Dey, 13 Johns. 40 26, 99, 105, 138, 143, 181, 1S2, 303, 317 
 
 V. Gannett, 124 Mass. 151 198 
 
 -y. Gould, 13 Johns. 367 144,820 
 
 Dwight V. Boston, 12 Allen 316 105, 181,302 
 
 V. Whitney, 15 Pick. 179 122, 124, 149, 150, 281 
 
 Dykers v. Allen, 7 Hill 497 135 
 
 E. 
 
 Eagar o. Atlas Insurance Company, 14 Pick. 141 43,58,96,100,101, 
 
 102, 112, 226, 302, 304, 316 
 East Haven v. Hemingway, 7 Conn. 186 213 
 
XXll TALE OF CASES CITED. 
 
 Page 
 
 Eaton V. Emerson, 14 Me. 835 204 
 
 V. Pickersgill, 55 N. Y. 310 180 
 
 V. Smith, 20 Pick. 150 40, 91, 118, 167, 183, 184 
 
 Eaves v. People's Savings Bank, 27 Conn. 228, 281 
 
 Eden v. India E. Company, 1 W. Bl. 299 128 
 
 Edie V. East India Company, 1 Wm. Black, 298 7, 12, 96, 115, 298, 304 
 
 Edredge v. Smith, 13 Allen, 140 177 
 
 Edwards v. Bates, 7 M. & G. 600, 611 88 
 
 II. Goldsmith, 16 Penn. St. 43 208 
 
 Ehle V. Chettenango Bank, 24 N. Y. 548 264, 310 
 
 Eldridge v. Smith, 13 Allen, 140 112, 310 
 
 Elliott V. Connell, 13 Mill. 91 199 
 
 V. Hamilton Insurance Company, 13 Gray, 139 292 
 
 V. Secor, 60 Mo. 163 311 
 
 Ellis -y. Crawford, 39 Cal. 523 90,198 
 
 Elton V. Larkins, 8 Bing. 198 310 
 
 Elwood V. Bullock, 6 Q. B. 383 27 
 
 Ely I). Adams, 19 John. (N. Y.) 813, 166 
 
 Emerson v. Taylor, 9 Me. 48 213 
 
 'Emery V. Dunhar, 1 Daly 408 94, 185, 164 
 
 V. Webster, 42 Me. 204 203 
 
 Emmet v. Dewkirst, 21 L. J. Ch. 497 '. 88 
 
 Emmons u. Overton, 18 B. Mon. 643 205 
 
 Eneas -!). Hoops, 42 N. Y. (S. Ct.) 517 311 
 
 Ensworth v. New York Life Insurance Company, 16 Am. L. R. 332 26 
 
 Errico v. Brand,.9 Hun. 654 198 
 
 Erskine v. Murray, 2 Ld. Raymond 1542 7 
 
 Erwini;. Saunders, 1 Cow. 249 39,203 
 
 Evans v. Myers, 2 Penn. St. 114 25,95, 144 
 
 V. Pratt, 3 M. & G. 759 180, 193 
 
 Evansville, &c.. Railroad Company v. Meeds, 11 Ind. 273 265 
 
 Evans ^. Wain, 71 Penn. St. 69 96,112,218 
 
 Ewing V. Dunbar, 1 Daly (N. Y. C. P.) 408 316 
 
 Exchange Bank v. Cookman, 1 West Va. 69 138 
 
 Eyre v. Marine Insurance Company, 5 W. & S. 116 59, 110, 174, 210 
 
 P. 
 
 Fabbri v. Mercantile Insurance Company, 6 Lans. 446 251, 289, 310 
 
 Falbri v. Insurance Company, 55 N. Y. 133 310 
 
 Falkner v. Earle, 3 B. & S. 360 311 
 
 Fariell v. Gaskoin, 7 Exch. 273 75, 154 
 
 FarlowD. Ellis, 15 Gray, 229 122*150 
 
 Farmers' Bank v.Erie Railroad Company, 79 N. Y. 188 110, 185, 311 
 
 Farmers' &c. Bank 1;. Logan, 84 N. Y. 568 82,110,118,162,318 
 
 ■u. Sprague, 52 N. Y. 605 85,257 
 
 Farmers' Bank r. Winfield, 24 Wend. 419 203 
 
TABLE OF CASES CITED. XXUl 
 
 Page 
 
 Farnsworth v. Chase, 19 N. H. 534 108, 110, 168 
 
 i;. Hemmer, 1 Allen, 494 96 
 
 Farrar-v. Beswick, 1 M. & R. 527 172 
 
 V. Stackpole, 6 Me. 154 90,310 
 
 Farrell v. Bean, 10 Md. 217... 199' 
 
 Fawcette'!). Lowther, 2 Ves. 300 24 
 
 Fawkes v. Lamb, 31 L. J. Q. B. 98 81, 191, 253, 267 
 
 Fay V. Blackstone, 31 111. 538 200 
 
 Fay v. Strawn, 32 111. 295 41,82,83,84 
 
 Featherstone d. Wilson, 4 Ark. 154 204 
 
 Feller 1). Green, 26 Mich. 70 86 
 
 Fellows V. New York, 24 N. Y. S. C. 249 181 
 
 Fenwick v. Ratcliffe, 6 T. B. Mon. 154 200 
 
 Ferguson v. Sutphin, 8 111.547 86 
 
 Field V. Lelean, 6 H. & N. 627 :..79, 112,127,191,232 
 
 Fields I). Munn, 42 Vt. 61 87 
 
 Field V. Stinson, 1 Cold. 40 204 
 
 Finley v. Lycoming Insurance Company, 31 Penn. St. 311 290 
 
 First National Bank i). Graham, 79 Penn. St. 106 232 
 
 V. Insurance Company of North America, 50 N. Y. 
 
 45 291 
 
 Firth V. Barker, 2 Johns. 327 94 
 
 Fisher v. Sargent, 10 Cush. 250 96 
 
 Fitch V. Archibald, 29 N. J. L. 160 203 
 
 V. Carpenter, 43 Barb. 50 91, 173, 175, 310 
 
 Fitchburgh Kailroad Company u. Freeman, 12 Gray 401 215 
 
 Fitz V. Comey, 118 Mass. 100 199 
 
 Flanders v. Fay, 46 Vt. 316 88, 200 
 
 Fleet V. Murton, 7 L. E. Q. B. 126 112, 153,273 
 
 Fletcher v. Gillespie, 3 Bing. 635 88 
 
 Flurean v. Thornhill, 2 W. & Bl. 1078 287 
 
 Flynn -y. McKeon, 6 Duer 203 201 
 
 V. Murphy, 2 E. D. S. 378 134, 196, 303 
 
 Fogle V. Lycoming &c. Insurance Company, 3 Grant 77 278 
 
 Foley V. Bell, 6 La. An. 760 156, 272 
 
 V. Mason, 6 Md. 37 64, 68, 114, 158 
 
 Ford V. Ford, 6 Hare 490, 491 81 
 
 V. Smith, 25 Ga. 675 200 
 
 V. Tirrell, 9 Gray 401 46, 92, 197, 217 
 
 V. Yates, 2 Scott N. R. 654 79 
 
 Forsteru. McGraw, 64 Penn. St. 464 87 
 
 Forrester, The, Newb. (U. S.) 81 27, 180 
 
 Foster v. Allanson, 2 T. E. 479 88 
 
 V. Essex Bank, 17 Mass. 479 ^ 232 
 
 V. Insurance Company, 2 E. & B. 48 112, 127, 233, 266, 289 
 
 V. Jolly, 1 C. M. & E. 707 86 
 
 I). Robinson, 2 Hill 354 48,110,171,240 
 
XXIV TABLE OF CASES CITED. 
 
 Pagk 
 
 Fowler v. JEtna, Insurance Company, 7 Wend. 270 290, 311 
 
 i). Brantly, 14 Pet. 318 25 
 
 Fox v. Parker, 44 Barb. 541 40, 65, 68, 84, 110, 126, 156, 167, 253, 257 
 
 Foy V. Blackstone, 31 111. 528 203 
 
 u. Strawn, 82 111. 295 163 
 
 Foye V. Leighton, 22 N. H. 71 115, 117, 158 
 
 Franklin V. Mooney, 2 Tex. 452 % 198 
 
 Insurance Company -;;. Updegraff, 50 Penn. St. 350 288, 296 
 
 Freary D. Cook, 14 Mass. 488 145,302 
 
 Freeman-!). Loder, 11 Ad. & El. 597 106 
 
 French 1). Hayes, 43 N. H. 30 203 
 
 Frith V. Barker, 2 John. 335 79, 85, 96, 113, 135, 164, 166, 298, 302, 304, 316 
 
 Fullertoni;. Eundlett, 27 Me. 31 87 
 
 Fulton Insurance Company v. Milner, 23 Ala. 420 251, 288, 301, 316 
 
 Furley t). Wood, 1 Esp. 198 74,131 
 
 Furness,-!). Hone, 8 Wend. 247 57,102,183 
 
 G. 
 
 Gabay ■». Lloyd, 3 B. & C. 793 57,58,59,129,247,284,285 
 
 Gadts V. Eose, 17 C. B. 229 112, 127 
 
 Gahagan v. Boston, &c., Eailroad Company, 1 Allen 187 122 
 
 Galena Insurance Company v. Kupper, 28 111. 332 91, 175 
 
 Gallatin ^. Bradford, 1 Bibb. 209 99,317 
 
 Galloway v. Hughes, 1 Bail. 553 57, 183 
 
 Gallup V. Lederer, 1 Hun. 282 118, 141 
 
 Gansoni). Madigan, 15 Wis. 144 91,173,176,310 
 
 Gard i;. Callard, 6 M. & S. 69 27 
 
 Garey D. Meagher, 33 Ala. 630 119,121 
 
 Garten v. Chandler, 2 Bibb. 246 204 
 
 Garwood v. Garwood, 29 Cal. 514. 203 
 
 Geary v. Meagher, 33 Ala. 630 147, 148, 186 
 
 Gehagan v. Boston and Lowell Eailroad Company, 1 Allen 187 246 
 
 General Steam Navigation Company v. Morrison, 13 C. B. 581 12 
 
 George v. Bartlett, 22 N. H. 496 41,82,83,84,162,318 
 
 V. Haverhill, 110 Mass. 506 214 
 
 V. Joy, 19 N. H. 544 90,311 
 
 Gibbs V. Flight, 3 C. B. 581 27 
 
 Gibson v. Crick, 1 H. & C. 42 256 
 
 V. Culver, 17 Wend. 307 58,94,97,102,135,166, 
 
 171, 247, 256, 281, 305, 316, 319 
 
 V. Small, 4 H. of L. Cas. 398 65,296 
 
 V. Young, 2 Moo. 224 173 
 
 Gilbert v. Duncan, 29 N. J. L. 133 87 
 
 Giles i). Jones, 11 Exchq. 393 321 
 
 Gilman v. Eiopelle, 18 Mich. 145 177 
 
 Girard Bank i;. Gomley, 2 Miles 405 205 
 
 Insurance Company v. Stephenson, 1 Wright 198. 294 
 
TABLE OF CASES CITED. XXV 
 
 Paqh 
 
 Oiven v. Charron, 15 Md. 502 196, 270 
 
 Glass Company -y. Morey, 108 Mass. 570 96 
 
 Gleason v. Walsh, 43 Me. 397 52 
 
 Glendale Woolen Company u. Protection Insurance Company, 21 Conn. 
 
 19 85, 113, 169, 288, 291 
 
 Goblet V. Beechy, 3 Sim. 24 41, 104 
 
 Goddard v. Bulow, 1 N. & M. (S. C.) 45 57, 183 
 
 Godts V. Rose, 17 C. B. 229 189,233 
 
 Goodall V. New England Insurance Company, 25 N. H. 169 186 
 
 Goodard v. Hill, 33 Me. 582 205 
 
 Goodfellow V. Meegan, 32 Mo. 280 215 
 
 Goodnow V. Parsons, 36 N. 46 52, 66, 122, 127, 149, 
 
 150, 157, 162, 240, 279, 314 
 
 Goodyear i;. Ogden, 4 Hill 104 168,184 
 
 Gordon v. Little, 8 S. & R. 535 82, 99, 102, 171, 174, 
 
 176, 182, 185, 300, 316, 319 
 
 Gorrissen v. Perrin, 2 C. B. N. S. 681 173, 192, 242, 311 
 
 Goss?). Lord Nugent, 5 B. & Ad. 64 81, 87 
 
 Gossler ^). Eagle Sugar Refinery, 103 Mass. 331... 310 
 
 Gould D. Lee, 55 Penn. St. 99 203 
 
 V. Oliver, 2 Scott 241 244 
 
 Govenor ■«. Withers, 5 Gratt. 24 137,301 
 
 Graham v. Hamilton, 5 Ired L. 428 198 
 
 Grant -y. Maddox, 15 M. & W. 737 51,91,130,173,244,310 
 
 Graves V. Hendricks, 16 Haz. Pa. Reg. 344 186,271 
 
 Gray i;. Bartlett, 20 Pick. 186 213 
 
 Gray v. Harper, 1 Story, 574 310 
 
 Greaves u. Legg, 2 H. & N". 210 125,139,283,285 
 
 Green I). Disbrow, 7 Lans. 392 159 
 
 V. Farmer, 5 Burr. 2221 290 
 
 17. Moffet, 22 Mo. 529 25,144 
 
 Greene V. Tyler, 39 Penn. St. 369 303,317 
 
 Greenfield Bank v. Crafts, 2 Allen, 269 120, 147 
 
 Grifiiths v. Puleston, 13 M. & W. 358 61 
 
 Grinnell v. Western Union Telegraph Company, 113 Mass. 199 279 
 
 Grisselli). Bristow, 4 0. B. 86 125 
 
 V. Robinson, 3 Bing. N. 0. 11 130,193 
 
 Groat V. Gile, 51 N. Y. 431 82, 84, 95, 135 
 
 Groesbeck •«. Seeley, 13 Mich. 329 200 
 
 Gross V. Criss, 3 Gratt (Va.) 262 163 
 
 Gullatin'U. Bradford, 1 Bibl. 207 144 
 
 Gunther v. Atwell, 19 Md. 157 ■ 123 
 
 H. 
 
 Hackin v. Cooke, 4 T. K. 314 113 
 
 Hadkinson v. Kelly, 6 Exohq.496 125 
 
XXVI TABLE OF CASES CITED. 
 
 Page 
 
 Hagedom 1). Eeids, 3 Camp. 379 172 
 
 Haillet). Smith, 1 B. & P. 563 115,128 
 
 Haines 1). Lawrence, 4 N. Y. 845 163,164 
 
 Halbert i;. Gamer, 37 Barb. (N. Y.) 62 167 
 
 Halford ■!). Adams, 2 Duer 471 210,257,304 
 
 Halifax v. Chambers, 4 M. & W. 662 43 
 
 Hall V. Benson, 4 B. & Aid. 588 74, 125, 146, 147 
 
 V. Betty, 4 M. & Gr. 410 287 
 
 V. Davis, 36 N. H. 569 199 
 
 V. Insurance Company of North America, 58 N. Y. 292 291 
 
 V. Janson, 4 El. & Bl. 500 83, 266 
 
 Halliday v. Hart, 30 N. Y. 474 39 
 
 Hallings-y. Counard, Cro. Eliz. 517 193 
 
 Halls V. Howell, Harp. 427 119, 134, 303 
 
 Halmerson v. Cole, 1 Speers, 321 93,119, 
 
 Halsey v. Brown, 3 Day, 346 82, 99, 114, 157, 261, 277, 300, 316, 319 
 
 Hamilton v. Congers, 28 Ga. 276 199 
 
 V. Nickerson, 13 Allen, 351 93, 128, 147 
 
 Hancox v. Fishing Insurance Company, 3 Sumn. 132 288, 289 
 
 Handy v. Matthews, 38 Mo. 121 203 
 
 Hanmer v. Chace, 4 De G. J. & S. 626 149 
 
 V. Chance, llJur. N. S. 840 19 
 
 Hanson v. Stetson, 5 Pick. 506 89 
 
 Harmon v. Salmon Falls Manufacturing Company, 35 Me. 447 269 
 
 Harnor i;. Groves, 15 0. B. 667 39 
 
 Harper v. Albany Insurance Company, 17 N. Y. 194 289 
 
 V. Albany City Insurance Company, 1 Bos. 520 294,296 
 
 V. New York Insurance Company, 22 N. Y. 444 292, 296 
 
 V. Pound, 10 Ind. 32 64, 118,158 
 
 Harris u. Carson, 7 Leigh 632 ' 80,304 
 
 0. Nicholas, 5 Munf. (Va.) 483 23, 166, 171, 249,250 
 
 V. Pierce, 6 Ind. 162 205 
 
 V. Kathbun, 2 Keyes 312 311 
 
 Harti). Hammett, 18 Vt. 127 91, 167, 175,310 
 
 V. Windsor, 12 M. & W. 68 , 287 
 
 Hartford Bank v. Stedman, 3 Conn. 489 313 
 
 Insurance Company ■«. Wilcox, 57 111. 186 87 
 
 Protective Insurance Company v. Harmer, 2 Ohio St. 452... 138, 248 
 
 Hartje V. Collins, 46 Penn. St. 268 83, 109, 113,208 
 
 Hartop V. Hoare, 1 Wils. 8 12 
 
 Hartshorne v. Union Insurance Company, 26 N. Y. 172 84, 110, 210 
 
 Hartwell v. Camman, 10 N. J. Eq. 128 198, 265 
 
 Harvey v. Cady, 3 Mich. 431 84, 113 
 
 Haskins i). Warren, 115 Mass. 514 110, 112, 119, 140, 151, 215, 236, 299 
 
 Hatch V. Hyde, 14 Vt. 25 203 
 
 Haven v. Wentworth, 2 N. H. 93 23, 52, 66, 84, 114, 118, 126, 162, 171, 240 
 
 Hawes v. Lawrence, 4 N. Y. 345 95 
 
TABLE OF CASES CITED. XXVll 
 
 Page- 
 
 Hawes v. Lawrence, 3 Sandf. 193 185 
 
 Hawkes v. Salter, 4 Bing. 715 172 
 
 Hawley v. Northampton, 8 Mass. 3 311 
 
 Hayward v. Middleton, 3 McCord, 149 58, 31& 
 
 Hazzard v. New England Marine Insurance Company, 1 Sumn. 218 57 
 
 Heald v. Cooper, 8 Me. 33 58, 66, 171, 177 
 
 Hearn v. Equitable Safety Insurance Company, 3 Cliff. C. C. 328 '.... 311 
 
 Heartshorne v. Union Life Insurance Company, 36 N. Y. 172 257 
 
 Heatherly I). Record, 12 Tex. 49 , 88 
 
 Heckersher ?). Binney, 3 Woodb. & M. 333 205 
 
 Helme c. Insurance Company, 61 Penn. St. 107 210 
 
 Helps 1). Clayton, 17 C. B. N. S. 553 \ 193 
 
 Henderson v. Charnock, Peake 4 150 
 
 V. Hackney, 23 Ga. 383 '. 202 
 
 Hendrick Hudson The, 17 Law R. 93 26 
 
 Henkel v. Welsh, 41 Mich. 664 110 
 
 Henry v. Risk, I Dall. (Penn.) 265 25, 96, 181, 304 
 
 Henshaw v. Robbins, 9 Met. 83 310 
 
 Henson v. Cooper, 3 Scott N. R. 48 3^ 
 
 Herbert v. Laughluyn, Crob. Car. 492 17 
 
 Herreck v. Bean, 20 Me. 51 20* 
 
 Hetherington v. Kemp, 4 Camp. 193 172 
 
 Heyward ■!;. Middleton, 3 McC. 121 98 
 
 Hibbardt). Mills, 46 Vt. 243 86 
 
 V. People, 4 Mich. 125 29a 
 
 Hibler v. McCartney, 31 Ala. 501 81, 182, 261, 266 
 
 Hicks V. Srtllitt, 23 L. J. Ch. 571 81 
 
 Higgins V. Insurance Company, 74 N. Y. 6 198- 
 
 V. Moore, 34 N. Y. 417 94, 134, 143, 156, 164, 228, 298, 299, 302 
 
 V. United States Mail Steamship, 3 Blatchf. C. C. 282 211 
 
 Hill V. McDowell, 14 Penn. St. 175 217 
 
 V. Norvell, 3 McL. (U. S.) 583 26 
 
 V. Portland, &c., Railroad Company, 55 Me. 438 245, 303 
 
 Manufacturing Company v. Providence, &c.. Steamship Company, 
 
 125 Mass. 292 213 
 
 Hills V. Evans, 31 L. J. Ch. 4.')7 184, 26& 
 
 V. Hoitt, 18 N. H. 603 53 
 
 V. London Gaslight Company, 27 L. J. Ex. 60 41 
 
 Hilton V. Earl Granville, 5 Q. B. 701 ....23, 27 
 
 Hinckley v. Barnstable, 109 Mass. 126 214 
 
 Hine^;. Pomeroy, 39 Vt. 211 172,277 
 
 Hinkelu Welsh, 41 Mich. 664 189 
 
 Hinneman v. Rosenback, 39 N. Y. 98 203 
 
 Hinton v. Coleman, 45 Wis. 165 158 
 
 V. Locke, 5 Hill, 437 46, 84, 91, 94, 130, 164, 
 
 167, 175, 210, 217, 297, 317 
 Hitchcock V. Hunt, 28 Conn. 343 257 
 
XXVlll TABLE OF CASES CITED. 
 
 Page 
 
 Hite V. State, 9 Yerg. 357 173, 310 
 
 Hixu Gardiner, 2 Bulstr. 195 23 
 
 Hoare v. Graham, 3 Camp. 57 79, 89 
 
 Hockin v. Cooke, 4 T. E. 314 ;...131, 132, 320 
 
 Hogg -v. Berrington, 2 F. & F. 246 75 
 
 Hoginsi). Plympton, 11 Pick. 97 309 
 
 Holbrook v. Burt, 22 Pick. 546 199 
 
 Holderness v, CoUirum, 7 B. & C. 216 262 
 
 Holding V. Elliott, 5 H. & N. 117 190 
 
 V. Piggott, 7 Blng. 465 45, 49, 70, 73 
 
 Holmes v. Doane, 9 Gush. 135 ; 89 
 
 V. Johnson, 42 Penn. St. 159 42, 47, 146, 218, 303,317 
 
 V. Pettingill, 60 N. Y. 646 84, 94, 112, 135, 162, 163, 164 
 
 V. Stummel, 15 111. 412 164 
 
 Home V. Mutual Fire Insurance Company, 1 Sandf. 137 105, 298,300 
 
 Hone V. Mutual &c. Insurance Company, 2 N. Y. 235 84 
 
 Hooper u. Railroad Company, 27 Wis. 87 91 
 
 Hopkins i). Upsher, 20 Tex. 89 202,203 
 
 Horn V. Mutual Safety Insurance Company, 2 N. Y. 235 188 
 
 Horner v. Dorr, 10 Mass. 26 95, 96, 171,304 
 
 V. Watson, 79 Penn. St. 242 42, 218 
 
 Horton v. Beckman, 6 T. E. 760l, 24,300 
 
 Hoskins V. Warren, 115 Mass. 514 ... 95 
 
 Hotchkiss ■;;. Barnes, 34 Conn. 27 199 
 
 V. Artisans Bank, 42 Barb. 517 278 
 
 Houghton ■«. Emback, 4 Camp. 88 270 
 
 V. Gilbart, 7 C. & P. 701 103, 172 
 
 Hov.er t;. Tenney, 36 Iowa, 80 ; 198 
 
 Howard v. Great Western Insurance Company, 109 Mass. 384 211 
 
 V. Insurance Company, 109 Mass. 887 91 
 
 Howe V. Hardy, 106 Mass. 329 212 
 
 Howletti). Howlett, 56 Barb. 467 41 
 
 Hoxie V. Hodges, 1 Greg. 251 199 
 
 Huchins v. Hebbard, 34 N. Y. 24 89 
 
 Huckini). Cooke, 4 T. E. 314 84 
 
 Hudson ti. Clementson, 8 C. B. 218 54,190, 260 
 
 V. Ede,3 Q. B. 412 90,810 
 
 Huflman v. Hammer, 17 N. J. Eq. 269 199 
 
 liuggins V. Moore, 34 N. J. 417 297 
 
 Hughes V. Gordon, 1 Bligh. 287 73,311 
 
 Hughes V. Humphreys, 8 E. & B. 954 320 
 
 Hughes V. Sandall, 25 Tex. 162 202 
 
 Humfrey ■?). Dale, 7 E. & B. 266 112,257,263,273 
 
 Humphreyville, &c. Company v. Vermont, &c. Company, 33 Vt. 92 110 
 
 Hunt V. Carr, 3 la. 581 199 
 
 Hunt V. Otis Company, 4 Met, 464 59 
 
 Hunter 11. Bilyeu, 30 111. 228..., 199 
 
TABLE OF CASES CITED. XXIX 
 
 Page: 
 
 Hursh V. North, 40 Penn. St. 241 52, 65, 84, 114, 118, 126, 161, 239, 240, 278 
 
 Huse V. McQuade, 52 Mo. 388 199 
 
 Hussy i;. Jacob, Ld. Raym. 88 12. 
 
 Hutch V. Carrington, 5 C. & P. 471 129, 190 
 
 Hutchinson v. Bowker, 5 M. & W. 585, 542 59, 60, 128, 156, 253 
 
 V. Tatham, 8 C. P. 482 '. 112,272 
 
 Hutton V. Warren, 1 M. & W. 466 45, 48, 49, 50, 51, 62, 70, 71, 72, 106 
 
 Hyatt V. Simpson, 8 Ind. 156 204 
 
 I. 
 
 Iddings V. Nagle, 2 W. & S. 22 50' 
 
 Ide V. Ide, 5 Mass. 500 311 
 
 Ingersoll c. Truebody, 40 Cal. 603 87 
 
 Inglebright v. Hammond, 19 Ohio 837 52, 65, 84, 104, 114, 
 
 126, 162, 171, 209, 240 
 
 Inslee c. Jones, Bright (Penn.) 76 219 
 
 Insurance Company v. Wright, 1 Wall. 456 85, 113, 264, 290, 31Q 
 
 Isabella, The, 2 Rob. Adm.241 89 
 
 Isham r. Fox, 7 Ohio St. 317 65, 300, 301,316 
 
 J. 
 
 Jackson d. Belling, 22 La. An. 377 85 
 
 -v. Jackson, 7 Ala. 791 86 
 
 Jaurnu v. Borden, Park. Ins. 245 310 
 
 Jelison v. Lee, 3 W. & M. 368 186 
 
 Jenkins v. Harvey, 1 Cr. M. & R. 877 ■ 18 
 
 !). Harvey, 1 Gale 23 18 
 
 Jenny Lind Company v. Bower, 11 Cal. 194 91, 310, 264 
 
 Jewell i;. Carter, 25 Ala. 498 119,149 
 
 Johnson i). De Peyster, 50 N. Y. 506 257 
 
 V. Insurance Company, 39 Wis. 87 91,310 
 
 Johnston 1). McCrary, 5 Jones 369 201,202 
 
 V. Usborne, 11 Ad. & El. 557 106, 129, 173, 190, 275,310 
 
 Jolly i;. Young, 1 Esp. 186 91,173,310 
 
 Jones V. Bradner, 10 Barb. 193 85, 164, 316 
 
 V. Clark, 2 H. & B. 725 190,241 
 
 V. Fales, 4 Mass. 245 99,316 
 
 V. Palmer, 11 Paige Ch. 650 199 
 
 V. Wagner, 66 Penn. St. 429 95, 96, 104 
 
 Jordan u. Meredith, 3 Yeates 318 217,317 
 
 Journee «. Bourdieu, Park. Ins 173 
 
 Joyce V. Leighton, 22 N. H. 71 52 
 
 Ju'ggomohun Chore v. Manickhund, 7 Moore Ind. App. 263 118, 124, 126- 
 
XXX TABLE OP CASES CITED. 
 
 K. 
 
 Page 
 
 Kain v. Old, 2 Br. C. 634 86 
 
 Kaines ■«. Knightly, Sken. 54 79,89 
 
 Kansas Pacific Railroad v. Roberson, 3 Gal. 142 •• 197 
 
 Kearney v. King, 2 B. & Aid. 301 75, 132 
 
 Keiron v. Johnson, 1 Stark. 109 172 
 
 Kell V. Charmer, 23 Beav. 195 90 
 
 Keller i;. Webb, 125 Mass. 88 111,198,309 
 
 Kelly V. Taylor, 23 Cal. 11 87 
 
 Kempson v. Boyle, 3 H. & C. 673 79 
 
 Kenchin v. Knight, 1 Wils. 253 32 
 
 Kendall v. Russell, 5 Dana 501 28, 58, 66, 99, 100, 102, 103, 
 
 104, 114, 118, 126, 143, 162, 317, 319 
 
 Kennebeok Bank v. Hammett, 9 Mass. 159 , 57, 99, 316 
 
 ■«. Page, 9 Mass. 155 57,99,306,316 
 
 Kenyon v. Nichols, 1 R. 1. 106 17 
 
 Kern v. Van Pheel, 7 Minn. 426 204 
 
 Kershaw V. Wright, 115 Mass. 861 124,151 
 
 JKidder D. Dunstable, 11 Gush. 342 214 
 
 Kidson v. Empire Marine Insurance Gompany, 1 L. R. G. P. 535. ..117, 173, 194 
 
 Kidston v. Insurance Gompany, L. R. 1 G. B. 535 810 
 
 Kieth V. Kerr, 17 Ind. 284 201 
 
 Kilgore v. Bulkley, 14 Gonn. 862 114, 277, 306 
 
 King V. Clerk, 1 Salk. 349 11 
 
 The, V. Bayshaw, Gro. Gar. 347 11 
 
 Kingston v. Knibs, 1 Camp. 508 189 
 
 Kinglake v. Beviss, 18 L. J. G. P. 628 42, 266 
 
 Kinne v. Ford, 52 Barb. 194 2V8 
 
 Kinney v. Kiernan, 49 N. Y. 164 86 
 
 Kirchner 11. Venus, 12 Moore P. C. C. 361 115, 127, 134,266 
 
 Kirk V. Hartman, 68 Penn. St. 97 39 
 
 Kirkendall t). Mitchell, 8 McLean 144 43,177 
 
 Kirkpatrick v. Brown, 59 Ga. 450 198, 311 
 
 Knapp V. Hyde, 60 Barb. 80.. 86 
 
 Knight V. Knight, 28 Ga. 165 200 
 
 V. New England Worsted Company, 2 Gush. 271 203 
 
 Knowles v. Dow, 2 N. H. 387 17, 117, 120, 149 
 
 Knox ■!). Artman, 3 Rich. 283... 40,136 
 
 V. Rives, 14 Ala. 249 124 
 
 Koons V. Miller, 8 W. & S. 271 96, 210 
 
 Koop V. Handy, 41 Barb. 454 86 
 
 Kough V. McNitt, 6 Minn. 518 89 
 
 Kruger v. Wilcox, Ambler 252 13 
 
 Kuhtmani;. Brown, 4 Rich. 479 271, 281,315 
 
 Kufh V. West, 6 E. & P. 54 172 
 
TABLE OF CASES CITED. XXXI 
 
 L. 
 
 Page 
 
 Lace's Case, 4 C. H. Rec. 158 84 
 
 Lacey v. Lofton, 26 Ind. 324 205 
 
 Lamb v. Klauss, 30 Wis. 84...! 90, 310 
 
 V. Parkman, 1 Spr. C. C. 343 211 
 
 Lampoon v. Gazzam, 6 Port. 123 65, 162, 171 
 
 Lancaster County National Bank v. Smith, 62 Penn. St. 47 232 
 
 Lane v. Bailey, 47 Barb. 395 94, 112, 135, 164, 215 
 
 V. Maine Life Insurance Company, 12 Me. 44 289 
 
 Lang V. Gale, 1 M. & S. 11 80 
 
 Langdon v. Equitable Insurance Company, 1 Hall, 226 296 
 
 Lapham v. Atlantic Insurance Company, 24 Pick. 1 173, 250, 251 
 
 V. Atlas Insurance Company 252 
 
 Lapish V. Bangor Bank, 8 Me. 85 213 
 
 Larg V. Johnson, 24 N. H. 302 204 
 
 Larkin v. Burk, 11 Ohio St. 561 271 
 
 Larrabee v. Fairbanks, 24 Me. 363 86 
 
 Latimer v. Alexander, 14 Ga. 259 64, 105, 134, 300 
 
 Lavie v. Phillips, 3 Burr. 1776 11 
 
 Lawrence ('. McGregor, 37 Penn. St. 240 192 
 
 V. Gallagher, 10 J. & S. 309 82, 112, 162 
 
 V. Maxwell, 53 N. Y. 21 79, 90, 94, 135, 164, 309 
 
 r;. McGregor, 5 Ham. (Ohio) 311 23,56,58,66,182 
 
 V. Stonirigton Bank, 6 Conn. 621 58, 247, 277 
 
 Lazarre v. Jaques, 15 La. An. 598 86 
 
 Leach v. Beardslee, 22 Conn. 404 40, 65, 84, 110, 164, 167, 169, 184, 240, 271 
 
 V. Perkins, 17 Me. 462 105, 197, 301, 802, 303, 316, 318 
 
 Leame v. Bray, 3 East. 593 12 
 
 Learson ■!;. Hay ward, 1 Spears. 249 159 
 
 Leathe v. Bullard, 8 Gray, 545 201, 203 
 
 Leavitt v. Simes, 3 N. H. 14 57, 306 
 
 Lebanon v. Heath, 47 N. H. 353 110, 161, 171, 209, 234, 240 
 
 Le case de Tanistry, Davys^S B. 35 29 
 
 Ledden v. Myers, 20 How. 506 199 
 
 Lee V. Kilburn, ^Gray, 594 139 
 
 V. Satter, H. & D.'s Supp. 163 46, 84, 167 
 
 Leeds v. Fursman, 17 La. An. 32 201, 203 
 
 Leidman v. Shultz, 14 C. B. 287 311 
 
 LeggettD. Insurance Company, 10 Rich. 292 288 
 
 Lehman v. Marshall, 47 Ala. 362 
 
 Leidemanu v. Schultz, 14 C. B. 38 139 
 
 Leigh V. Hewitt, 4 East. 154 43, 126, 127 
 
 V. Mobile, &c. Railroad Company, 58 Ala. 165 151, 158 
 
 Leonard v. Peeples, 30 Ga. 61 138 
 
 Lethulier's Case, 2 Salk. 443 51,55, 114, 129, 173, 190, 209 
 
 Leppoe V. National Union Bank, 32 Md. 136 86 
 
XXXll TABLE OF CASES CITED. 
 
 Page 
 
 Leslie v. Be le Torre, 12 East. 583 89 
 
 Leuckhart v. Cooper, 3 Scott, 521 140 
 
 Lewis V. Marshall, 13 Law J. C. P. 193....60, 140, 143, 173, 186, 191, 210, 223, 253 
 
 V. Smith, 107 Mass. 334 214 
 
 V. Thatcher, 15 Mass. 433 23, 63, 118, 158 
 
 Lichenstein v. Baltic Fire Insurance Company, 45 111. 301 289 
 
 Lichtenstein v Boston & Providence Railroad Company, 11 Cush. 70 214 
 
 Lincoln, &c. Bank v. Page, 9 Mass. 155 307 
 
 Lindley D. Lacp.y„17 C. B. N. S. 558 85, 87 
 
 Linsley v. Lovely, 26 Vt. 123 167, 184 
 
 Litchfield v. Falconer, 2 Ala. 280 86 
 
 Littlefield v. Blaxwell, 31 Me. 134 ..16, 17. 145 
 
 Livingston v. Maryland Insurance Company, 7 Cranch. 506 122, 148, 288 
 
 V. Ten Broeck, 16 Johns. 14 55 
 
 V. Tyler, 14 Conn. 493 314 
 
 Locke V. Eowell, 47 N. H. 46 176, 310 
 
 Lockett V. Nickhn, 2 Exch. 93 253 
 
 Lodwicks V. Ohio Insurance Company, 5 Ham. (Ohio), 436 23, 52, 65, 
 
 114, 126, 162, 171 
 
 Lombardo v. Case, 45 Barb. 45 85, 94, 109, 112, 135, 137, 264, 265 
 
 London's Case, City of, 8 Eep. 126 11 
 
 Long V. Davis, 18 Ala. 801 200 
 
 Loosey -v. Williams, 1 M. & M. 129 172 
 
 Loper V. Dibble, 1 Ld. Raymond, 175 7 
 
 Lord Falmouth v. George, 5 Bing. 286 24 
 
 Loring v. Gurney, 5 Pick. 16 40, 57, 58, 65, 96, 110, 
 
 167, 194, 209, 240, 279, 305 
 
 Lovelandi). Burke, 120 Mass. 139 211 
 
 Lowe'!). Lehman, 15 Ohio St. 179 46, 92, 217,310 
 
 Lowry v. Adams, 22 Vt. 160 203 
 
 V. Russell, 8 Pick. 360 110, 168, 207 
 
 Lucas D. Bristow, E. B. & E. 907 112, 127, 220,241 
 
 V. Groning, 7 Taunt. 164. 173 
 
 Luce y. Dorchester Insurance Company, 105 Ma^. 297 85 
 
 V. Insurance Company, 105 Mass. 297. 113 
 
 Luffburrow v. Henderson, 30 Ga. 482. 200 
 
 Lufkin V. Haskell, 3 Pick. 356 16 
 
 Lull V. Cass, 43 N. H. 62 86,199 
 
 Lupkin'W. Haskell, 3 Pick. 356 145 
 
 Lyons v. De Pass, 3 P. & D. 177 11 
 
 M. 
 
 McCIanahan v. Hinds, 2 Strobh. 122 204 
 
 McClure v. Cox, 32 Ala. 617 81, 182,184,261,266 
 
 McCready v. Wright, 5 Duer. 571 210 
 
 McDonalds. Stewart, 18 La. An. 90 88 200 
 
TABLE OF CASES CITED. XXXIU 
 
 Paqb 
 
 McGregor v. Insurance Company, 1 Wash. C. C. 39 19, 110, 210, 211 
 
 McGuigin V. Ochiglevich, 18 La. An. 92 86 
 
 McKinstry v. Eunk, 12 N. J. Eq. 60 89 
 
 McLean i;. Clark, 47 Ga. 24 86 
 
 McMasters v. Railroad Company, 69 Penn. St. 374 42, 90, 110, 134, 
 
 174, 188, 210, 216, 218 
 
 McNair v. Laler, 6 Minn. 435 199 
 
 MacKenzie v. Dunlop, 3 Macq. H. L. Cas. 22 92, 117, 124, 173, 253, 310 
 
 V. Schmidt, 22 Am. Law Reg. 448 210 
 
 MacKintosh v. Marshall, 11 Moll. 116 125 
 
 Macomber v. Howard Insurance Company, 7 Gray 207 112 
 
 V. Parker, 13 Pick. 175 23, 41, 82, 83, 84, 95, 102, 112, 162, 317 
 
 Mary v. Whaling Insurance Company, 9 Met. 354 59, 130, 289, 309 
 
 Magee D. Atkinson, 2 M. & W. 442 132,229 
 
 Magilli). Brown, Bright (Penn.) 346,365 13, 14 
 
 Magistrates of Dunbar v. Duchess of Roxburgh, 3 01. & F. 335 34 
 
 Main v. Eage, 1 E. D. S. 619 84, 95, 135 
 
 Maitland tJ. Insurance Company, 3 Rich. 331 245 
 
 Mallan v. May, 13 M. & W. 517 80, 129, 192, 199 
 
 Mallory v. Leach, 35 Vt. 156 199 
 
 Malone v. Dougherty, 79 Penn. St. 46 , 87 
 
 Malpas V. London and Southwestern Railroad Company, 35 L. J. C. P. 
 
 166 85 
 
 Mangum v. Ball, 43 Miss. 288... 85, 113 
 
 V. Farrington, 1 Daly 236 84, 167, 210, 236 
 
 Many i;. Beekman Iron Company, 9 Paige Ch. 188 56 
 
 Marc V. Kupfer, 34 111.287 85, 113,310 
 
 Markham v. Jaudon, 41 N. Y. 235 85, 94, 128, 163, 167, 316 
 
 Marks D.Cass County Mill, 43 la. 146 85,113 
 
 V. Elevator Company, 43 la. 337 290 
 
 Marquis of Salisbury v. Gladstone, 9 H. of L. Cases 692 24, 30 
 
 Marray u Hatch, 6 Mass. 477 249 
 
 Marshall v. Baker, 19 Me. 402 89, 200 
 
 V. Gridley, 46 111. 247 202 
 
 V. Lynn, 6 M. & W. 116 88 
 
 V. Marshall, 12 B. Mon. 459 86 
 
 Marston v. Mobile Bank, 10 Ala. 284 .^. 119 
 
 Martin v. Clarke, 8 R. J. 389 .*. 86 
 
 V. Delaware Insurance Company, 2 Wash. C. C. 254 19, 210, 247 
 
 V. Gilham, 7 A. & E. 540 43 
 
 V. Hall, 26 Mo. 386 52, 64, 115, 158, 160 
 
 V. Maynard, 16 N. H. 165 28, 66, 104, 114, 118, 126, 162 
 
 V. Union Pacific Railroad Company, 1 Wy. Ter. 143 311 
 
 V. Waddell, 18 N. J. L. 186 213 
 
 Martyn v. Clue, 18 Q. B. 661 74 
 
 Mason v. Franklin Fire Insurance Company, 12 Gill. & 3. 468 249 
 
 V. Graff, 35 Penn. St. 448 204 
 
 *3 
 
XXXIV TABLE OF CASES CITED. 
 
 Page 
 
 Mason i;. Skurry, Park Ins. 245 173,310 
 
 Master Pilots &c. of New-Castle-upon-Tyne v. Bradley, 21 L. J. Q. B. 
 
 196 ■ 18 
 
 Masters i;. Freeman, 17 Ohio St. 323 199 
 
 V. Masters, 1 .P. Wins. 424 41 
 
 Maury i;. Talmadge, 2 McLean 157 244 
 
 Maverick, The, 1 Spr. 23 180 
 
 Maxwell v. Eason, 1 S. & P. 514 209, 245 
 
 May V. Babcock, 4 Ham. 334 56 
 
 V. Buckeye Insurance Company, 25 Wis. 291 288, 290 
 
 V. Hewett, 33 Ala. 161 202 
 
 Mayor v. Butler, 1 Barb. 325 202 
 
 of Lyme Regis v. Taj'lor, 3 Lev. 160 16 
 
 Meaher v. Lufkin, 21 Tex. 383 41, 82, 83, 84, 162,318 
 
 Mears v. Waples, 3 Houst. 581 96, 134 
 
 Mechanics' Bank v. Bank of Columbia, 5 Wheat. 336 104 
 
 V. Merchants' Bank, 6 Met. 13 95 
 
 Meighan v. Bank, 25 Penn. St. 288 91 
 
 Menzies v. Lightfoot, 40 L. J. Chan. 561, 11 L. E. Eq. 459 258 
 
 V. Lightfoot, 19 W. R. 578 228 
 
 Mercantile Insurance Company v. State Insurance Company, 25 Barb. 
 
 319 82,95,135,183 
 
 Merchant Mutual Insurance Company^. Wilson, 2 Md. 217 167, 250, 251 
 
 Merchants' Bank v. State Bank, 10 Wall. 604 85,113 
 
 V. Woodruff, 6 Hill 174 195, 306 812 
 
 Meriami). Harsen, 2 Barb. Ch. 232 105, 178, 180,181 
 
 Meres v. Ansell, 3 Wil. 275 39 . 
 
 Merrett V. Brack ett, 60 Me. 524 188 
 
 Merrick v. McNully, 26 Mich. 374 90,311 
 
 Metcaf 1). Weld, 14 Gray 210 145,207 
 
 Meyer v. Dresser, 16 C. B. N. S. 644 127, 133 
 
 V. Huncke, 55 N. Y. 412 86 
 
 Meyers v. Beardsley, 30 N. J. 236 204 
 
 Middlesex, The, 21 Law. 14 180 
 
 Middleton v. Hay ward, 2 N. & McCord 9 98, 99, 102, 300, 314, 316 
 
 Mieghan v. Bank, 25 Penn. St. 288 90 
 
 Miggleton I). Barnett, 2 H. & N. 653 34 
 
 Miller d. Burke, 68 N. Y. 615 110, 185, 311 
 
 V. Fitchthorn, 31 Penn. St. 252 201 
 
 V. Fletcher, 27 Gratt. 403 199 
 
 V. Insurance Co , 1 Abb. N. C. 470 188 
 
 V. Miller, 68 Penn. St. 486 86 
 
 V. Pendleton, 8 Gray 547 214, 245, 303 
 
 V. Stevens, 100 Mass. 518 309, 310, 311 
 
 V. Tetherington, 6 H. & N. 278 47, 173, 252, 263,310 
 
 Mills V. Hallock, 2 Edw. Ch. 652 118, 120, 146, 186 
 
 V. United States Bank, 1 Wheat. 431 57, 194,306 
 
 Milvin V. Fellows, 33 N. H. 401 202 
 
TABLE OF CASES CITED. XXXV 
 
 Page 
 
 Milward v. Hilbert, 3 Q. B. 120 150, 153, 189 
 
 Minnesota Railroad Company v. Morgan, 52 Barb. 217.. .135, 164, 298, 302, 304 
 
 Minor 1). Meobanics' Bank, 1 Pet. 46 180,279 
 
 Mitchell V. Mitchell, 2 Met. (Mass.) 65 167 
 
 V. Raitt, 4 Camp. 146 191 
 
 ('. United States, 9 Pet. 712 14 
 
 V. Universal Life Insurance Company, 54 Ga. 289 199 
 
 Mixer v. Coburn, 11 Met. 559 211 
 
 McCarty v. New York and Erie Railroad Company, 30 Penn. St. 347. ..210, 216 
 
 Mobile &c. Insurance Company ij. McMillen, 27 Ala. 77 250,266 
 
 Montgomery County Bank v. Albany City Bank, 8 Barb. 396 40 
 
 V. Pickering, 116 Mass. 227 86 
 
 Moody V. Surridge, Park Ins. 245 173 
 
 Moon V. Guardians of Whitney Union, 3 Bing. N. C. 817 „. 128 
 
 Moore v. Campbell, 10 Exch. 323 88, 192 
 
 V. Davidson, 18 Ala. 209 87 
 
 V. Eason, 11 Ired L. 568 50, 148 
 
 11. Griffin, 20 Me. 350 213 
 
 V. Rush, 30 La. An. 157 86 
 
 Moran v. Prather, 23 Wall. 499 90, 113,310 
 
 More V. Kupfer, 34 111. 287 264 
 
 Morgan v. Adrian, 77 N. C. 83 199 
 
 V. Griffith, L. R. C. Exchq. 70 87 
 
 Morris v. Bowen, 52 N. H. 416 168 
 
 Morrison v. General Steam Navigation Company, 8 Exch. 733 12 
 
 V. Hart, 2 Bibb. 4 106 
 
 Moseley v. Mustin, 37 Ala. 216 202, 203 
 
 Moss V. Green, 41 Mo. 389 201 
 
 Mounsey v. Ismay, 1 H. & C. 729 27 
 
 Mousley v. Ludlam, 21 L. J. Q. B. 64 28 
 
 Moxon V. Atkins, 3 Camp. 403 129, 190 
 
 Mumford v. Hallett, 1 Johns. 439 100 
 
 Muncey v. Dennis, 1 H. & N. 216 75, 85, 113 
 
 1). Dennison, 1 Ark. 216 45 
 
 Munn V. Burch, 25 111. 35 40, 65, 114, 171, 240 
 
 V. Eage, 1 E. D. S. (N.Y.) 619 163 
 
 Munte V. Gross, 56 Penn. St. 150 86 
 
 Murlatti;. Clary, 20 Ark. 251 302 
 
 Murray v. Hatch, 6 Mass. 465 23, 91, 249, 250 
 
 Murton v. Webb 273 
 
 Mussleman 1). Stoner, 31 Penn. St. 265 89, 201,202 
 
 Mutual Safety Insurance Company v. Hone, 2 N. Y. 235 135, 163, 249 
 
 Myers v. Dresser, 16 C. B. N. S. 646 117. 146 
 
 V. Edely, 47 Barb. 263 311 
 
 V. Lathrop, 73 N. Y. 315 198 
 
 V. Perry, 1 La. Ann. 372 27, 161, 246 
 
 V. Sari, 3 L. J. Q. B. 9 173, 196, 257, 274, 276,310 
 
 V. Walker, 24 111. 133 90, 167, 310 
 
XXXVl TABLE OF CASES CITED. 
 
 Nanatuok Silk Company v. Fair, 112 Mass. 354 157, 279 
 
 Naylor ■». Mangles, 1 Esp. 110 262 
 
 Naylor v. Semmes, 4 G. & J. (Md.) 274 40, 65, 240, 274 
 
 Naylor qui tam v. Soott, 2 Ld. Eaym. 1558 28 
 
 Needham 1). Ide, 5 Pick. 510 311 
 
 Newbold v. Wright, 4 Kawle, 195 25, 144, 181, 304 
 
 Newcastle-on-Tyne v. Bradley, 2 E. & B. 428 42 
 
 N. E. Screw Company v. Bliven, 4 BlatoM. C. C. 97 279 
 
 New Jersey Zinc Company v. Boston Franklinite, 15 N. J. Eq. 418 90, 311 
 
 Newsom v. Thighen, 30 Miss. 414 86 
 
 Newton v. Jackson, 23 Ala. 535 200 
 
 New York, &c. Bank v. Gibson, 5 Duer. 574 86 
 
 New York Firemen's Insurance Company v. Ely, 2 Cow. 678 105, 138, 
 
 181, 182, 288, 296, 298, 303, 317 
 
 Neighan i;. Bank, 25 Penn.St. 288 810 
 
 Neilson v. Harford, 8 M. & W. 806 253 
 
 Neldon v. Smith, 36 N. J. L. 148 56 
 
 Nelson v. Eaton, 26 N. Y. 410 86 
 
 V. Sun, &c. Insurance Company, 71 N. Y. 453 198 
 
 Niagara Company Bank v. Baker, 15 Ohio St. 68 138 
 
 Niagara Insurance Company v. De Graff. 12 Mich. 124 291, 293 
 
 Nichols V. De Wolfe, 1 E. I. 277 52, 104 
 
 Noble V. Durell, 3 T. R. 271 34, 85, 131, 321 
 
 Noble V. Kennoway, 1 Doug. 510 114, 125, 128, 153,155 
 
 Norman V. Cole, 3 Esp. 253 86 
 
 V. Morrell, 4 Ves. 769 41 
 
 North Staffordshire Railway v. Peek, 10 H. of L. Cas. 473 193 
 
 Noyes v. Canfield, 27 Vr. 79 173, 176, 310 
 
 Nudd V. Hobbs, 17 N. H. 524 17 
 
 Nye V. United States, 22 Law R. 174 179 
 
 O. 
 
 Ober V. Carson, 62 Mo. 209 310 
 
 Ocean Insurance Company v. Palleys, 13 Pet. 157 293 
 
 O'Donnell v. Allegheny Railroad Company, 50 Penn. St. 490 137 
 
 Oelricks v. Fords, 23 How. 49 19, 134, 137, 210,308 
 
 Ogilvie V. Foljambe, 3 Mer. 53 39 
 
 Ohio V. Conson, 62 Mo. 209 156 
 
 Olivari v. Blantern, 39 Tex. 76 86 
 
 Olivers. Shoemaker, 35 Mich. 464 199 
 
 Onandago Bank v. Bates, 3 Hill 53 298 
 
 O'Neill V. Buffalo Insurance Company, 3 N. Y. 122 296 
 
 Oppenheim v. Russell, 3 B. & P. 42 262 
 
 Ordiorne ■;;. New England Insurance Company, 101 Mass. 551 112 
 
 Orth V. Sharkey, 4 Ind. 642 86 
 
 Osborne v. Sisture, 14 Conn. 366 277 
 
 V. Smith 307 
 
TABLE OP CASES CITED. XXXVll 
 
 Page 
 
 Osgood V. McConnell, 32 111. 74 85, 113 
 
 Otsego County Bank ^. Warren, 18 Barb. 290 94, 164,312 
 
 Ougier v. Jennings, 1 Camp. 503 128, 155, 189 
 
 Outwater v. Nelson, 20 Barb. 29 46, 68, 85, 94, 164, 167, 184, 216, 316 
 
 Overman v. Hoboken Bank, 30 N. J. L. 6L 56, 95,137 
 
 P. 
 
 Packard v. New Bedford, 110 Mass. 134 214 
 
 Padlock V. Fradley, 1 C. & J. 90 41 
 
 Page V. Cole, 120 Mass. 37 91,111,188 
 
 Palmer v. Kaue, 5 Wis.- 265 65, 114 
 
 Papendick v. Bridgewater, 5 El. & Bl. 166 18 
 
 Paragon The, 1 Ware, (U. S.) 322 93, 100, 120 
 
 Park V. Miller, 27 K. J. L, 338 278 
 
 V. Thomas, 21 Miss. 11 204 
 
 Parker t>. Broas, 20 La. An. 167 86 
 
 V. Ibbetson, 4 C. B. N. S. 346 43, 112, 127, 243, 253 
 
 V. Syracuse, 31 N. Y. 376 201,203 
 
 Parkin v. Kadcliffe, 1 Bos. & Pul. 282 32 
 
 Parr-i). Anderson, 6 East. 202 114,209,244 
 
 Parrott v. Thatcher, 9 Pick. 426 59, 103, 123, 148, 208, 319 
 
 Parsons v. Manufacturers' Insurance Company, 16 Gray, 463 251 
 
 V. Miller, 15 Wend. 561 55, 95, 100 
 
 Partridge v. Forsyth, 29 Ala. 200 93, 119, 120, 149 
 
 V. Insurance Company, 15 Wall. 373 290 
 
 Patch V. Insurance Company, 44 Vt'. 481 .• 91,311 
 
 Patrick v. Grant, 14 Me. 283 199 
 
 Patten v. Newell, 30 Ga. 271 203 
 
 Patterson v. Ben. Franklin Insurance Company, 33 Leg. Int. 5 104 
 
 Paul 1). Denings, 32 Md. 403 198 
 
 Paull V. Lewis, 4 Watts 402 58, 103 
 
 Paxton V. Courtney, 2 F. & F. 131 24, 140, 185 
 
 Peirce v. United States, 1 N. & H. 270 180 
 
 Peisch V. Dickson, 1 Mass. (U. S.) 11 173, 310 
 
 People's Bank v. Bogart, 16 Hun. 270 112 
 
 Peoria &c. Insurance Company v. Annapaw, 51 111. 283 288 
 
 Perkins v. Franklin Bank, 21 Pick. 483 311 
 
 V. Jordan, 35 Me. 231 40, 161, 240 
 
 V. Washington County Insurance Company, 4 Cow. (N. Y.) 645... 270 
 
 V. Young, 82 Mass. (16 Gray) 389 39, 90 
 
 Perley ^. Langley, 7 N. H. 233 17, 145 
 
 Perry v. Central &c. Kailroad Company, 5 Cald. 138 89 
 
 Peters v. Stanley, 15 L. T. N. S. 275 269 
 
 Peterson v. Grover, 20 Me. 363 199 
 
 Petty V. Gaylc, 25 Ala. 472 196 
 
 Pfiel 1). Kemper, 8 Wis. 315 147 
 
 Phoenix Insurance Company v. Taylor, 5 Minn. 492 296 
 
 Phillips V. Briard, 1 H. & N. 21, 25 L. J. Exchq. 233 260,267 
 
XXXVlll TABLE OF CASES CITED. 
 
 Page 
 
 Phillips V. Innes, 4 CI. & P. 234 130, 243 
 
 V. Preston, 5 How. 278 87, 88, 200 
 
 V. Starr, 26 la. 349 196, 269 
 
 Phyfe D. Warden, 2 Edw. Ch. 47 199 
 
 Pickering v. Eawson, 4 Taunt. 779 ; 89 
 
 Pierce v. United States, 1 N. & H. (U. S.) 270 27, 179 
 
 Pierce v. Wilson, 34 Ala. 376 19,9 
 
 Pierpont v. Powle, 2 W. &M. 24 .' 134, 210 ' 
 
 Piesch V. Dixon, 1 Mass. (U. S.) 11 51 
 
 Pindar v. Kings County Insurance Company, 36 IST. Y. 648 291 
 
 Pinney v. Thompson, 3 Iowa, 74 201 
 
 Piper V. Chappell, 14 M. & W. 624 12 
 
 Piscataqu Exchange Bank v. Carter, 20 N. H. 246 279, 308 
 
 Pittsburgh Insurance Company v. Dravs, 2 W. K C. (Penn.) 194, 134, 218 
 
 Pittsburgh v. O'Neil, 1 Penn. St. 342 217 
 
 Place u. Allcock, 4 Pr. F. 1074 124 
 
 Plain V. Allcock, 4 F. & F. 1074 118 
 
 Planche v. Fletcher, 1 Doug. 521 ; 311 
 
 Plummer v. Bentham, 1 Burr. 248 12 
 
 Pocock V. Hendricks, 8 G. & J. 421 123 
 
 Polk V. Anderson, 16 Kan. 248 87 
 
 Polk V. Hill, 2 Overt. (Tenn.) 157 23, 34, 106, 179 
 
 Pollard V. Stanton, 5 Ala. 451 205 
 
 Pollock V. Stables, 12 Q. B. 765 125, 129 
 
 Poole V. Hill, 6 M. & W. 835 130, 193 
 
 Pope V. Nickerson, 3 Story, 465 91 
 
 Porter v. Hills, 114 Mass. 103 110, 156 
 
 Potter V. Murland, 3 Cush. 384 68, 122 
 
 Powell V. Horton, 2 Bing. N. C. 668 129, 171, 190, 269 
 
 Power V. Kane, 5 Wis. 265 40, 64, 171 
 
 Powley V. Walker, 5 T. E. 373 43 
 
 Prather v. Ross, 17 Ind. 495 90, 167, 175 
 
 Pratt V. Langdon, 97 Mass. 97 86 
 
 Prescott V. Hubbell, 1 McCord S. C. 94 25, 182 
 
 Price V. White, 9 Ala. 563 124 
 
 V. Williams, 1 M. & W. 6 130, 193 
 
 Priegen v. Exchange Life Insurance, 6 Wis. 89 290 
 
 Pritti). Fairclough, 3 Camp. 305 172 
 
 Prudar v. Continental Insurance Company, 47 N. Y. 114 291 
 
 Putnam v. Tillotson, 13 Met. 577 69, 208, 211 
 
 Purcell V. Burns, 39 Conn. 429 198 
 
 Pursell V. McQueen, 9 Ala. 380 110, 196, 269 
 
 R. 
 
 Pace V. Ward, 4 E. & B. 702 24 
 
 Eaffert v. Scraggin, 40 Ind. 195 85 
 
 Kagley v. Goodloe, 7 La. An. 295 176 
 
 Railroad Company v. Middleton, 20 111. 629 203 
 
TABLE OF CASES CITED. XXXIX 
 
 Paqi 
 
 Eaittti. Mitchell, 4 Camp. 156 129 
 
 Randall v. Kehlor, 60 Me. 37 168 
 
 V. Eotch, 12 Pick. 107 41, 82, 84, 95, 112, 163 
 
 V. Smith, 63 Mo.- 105 96 
 
 Rankin v. American Insurance Company, 1 Hall 619 23, 41, 83, 84, 96, 
 
 100, 162, 166, 248, 249, 250, 311. 
 
 Rapp V. Palmer, 3 Watts 178 19, 23, 63, 105, 113, 114, 118, 158 
 
 Rawson v. Walker, 1 Stark. 361 79 
 
 RayhfTe v. Butterworth, 1 Exchq. 429 125 
 
 Raymond i;. Lowell, 6 Cush. 524 214 
 
 V. Sellick, 10 Conn. 480..' 87 
 
 Read v. Delaware and Hudson Canal Company, 3 Lans. 213 156, 256 
 
 Reading v. Newnham, 1 M. & Rob. 234, at p. 236 264 
 
 Reddling v. Menhan, 1 M. & R. 236 133 
 
 Reedi). Richardson, 98 Mass. 216 145, 207, 247,302 
 
 Reeside, Schooner, 2 Sumn. 574 81, 85, 100, 107,110, 
 
 113,143,183,210,280,301 
 
 Reg. V. Dalby, 3 Q. B. 602 27 
 
 Regina v. Powell, 25 Eng. L. & Eq. 53 218 
 
 Reg. V. Stoke-upon-Trent, 5 Q. B. 303 51, 112, 243,270 
 
 Register v. Spencer, 24 Md. 520 64, 114, 158 
 
 Reilly v. Rand, 123 Mass. 215 214 
 
 Remy v. Duffee, 4 Ala. 365 181 
 
 Rennell v. Kimball, 5 Allen 356 215 
 
 Renner v. Bank of Columbia, 9 Wheat. 581 23, 25, 41, 57, 58, 82, 83, 84, 
 
 99, 112, 162, 194, 281, 300, -305, 306, 316, 318, 319 
 
 Rex. V. Joliffe, 2 B. & C. 54 18 
 
 V. Laindon, 8 T. R. 379 41 
 
 Reynolds v. Continental Insurance Company, 36 Mich. 131 136 
 
 V. Jourdan, 6 Cal. 108 ! 91, 167, 175,310 
 
 Rhoades v. Castner, 12 Allen 130 Ill 
 
 Rhodes v. Riseley, 1 N. Chip. 52 85 
 
 Rice V. Codman, 1 Allen 377 95 
 
 Rich V. Jackson, 4 Br. C. C. 514 89 
 
 Richards •v. Schlegelmich, 65 N. C. 150 90,198 
 
 Richardson v. Comstock, 21 Ark. 69 199 
 
 V. Copeland, 6 Gray 536 95,215 
 
 V. Goss, 3 B. & P. 119 262 
 
 V. Walker, 2 B. & C. 839 33 
 
 V. Watson, 4 B. & A. 798 80, 104 
 
 Rigsbee v. Bowler, 17 Ind. 167 200 
 
 Riley v. Gregg, 16 Wis. 666 205 
 
 Ring V. Billings, 51 III. 475 112 
 
 Ripley i;. ^tna Insurance Company, 30 N. Y. 136 156,291 
 
 Ripley i;. Crooker, 47 Me. 370 40,318 
 
 Rockey v. Huggens, Cro. Car. 220 27 
 
 Roberts v. Baker, 1 Cr. & M. 808 43, 51, 61, 70, 133 
 
 V. Bethell, 12 C. B. 778 172 
 
xl ^ TABLE OF CASES CITED. 
 
 Paob 
 
 Robertson v. Clarke, 1 Bing. 445 129, 189 
 
 V. French, 4 East 135 80, 183, 190 
 
 V. Jackson, 2 C. B. 412 54, 129, 173, 190,219 
 
 V. Money, 1 By. & M. 75 92 
 
 Robinson v. Batohelder, 4 N. H. 40 87 
 
 V. Harman, 1 Ex. B. 855 287 
 
 V. Magarity, 28 111. 423 199 
 
 V. United States, 13 Wall. 365 90, 113, 119, 120,309 
 
 , V. White, 42 Me. 209 202, 203 
 
 Rogers v. Atkinson, 1 Ga. 12 201, 203 
 
 V. Brenton, 10 Q. B. 26 27 
 
 V. Mechanics' Insurance Company, 1 Story 603. ..134, 143, 173, 180, 249 
 
 Rose V. Learned, 14 Mass. 154 204 
 
 Roxburghe v. Robertson, 2 Bligh. 156 51, 73 
 
 Buan V. Gardner, 1 Wash. C. C. 145 124, 147, 161, 249,316 
 
 Rubber Company v. Dunklee, 30 Vt. 29 200 
 
 Rugby V. Goodloe, 7 La. An. 295 173 
 
 Bugeleyi). Goodloe, 7 La. An. 295 198 
 
 Rugg V. Hale, 40 Vt. 138 203 
 
 Ruggles D. Swainvick, 6 Minn. 526 201 
 
 Eushford v. Hatfield, 7 East 224 58, 97, 290, 304, 310 
 
 Russian Steam Navigation Company v. Silva, 13 C. B. N. S. 610 192, 311 
 
 Ryder v. Woodley, 10 W. R. 294 221, 242 
 
 S. 
 
 St. Cross Master of v. Lord Howard de Walden, 6 T. R. 338 131, 132 
 
 St. Nicholas Insurance Company v. Mercantile Insurance Company, 
 
 5Bas. N. Y. 238 82,183 
 
 Saint V. Smith, 1 Coldw. (Tenn.) 51 52,115,117,158 
 
 Sale V. Pratt, 19 Pick. 191 213 
 
 Salisbury v. Gladstone, 6 H. & N. 123 47 
 
 Sampon v. Gazzam, 6 Tort. (Ala.) 123 28,52, 84, 114, 118, 126, 
 
 173, 176, 182, 209, 240, 310 
 
 Sanders v. Jameson, 2 C. & K. 557 27 
 
 Sanderson v. Columbian Insurance Company, 2' Cr. C. C. 218 26 
 
 Sandfordi;. Handy, 23 Wend. 126.... 199 
 
 ■c. Rawlings, 43 111. 92 41, 82, 83, 84, 113, 168, 264, 265, 310 
 
 Sands v. Woods, 1 la. 263 204 
 
 Sargent u Salberg, 21 Wis. 132 203 
 
 Satilicohos v. Kemp, 3 Exch. 105 85 
 
 Sawyer v. Boyle, 21 Tex. 28 202 
 
 V. Dodge County Mutual Insurance Company, 37 Wis. 504 289 
 
 Sawtelle v. Drew, 122 Mass. 228 85, 118, 206 
 
 Scales V. Key, 11 Ad. & El. 819 18 
 
 Schenck v. GrifFen, 88 N. J. L. 463 56, 85, 110, 118 
 
 Schiefflin v. Harvey, 6 John. 170 85, 94, 105, 164 
 
 v. Harvey, Anth. 56 298, 300, 304, 816 
 
 Schlessinger v. Dickinson, 5 Allen, 47 66 
 
TABLE OF CASES CITED. xli 
 
 Pagb 
 
 Schneider 1). Heath, 3 Camp. 506 310 
 
 Schnitzer v. Oriental Paint Works, 14 Mass. 123 67 
 
 V. Print Works, 114 Mass. 123 91 
 
 Schoonmaker -y. Wilbraham, 110 Mass. 134 214 
 
 Schreiber D. Horsley, 11 Jur. N. S. 675 190 
 
 Schultz V. Leidman, 14 C. B. 38 54, 190, 219 
 
 Scott V. Bourdillion, 2 N. E. 213 173 
 
 V. Irving, 1 B. & Ad. 606 285 
 
 Scudder v. Bradbury, 106 Mass. 422 110 
 
 Seaney v. Central Life Insurance Company, 111 Mass. 540 289 
 
 Searson v. Heyward, 1 Spears (S. C.) 249 52, 66, 127, 279 
 
 Security Bank v. Bank of the Republic, 67 N. Y. 458 96,299 
 
 Seiber v. Price, 26 Mich. 518 86 
 
 Selden v. Myers, 20 How. 506 199 
 
 Selman v. Dun, 10 West. L. J. 459 ! 26 
 
 Senett v. Shumwaj-, 102 Mass. 365 309 
 
 Senior V. Armitage, 1 Holt. N. R. 197 43,45,48,69,72 
 
 Sevey's Case, 6 Me. 118 123 
 
 Sewall V. Gibbs, 1 Hall. 612 23, 51, 52, 65, 114, 126, 135, 162, 168, 171, 316 
 
 Seymour v. Osborne, 11 Wall. 546 90 
 
 Shackelford v. New Orleans, &c., Railroad Company, 37 Miss. 202 64, 114, 
 
 118, 158 
 
 Shackfer v. Newington, 46 IST. H. 415..- 86 
 
 Shattuck V. Woods, 1 Pick. 171 215 
 
 Shaw V. Mitchell, 2 Met. 65 40, 84, 164, 240 
 
 Shepherd v. Kain, 5 B. & Aid. 240 310 
 
 V. Wysong, 3 W. Va. 46 88 
 
 Shore v. Wilson, 9 C. & F. 355 39, 90, 172, 189 310 
 
 Shourbridge v. Clark, 22 Eng. L. & Eq. 435 139 
 
 Shove V. Wiley, 18 Pick. 558 209 
 
 Shuetze v. Bailey, 40 Mo. 69 198 
 
 Shuttleworth v. Le Fleming, 19 C. B. K S. 687 19 
 
 Sigsworth v. Coulter, 18 111. 204 86 
 
 V. Mclntyre, 18 111., 126 41, 83, 84, 163 
 
 Simmons v. Law, 3 Keyes, 219 82, 83, 85, 95, 113, 135 
 
 Simpson ■!;. Margitson, 11 Q. B. 23 129,134,173 
 
 V. Wells, 7 L. R. Q. B. 214 18 
 
 Sims V. State Insurance Company, 47 Mo. 54 288 
 
 Sines v. Flagg, 4 Conn. 581 166 
 
 Singleton v. Mutual Insurance Company, 66 Mo. 63 311 
 
 Sipperly v. Steward, 50 Barb. 62 28, 66, 104, 114, 118, 
 
 126, 143, 162, 210, 257, 304 
 
 Sleght V. Rhinelander, 1 Johns. 192 ,23, 41, 55, 82, 83, 84, 103, 162, 318 
 
 Smalley v. Hale, 32 Mo. 102 86 
 
 Smart v. Hyde, 8 M. & W. 723 112, 233 
 
 Smetz V. Kennedy, Riley, 218 180, 281 
 
 Smith V. Alexander, 31 Mo. 193 202,203 
 
 V. Barber, 1 Root 207 205 
 
xlii TABLE OF CASES CITED. 
 
 Page. 
 
 Smith V. Clayton, 29 N. J. L. 357 90, 167 
 
 V. Clark, 12 la. 32 121, 160 
 
 V. First National Bank of Westfield, 99 Mass. 605 232 
 
 V. Floyd, 18 Barb. 523 17, 117, 119, 149 
 
 V. Gibbs, 44 N. H. 335 19, 64, 114, 118, 158 
 
 V. Glover, 2 Cr. (U. S.) 334 25 
 
 u Jeffreys, 15 M. & W. 662 79 
 
 V. Lawrence, 26 (Jonn. 467 224 
 
 V. Lindon, 5 C. B. N. S. 587 283 
 
 V. Lynes, 5 N. Y. 41 135 
 
 t». Marrable, 11 M. & W. 5 287 
 
 V. Mobile Navigation, &c., Company, 30 Ala. 167 ..81, 82, 249, 251 
 
 V. Richards, 29 Conn. 232 87 
 
 V. Thompson, 8 C. B. 44 41 
 
 V. Walton, 8 Bing. 238 75, 132 
 
 V. Wilson, 3 B. & Ad. 371 54, 84, 104, 130, 131, 169, 173 
 
 V. Wright, 1 Cai. 45 23, 58, 63, 151, 158 
 
 Snelling v. Hall, 107 Mass. 134 95, 112, 308 
 
 Snowden v. Warder, 3 RawlelOT 58, 98, 99, 100, 102, 
 
 174, 187, 234, 316, 317, 319 
 
 t;. Warder, 3 Eawle 110 303 
 
 Solby V. Hinde, 2 C. & M. 516 86 
 
 Somerby ii. Thompson, Wright 573 23, 63, 115, 158 
 
 Souter V. Drake, 5 B. & Ad. 992 287 
 
 Southwell V. Bowditch, 1 C. P. 106 112 
 
 Southwestern Freight &c. Co. ■<;. Stanard, 44. Mo. 71 127, 133, 140, 143, 157 
 
 Soutier v. Kellerman, 18 Mo. 509 63, 91, 108, 110, 310 
 
 Sotilichos V. Kemp, 3 Exchq. 105 60 
 
 Spaid V. Barrett, 57 111. 289 86 
 
 Sparhawk v. Bullard, 1 Met. 95 213 
 
 Sparks v. Dawson, 47 Tex. 138 86 
 
 Spartali v. Benecke, 10 C. B. 212 53, 89, 127, 133, 231,233 
 
 Spear i;. Hart, 3 Robt. 420 112, 135,164 
 
 Spears V.Ward, 48 Ind. 546 , 85,113 
 
 V. Hartley, 3 Esq. 81 262 
 
 Spencer 11. Babcock, 22 Barb. 326 203 
 
 Spiceri). Cooper, 1 Q. B. 421 59,129, 173, 192,310 
 
 Spratley v. Hartford Insurance Company, 1 Dill 392 289 
 
 Sprowle V. Legge, 1 B. & C. 16 132 
 
 Stacy V. Kemp, 97 Mass. 166 86 
 
 Stafford v. Gardner, 7 L. E. C. 242 77 
 
 Stanton v. Jerome, 54 N. Y. 480 : 113 
 
 V. Small, 3 Saudf (N. Y.) 230 167, 210, 257_ 
 
 Star Glass Company v. Morey, 108 Mass. 570 139, 211 ' 
 
 Stark V. Littlepage, 4 Rand (Va.) 368 199 
 
 State V. demons, 9 la. 534 202 
 
 V. Jersey City, 24 N. J. L. 108 182 
 
 V. McClay, 1 Harr. (Del.) 520 171 
 
TABLE OF CASES CITED, xliii 
 
 Pagb 
 
 State 1). Weare, 38 N. H. 314 202 
 
 Stead V. Dawber, 10 A. & E. 57 88 
 
 Stearns v. Hall, 9 Gush. 31 200 
 
 V. Reeves, 9 Pick. 198 110 
 
 Stebbins v. Brown, 65 Barb. 274 84, 95, 112, 185, 163, 164 
 
 V. Globe Insurance Compa.ny, 2 Hall, 632 84, 135, 183 
 
 Steel V. Houghton, 1 H. Bl. 51 29 
 
 Steele v. McTyer, 31 Ala, 667 81, 261 
 
 Steinbach v. La Fayette Insurance Company, 54 N. Y. 90 292, 296 
 
 Steiner v. Coxe, 4 Penn. St. 13 105 
 
 Stephens v. Medina, 4 Q. B. 422 131, 193 
 
 V. Tuckerman, 33 N. J. L. 543 209,245,246 
 
 Stevens D. Hays, 8 Ind. 277 203 
 
 •i'. Reeves, 9 Pick. 198 .' 28, 104, 114, 118, 126, 157, 162, 205, 268 
 
 Steward v. Scudder, 24 N. J. L. 96 56, 68, 110. 118, 162, 
 
 163, 167, 185, 240, 266, 271 
 
 Stewarei;. Caaty, 8 M. & W. 160 129,287 
 
 Stewart D. Aberdein, 4 M. & W. 211 129,287 
 
 V. Chadwick, 8 la. 463 202,203 
 
 V. Smith, 28 111. 397 91,175,310,811 
 
 Stillman t;. Hunt, 10 Tex. 109 25,143,191,207 
 
 Stocktons Collins, 7 M. & W. 515 172 
 
 Stoever V. Whitman. 6 Binn. 416 25,48,96,100,181,302,804 
 
 Stone V. Aldrich, 43 N. H. 52 203 
 
 V. Bradbury, 14 Me. 85 90, 177, 310 
 
 V. McClay, 1 Harr. (Del.) 520 48 
 
 V. Rawlinson, Willes 561 13 
 
 Story V. Farmers' Transportation Company, 17 Hun. (N. Y.) 579 318 
 
 Stover V. Freeman, 6 Mass. 435 213 
 
 Stowell V. Robinson, 3 Bing. N. C. 928 88 
 
 Stratup V. Dodderidge, 2 Ld. Raym. 1158 28 
 
 Stray v. Russell, 29 L. J. Q. B 283, 285 
 
 Strong V. Benedict, 5 Conn. 210 166 
 
 V. Bliss, 6 Met. 393 95,105,298,800,304 
 
 V. Carrington, 11 Am. L. R. 287 19,134,210 
 
 V. Grand Trunk Railroad Company, 15 Mich. 206 145, 315 
 
 Stroud V. Frith, 11 Barb. 300 310 
 
 Stuart V. Morrison, 67 Me. 549 199 
 
 Study V. Saunders, 5 B. & C. 628 269 
 
 Stultz V. Dickey, 5 Binn. 287 23, 48, 50, 52, 65, 84, 114, 126, 161, 171, 209, 240 
 
 Sturgis V. Cary, 2 Curtis C. C. 382 .....67, 90, 170, 180, 261, 310 
 
 Sturm i). Williams, 6 J. & S. 325 311 
 
 Succession of Fletcher, 11 La. An. 59 200 
 
 Guillory, 29 La. An. 495 199 
 
 Suffirn V. Butler, 21 N. J. Eq. 410 410 
 
 Sugart V. Mays, 54 Ga. 554 85 
 
 Sumner v. Stewart, 69 Penn. St. 321 168 
 
 V. Tyson, 20 N. H. 384 110, 120, 150, 154, :i34 241 
 
xliv TABLE OF CASES CITED. 
 
 Page 
 
 Sunday v. Gordon, 1 Bl. & H. 569 HO, 211 
 
 Supervisors v. Van Clief, 1 Hun. 454 143, 298 
 
 Suse V. Pompe, C. B. N. S. 538 85, 113, 115, 263 
 
 Sutton V. Tatham, 10 Ad. & El. 27 129, 282 
 
 V. Temple, 12 M. & W. 52 43, 72, 287 
 
 Suydam v. Clark, 2 Sandf. 133 135, 164 
 
 Swain v. Cheney, 41 N. H. 232 208 
 
 Swallow, The, 01c. U. S. 334 26 
 
 Swanscot Machine Company v. Partridge, 25 N. H. 369 83, 249, 369 
 
 Swank 1). Nichols, 24 Ind. 199 203 
 
 Sweet V. Jenkins, 1 R. I. 147 41, 82, 83, 84, 135, 162, 318 
 
 Sweeting v. Pearce, 7 C. B. N. S. 449 280, 286 
 
 Swett V. Shumway, 102 Mass. 365 Ill 
 
 Swift V. Gifford, 2 Low. 110 188 
 
 Syers v. Jonas, 2 Exch. Ill 51, 112, 129, 187, 254 
 
 Symonds v. Lloyd, 6 C. B. N. S. 691 173, 217, 253 
 
 T. 
 
 Tanistry's Case, Sir J. Davis Rep. 32 23, 28, 98 
 
 Taunton Copper Company v. Merchants Insurance Company, 22 Pick. 
 
 108 250,252 
 
 Tauro v. Cassin, 1 N. & M. 176 158 
 
 Taylor v. Briggs, 2 C. & P. 525 57, 59, 169, 173, 184, 266 
 
 V. Carpenter, 2 Wash. U. S. 2 27, 180 
 
 i;. Galland, 3 Greene 17 201 
 
 ■u. Griswold, 3 N. J. Eq. 222 182 
 
 V. Ketchum, 5 Eobt. (N. Y.) 507 84, 94, 135, 159, 164, 188, 303 
 
 V. Kirn, 18 Iowa 485 205 
 
 V. Moore, 23 Ark. 408 86 
 
 V. Satalinge, 6 La. Ann. 154 91,167,175,310 
 
 V. Semmes, 4 G. & J. Md. 274 167 
 
 V. Stray, 2 C. B. N. S. 175 125, 283, 285 
 
 Templeman v. Biddle, 1 Harr. (Del.) 522 50 
 
 Tenney v. Tuttle, 1 Allen 185 246 
 
 Thatcher v. McCulloh, 01c. (U. S.) 365 26 
 
 Thayer t). Torrey, 87 N. J.L. 339 198 
 
 V. Wadsworth, 19 Pick. (Mass.) 349 270 
 
 Theurer v. Schmidt, 10 La. An. 293 86, 199 
 
 Thomas v. Hammond, 47 Tex. 43 87 
 
 V. Kennedy, 24 La. An. 209 86 
 
 V. 0'1-Iara, 1 Mill. Const. 803 23,53,58,63,102, 
 
 109, 158, 167, 229, 319 
 
 V. Graves, 1 Mill's Const. 309 23, 63, 93, 114, 119, 149, 158, 229 
 
 Thompson v. Ashton, 14 Johns. 417 113, 234, 297, 298 
 
 V, Hamilton, 12 Pick. 425 40, 58, 65, 110, 167, 204, 205, 208, 240 
 
 V. Eiggs, 5 Wall. (U. S.) 663 26, 213 
 
 V. Sloan, 23 Wend. 71 92, ]75, 194 
 
 Thorpe v. Eyre, 1 Ad. & El. 926 76 
 
TABLE OF CASES CITED. xlv 
 
 Page 
 
 Thornton v. Suffolk Manufacturing Company, 10 Cush. 376 197,280 
 
 Totten ('. United States, 92 U. S. 105 8S 
 
 Touro V. Cassin, 1 K & M. (S. C.) 176 23, 64 
 
 Townsend v. Cawler, 31 Ala. 428 199 
 
 V. Whitby, 5 Harr. 55 63, 64,160 
 
 Tremble v. Cramell, 17 Mich. 493 302 
 
 Trimble v. Vignier, 1 Bing. 151 91 
 
 Trott V. Wood, 1 Gall. 443 19, 23, 59, 63, 115, 158, 210 
 
 Trueman v. Loder, 11 Ad. & E. 599 60, 84, 132, 189, 275 
 
 Trustees v. Hill, 12 la. 462 86, 214 
 
 Tudgay v. Sampson, 30 L. T. N. S. 262 185 
 
 Tunell V. Carter, 25 Ala. 498 123 
 
 Turner v. Burrows, 5 Wend. 541 100 
 
 V. First National Bank of Kekokuk, 26 la. 562. 232 
 
 V. Turner, 44 Mo. 535 86 
 
 V. Yates, 16 How. (U. S.) 14 168,314 
 
 Turley v. Thomas, 8 C. & P. 104 12 
 
 Turney v. Wilson, 7 Yerg, 340 50, 100, 183 
 
 Tusting ^. Sullivan, 41 Md. 170 87 
 
 Tuxbury v. French, 41 Mich. 7 198 
 
 Tuygle V. McMath, 38 Ga. 648 203 
 
 Tyson V. Smith, 9 A. & E. 406 20,24 26 
 
 U. 
 
 Uhde 1). Walters, 3 Camp. 16 58,92,128 
 
 Union Bank v. Forrest, 3 Cranch. C. C. 218 110,211 
 
 United States v. Arredondo, 6 Pet. 715 2,7,23,52,65,102, 
 
 114, 126, 162, 171, 240, 319 
 
 V. Breed, 1 Sumn. 159 177 
 
 V. Buchanan, 8 How. (U. S.) 83 19, 27,245 
 
 V. Buchanan, Crabbe, 563 105 
 
 i>. Duval, Gilp. 356 23, 63, 105, 158, 230 
 
 V. Fiddlebrown, 7 Pet. (U. S.) 50 230 
 
 V. Kean, 1 McLean, (U. S.) 429 162 
 
 V. McCall, Gilp. (U. S.) 577 230 
 
 V. McDaniel, 7 Pet. 1-14 .23, 34, 166, 249, 250 
 
 V. Richardson, Crabbe, 563 302 
 
 Upton V. Sturbridge Cotton Mills, 111 Mass. 446 123 
 
 V. 
 
 Vail V. Eice, 5 N. Y. 155 84, 93. 98, 119, 120, 135, 149, 162, 163, 245 
 
 Vallance v. Dewar, 1 Camp. 403 114, 126, 127, 129, 146, 189, 190, 310 
 
 Vallejo V. Wheeler, 1 Cowp. 143 13 
 
 Vallejio v. Wheeler, Lofft. 631 115, 128 
 
 Van Allen v. Allen, 1 Hill C. P. 524 204 
 
 Van Alstyne v. ^Etna Insurance Company, 14 Hun. 360 112, 162 
 
 Van Buskirk ■!). Day, 22 111. 260 199 
 
 V. Roberts, 31 N. Y. 661 201 
 
xlvi TABLE OF CASES CITED. 
 
 Page 
 
 Van Doren 11. Everitt, 5 N. J. L. 460 ■ 50 
 
 Vanheath v. Turner, Winch. 24 174 
 
 Van Ness v. Packard, 2 Pet. {U. S.) 137 26-48, 50, 58, 171, 174, 240 
 
 Van Ostrand 1). Eeed, 1 Wend. 424 40 
 
 Van Scmidt v. Huntington, 1 Gal. 55 301 
 
 Vaughn V. Gardner, 7 B. Mon. 326 196, 270 
 
 Vergan I). McGregor, 23 Cal. 339 203 
 
 W. 
 
 Wacher v. Quenzer, 29 N. Y. 547 156 
 
 Wadd V. Wilcox, 9 Wend. (N. Y.) 349 319 
 
 Waddell f . Glassell, 18 Ala. 561 199 
 
 Wadley v. Bayhss, 5 Taunt. 752 42 
 
 ■v. Davis, 63 Barb. 500 145,156,157 
 
 Wadworth v. Allcott, 6 N. Y. 64... 41, 46, 64, 82, 83, 84, 94, 99, 135, 162, 164, 318 
 
 Wait V. Fairbanks, Breyt. 77 91, 171, 173, 175, 310 
 
 Walker v. Barron, 6 Minn. 508 47, 52, 115, 117, 158, 160 
 
 V. Garrington, 84 111. 146 86 
 
 V. Moore, 10 B. & G. 416 287 
 
 V. Smith, 2 Vt. 539 85 
 
 V. The Transportation Company, 3 Wall (U. S.) 150 27, 34, 136 
 
 144, 180, 202, 297 
 
 V. Wells, 25 Ga. 141 203 
 
 Wall V. East'River Insurance Gompany, 3 Duer 264 94, 135, 249, 264 
 
 V. Insurance Gompany, 7 N. Y. 370 163,164 
 
 Wallace V. Bradshaw, 6 Dana 382 155,271 
 
 Walls V. Bailey, 49 N. Y. 464 91, 92, 143, 167, 216, 257, 310 
 
 Walsh V. Frank, 19 Ark. 270 121, 149 
 
 V. Mississippi Insurance Company, 52 Mo. 434 157 
 
 ■y. Trevanion, 15 Q. B. 733 80 
 
 Ward V. Stout, 32 111. 399 205 
 
 Warde v. Stewart, 1 G. B. N. S. 88 192 
 
 Ware v. Hayward Rubber Company, 3 AUeu 84 46 
 
 Warner v. Footman, 54 Ga. 128 85 
 
 Warren Academy II. Starrett, 15 Me. 443 204 
 
 Bank v. Parker, 21 Peck. 483 171, 174, 239, 307 
 
 V. Crew, 22 Iowa, 315 199 
 
 V. Warren, 1 C. M. & R. 250 172 
 
 Washington Fire Insurance Company v. Davidson, 30 Md. 91 294,296 
 
 Waterpark, Lord, v. Pennell, 7 H. of L. Ca. 650 43 
 
 Waters v. Lilly, 4 Pick. 145 17, 99, 144, 145 
 
 Watkins-i). Eastin, 1 A. K. Marsh 402 197 
 
 V. Kilpatrick, 26 N. J. 84 205 
 
 Watti;. Hoch, 25 Penn. St. 411 52,66,96,118,127,171,210,239 
 
 Waymell v. Reed, 5 T. R. 600 86 
 
 Wayne v. Steamboat General Pike, 16 Ohio 42 182, 240 
 
 Weaver v. Fletcher, 27 Ark. 570 87 
 
 Webb V. National Fire Insurance Company, 2 Sandf. 447 289 
 
TABLE OF CASES CITED, xlvii 
 
 Page 
 
 Webb V. Plummer, 2 B. & Aid. 746 43, 51, 62, 70, 71, 72, 810 
 
 "Webster D. Granger, 78 111. 230 67,201 
 
 Weber D. Kingsland, 8 Bos. 415 119,278 
 
 Weldi;. Gotham, 10 Mass. 366 99,806,316,577 
 
 Wentworth v. Chase, 11 Mass. 87 57 
 
 Wesley?). Thomas, 6 H. & J., 24 199 
 
 West V. Kelly, 19 Ala. 353 199 
 
 Westfallv. Singleton, 1 Wash. (Va.) 227 25, 144,182 
 
 Weston V. Ernes, 1 Taunt. 115 79 
 
 Wetherell v. Neilson, 20 Penn. St. 448 118, 234 
 
 Wharton -y. Douglass, 76 Penn. St. 278 86 
 
 Wheeler v. Newbould, 5 Duer 29 28, 65, 99, 104, 114, 118, 
 
 126, 135, 219, 228, 297, 299 
 
 V. Nourse, 20 N. H. 220 41,82,88,84,162 
 
 Whitcher I!. Shattuck, 3 Allen 819 201 
 
 White ■!). Puller, 4 Hun. (K Y.) 681 161 
 
 V. Nicholson, 4 M. & G. 95 74 
 
 V. Parkin, 12 East. 578 87, 88 
 
 V. Sayer, Palm. 211 73 
 
 V. Van Kirk, 25 Barb. 16 103 
 
 V. Wilson, 2 B. & P. 116 89 
 
 Whitehouse v. Moore, 13 Abb. Pr. 142 , 110, 219 
 
 Whitesell v. Crane, 8 W. & S. 869 210, 219 
 
 Whitimarsh -u. Cutting, 10 John. 860 48 
 
 Whitmarsh v. Conway Fire Insurance Company, 16 Gray 359 56, 187, 266, 
 
 291, 296, 310 
 
 Whitmore v. South Boston Iron Company, 2 Allen 52 66, 112, 197, 318 
 
 Whitney v. Boardman, 118 Mass. 242 91, 309, 310 
 
 V. National Bank of Brattleboro, 50 Vt. 889 232 
 
 WhitsidesiJ. Meredith, 3 Yeates 818 99,102,148,817 
 
 Whittemore i;. Weiss, 83 Mich. 348 90,311 
 
 Whitwell ■U.Johnson, 17 Mass. 452 307 
 
 Wiokersham v. Orr, 9 la. 253 112 
 
 Wiokham v. Hawker, 7 M. & W. 63 17 
 
 Widgery I). Monroe, 6 Mass. 449 57, 99, 807, 316 
 
 Wigglesworth v. Dallison, 1 Dougl. 207 28, 45, 48, 60, 69,131 
 
 Wilcocks V. Phillips, 1 Wall. Jr. 47 82, 105, 110, 126, 186,302 
 
 Wilcox «. Wood, 8 Wend. 266 7, 50, 66, 102, 171, 240,311 
 
 Wild i;. Gotham, 10 Mass. 366 300 
 
 Wiley V. National Bank of Brattleboro, 47 Vt. 546 232 
 
 Wilkes V. Broadbent, 1 Wils. 63 28 
 
 Wilkins v. Wood, 17 L. J. Q. B. 819 48, 48 
 
 Willes V. Fernald, 23 N. J. L. 206 41 
 
 Willey V. Hall, 8 la. 62 201, 208 
 
 Williams v. Gilman, 3 Me. 281 58, 99, 144, 171, 197, 280, 317 
 
 V. Powell, 101 Mass. 467 215 
 
 V. Waters, 86 Ga. 454 199 
 
 V. Williams, Garth. 269 7 
 
xlviii TABLE OF CASES CITED. 
 
 Page 
 
 Williams v. Woods, 16 Md. 220 90, 167, 175, 310 
 
 Willmering v. MoGaughey, 30 la. 205 85, 113 
 
 Wilson V. Baurman, 80 111.493 157 
 
 V. Home, 87 Miss. 477 199 
 
 V. Randall, 67 N. Y. 338 310 
 
 V. Kobertson, 7 J. J. Mar. 78 199 
 
 ■v. Willes, 7 East. 121 29 
 
 Wiltshear ^. Cottrell, 1 E. & B. 674 76 
 
 Winder ■!). Blake, 4 Jones 332 17,80,304 
 
 Wing D. Earle, Cro. Eliz. 267 131,321 
 
 Winni;. Chamberlain, 32 Vt. 318 201 
 
 Winsor v. Dellaway, 4 Mete. 221 123 
 
 Winter v. United States, Hempst. (U. S.) 344 27, 34, 180, 297 
 
 Wintermute ^. Light, 46 Barb. 283 127 
 
 Winthrop v. Union Insurance Company, 14 Pick. 141 304 
 
 -u. Union Insurance Company, 2 Wash. C. C. 7....23, 96, 161, 147, 250 
 
 Winthroop v. Union Insurance Company, 2 Wash. (Va.) 7 166, 250, 316 
 
 Wise ■;;. Neal, 39 Me. 422 86 
 
 Wiseman ■;;. Chiappella, 23 How. 368 25 
 
 Wisslerw. Hershey, 23 Penn. St. 333 121 
 
 Witherill I). Neilson, 20 Penn. St. 448 85,104,105,239 
 
 Withnell v. Gratham, 1 Esp. 322 42 
 
 Wolfe V. Myers, 3 Sandf. 7 39 
 
 Wordington v. Warrington, 8 C. B. 134 287 
 
 Wormersley v. Dally, 2 L. J. Exch. 219 76 
 
 Wormersly v. Dally, L. J. Exchq. 216 45 
 
 Wood V. Hickok, 2 Wend. 501 28, 58, 104, 114, 119, 126, 149, 157, 162, 171 
 
 V. Perry, 37 Penn. St. 240 56 
 
 V. Perry, 1 Barb. 113 201 
 
 V. Wilcox, 9 Wend. (N. Y.) 349 84, 99, 316 
 
 Woodin V. Foster, 16 Barb. 146 , 204 
 
 Woodruff V. Merchants' Bank of City of New York, 25 Wend. 673. ..57, 79, 298 
 
 Woods-!). Sawin, 4 Gray 322 309 
 
 Wray -!). Wray, 3 Ind. 126 86 
 
 Wren v. Eargo, 2 Oreg. 19 208 
 
 Wright V. Deklyne, Pet. C. C. 199 199 
 
 V. Morse, 9 Gray, 337 204 
 
 V. Snell, 5 B. & Aid. 353 262 
 
 Wymani;. Fiske, 3 Allen, 238 86 
 
 Wynne D. Whisenant, 37 Ala. 46 200 
 
 Y. 
 
 Yates v. Duff, 5 C. & P. 191 
 
 Yeates ■;;. Pim, 2 Marsh 141 57, 85, 100, 132, 169, 171, 259, 305 
 
 Yeaton 11. Bank of Alexandria, 5 Cranch. (U. S.) 492 171 
 
 Young i;. Frost, 5 Gill. 287 199 
 
 V. Jacoway, 17 Miss. 212 201 
 
THE LAW 
 
 USAGES AND CUSTOMS. 
 
 INTEODUCTION. 
 
 I DO not 23urpose to search for or in this place to expound 
 the fundamental principles of all law, but to point out how 
 large a portion of our law — which may be looked upon as 
 crystallized common sense, and rational experience — was at 
 one time, in an amorphous form of heterogeneous custom. 
 Indeed, all laws have been in practice before they were put 
 in words, just as every act had its origin in intention. Laws 
 have to do with the conduct of mankind, but they are them- 
 selves the result of the conduct of men. They are the result 
 of the enduring sentiments and protests of the good against 
 the ejDhemeral backslidings of the evil. All laws float in 
 men's minds long before they send down a precipitate of 
 imperative words. It must have been understood by men 
 that theft — the act of taking the property of another without 
 his consent — was wrong before they made a law to punish 
 the thief, with the view of preventing similar depredations. 
 But long before men made a law they had bolts to their 
 doors, and if they caught the robber they exercised their 
 right by taking his booty from him and possibly even by 
 inflicting upon him a vengeful punishment. This was not 
 done by one man but by many, and we see in it the embry- 
 onic custom out of which the law has developed. There has 
 been a gradual evolution of law from the nebulous justice 
 
 1 (1) 
 
I INTKODrCTION. 
 
 which was scattered in men's minds and found an expression 
 in their conduct, to the Statute Book and the whole body of 
 text-book-law. The real legislature is the people, and the 
 legislative machinery which exists in this country, including 
 the Queen, the Houses of Lords and Commons, and the 
 Courts of Law, are only a means by which the will of the 
 people may be ascertained and reduced to writing. What I 
 here argue is, that the legislature is second in point of time 
 to the executive, that custom went before law, and, indeed, 
 that law is nothing but agreed upon usage. A very little 
 consideration will convince the reader of the truth of these 
 propositions, [a) 
 
 One of the most remarkable instances of the conversion 
 of a custom into a law occurred in connection with the 
 Landlord and Tenant (Ireland) Act, 1870 (33 & 34 Vict. 
 c. 46). What is most curious in connection with that legis- 
 lative act is that it legalized a custom, or a variety of 
 customs, which vary in every county, the real nature of 
 which is only very imperfectly understood. But the fact 
 remains that here has been the recognition of a tangible 
 custom however multiform, however various, by law — the 
 confirmation of usage by act of Parliament. As an under- 
 standing of the facts connected with the custom of Ulster 
 tenant-right will much facilitate the clear comprehension of 
 the propositions set forth above, it may not be inexpedient 
 to describe shortly the claim or right which was conferred 
 upon the tenant by this custom which affected the relations 
 of landlord and tenant in Ireland. The Irish Land Act 
 assumes that a custom which bore upon the relations of 
 landlord and tenant prevailed in the province of Ulster, and 
 that it prevailed in forms varying according to local usages. 
 There is, however, no definition of the custom to which the 
 sanction of the law is given. Indeed, men are not agreed as 
 
 (a) Ex non scripto jus venif, quod imitantur, Inst. i. 2, 9 ; D. i. 3, 82. 
 usus comprobavit : nam diuiurni mores See United States v. Arredondo, 6 Pet. 
 consensu utentium oomprobati legem (')91, 714. 
 
INTEODTJCTIOlSr. 6 
 
 to the nature or extent of the privileges it conferred. As to 
 the character of the custom, Mr. Gladstone, in introducing 
 the Bill, said, " The view we take of it is that it includes two 
 elements — it includes compensation for improvements and it 
 includes the price of good will. . . . We do not attempt 
 to modify the custom ; we do not inquire into its varieties (it 
 is well known to vary within certain limits) ; we do not 
 attempt to imjDrove it or to qualify it; we leave it to be 
 examined as a matter of fact, and when it shall have been 
 so ascertained the judge will have nothing to do but to 
 enforce it."(Z>) The attention of the Commission of Enquiry 
 into the Law and Practice in relation to the occupation of 
 land in Ireland, which was issued in 1843 under the Presi- 
 dency of the Earl of Devon, was of course directed to the 
 Ulster custom, but even the report gives no very clear and 
 distinct definition of the nature of the custom. In the pre- 
 face to Lord Devon's digest which was published after the 
 report of the Commission there are some sentences which 
 throw a little light on the subject ; he says, " the tenant 
 claims what he calls ' tenant-right ' in the land, irrespective 
 of any legal claim vested in him, or of any improvement 
 effected by him," and further on : " It is difficult to deny 
 that the effect of the system is a practical assumption by the 
 tenant of a joint proprietorship in the land, although those 
 landlords who acquiesce in it do not acknowledge to them- 
 selves this broad fact, and that the tendency is gradually to 
 convert the proprietor inio a mere rent-charger, having an 
 indefinite and declining annuity, or the lord of a copy- 
 hold." ... " It is in the great majority of cases not a 
 reimbursement for outlay incurred or improvements effected 
 on the land, but a mere life assurance or immunity from 
 outrage. Hence the practice is more accurately and signifi- 
 cantly termed ' selling the good will.' " Here, then, it is 
 evident that the Ulster tenant-right originated in an equity 
 
 (6) Hansard's Parliamentary Debates, vol. 199, p. 365. 
 
4 INTRODUCTION. 
 
 arising to the incoming tenant from the sanction given by 
 the landlord to his purchase of his farm. A fair and just 
 man could scarcely deprive him of the right of realizing the 
 sum which had been paid with his sanction, and hence arose 
 the obligation to permit him to sell again, and in this obli- 
 gation enforced by public opinion, carried out in public 
 practice, consisted the whole custom of Ulster tenant-right. 
 In Mr. O'Connell's report upon the effect of the evidence 
 given before the Commission, the description of the custom 
 is as follows : 
 
 " That according to the practice of this right no person 
 can get into the occupation of a farm without paying the 
 previous occupier the price of his right of occupation or 
 good will, whether the land be held by lease or at will. 
 That on the ejectment of any occupying tenant he reserves 
 the full selling value of his tenant-right, less by any arrears 
 due to the landlord. That the same custom, unrecognized 
 as it is by law, prevents the lord who has bought the tenant- 
 right, or otherwise got into possession of a farm, from setting 
 it at such an increase of rent as to displace tenant-right. 
 Thus, middlemen are almost unknown, and the effect of 
 competition for land is principally to increase the value of 
 the tenant-right, not the amount of the rent. That tenant- 
 right exists even in unimproved land, and that five years' 
 purchase is an ordinary payment for the tenant-right of such 
 land, while fifteen or twenty years' purchase is often given 
 for the tenant-right of highly improved farms." 
 
 The effect of the evidence of Mr. Senior, who at one time 
 filled the office of Assistant Poor-Law Commissioner, before 
 the Townland Valuation Committee in 1844, was to the 
 effect that Ulster tenant-right entitled the tenant to the dif- 
 ference between the actual rent of his farm and the competi- 
 tion price which could be obtained for it, and that it did not 
 matter whether the difference could be referred to improve- 
 ments effected by the tenant and his predecessor in title, or 
 
INTKODTJCTIOlir. 5 
 
 to the fact that the farm was held originally at a low rent. 
 He regarded it as an essential ingredient of the custom that 
 the rent should not be raised on the incoming tenant, but 
 suggested that the real difficulty in understanding the cus- 
 tom was to determine why the landlord did not increase the 
 rent.(c) Here, then, we have a most curious custom which 
 seems to have imposed restrictions upon the legal right of 
 the landlord to raise his rents, and we see that that custom 
 has by an act of the legislature become law. That this cus- 
 tom may have resulted from the fact that land increases in 
 value, without the interposition of landlord or of tenant, 
 an increase which some political economists have suggested 
 should be appropriated to the use of the state, but which has 
 in practice been found so inseparable and indistinguishable 
 from the increased value which has resulted from improve- 
 ments, which were by consent allowed to belong to the 
 tenant, that they have not been distinguished in proprietor- 
 ship, and hence the institution, it seems to us, of tenant-right 
 and the gradual limitation of the landlord's ownership. So 
 much for this curious experiment which possesses much 
 interest to the student of the science of jurisprudence. We 
 see here the transformation of custom into statute law. The 
 usual course has been to find custom creeping into the com- 
 mon law through the decisions of the courts, and it may be 
 useful to consider in this place, as preliminary to the main 
 purpose of this work, that branch of the common laws which 
 goes by the name of " customs," the thorough understanding 
 of which cannot fail to throw light upon the law of usage. 
 
 (c) See also as to this subject, Mr. land and the other provisions of 
 Isaac Butt's Treatise on the New Law the Landlord and Tenant Act, 1870. 
 of Compensation to Tenants in Ire- Dublin, 1871. 
 
CHAPTEE I. 
 
 OF CUSTOMS GENEKALLY. 
 
 1. OF CUSTOMS GENEEALLY. 19. 
 
 2. VALIDITY OF. 20. 
 
 3. COMMON LAW, HOW EVIDENCED. 21. 
 
 4. EVIDIfNCE OF GENERAL CUSTOM. 22. 
 
 5. THE SCOPE OF THE WOEK. 
 
 6. PAETICULAR CUSTOMS. 23. 
 
 7. GAVELKIND— EOEOUGH-ENGLISH — CUSTOMft 24. 
 
 OF MANOES— CUSTOMS OF LONDON. 
 
 8. CUSTOMS OF LONDON, HOW PEOVED. 25. 
 
 9. OTHEE CUST05IS HECOGNIZED. 26. 
 
 10. CUSTOMS OF MEECHANTS, WHEN MUST BE 
 
 PP.OVED. 27. 
 
 11. GENERAL AND LOCAL USAGES. 28. 
 
 12. GENEEAL USAGE. 29. 
 
 15. THE NAME " CUSTOM" TO BE APPLIED, WHEN. 30. 
 14. CUSTOM AND PEESCEIPTION. 
 
 16. VALIDITY' OF CUSTOM MUST BE ANCIENT. 
 
 16. MUST HAVE BEEN UNINTEEEUPTED. 31. 
 
 17. ILLUSTRATION. 
 
 18. ANALOGY BETWEEN CUSTOM AND LAN- 32. 
 
 GUAGE. 33. 
 
 DEVELOPMENT OF CUSTOMS— DEAD L.VWS. 
 
 PEACEABLE ENJOY'MENT. 
 
 IT. MUST BE EEA^ONABLE. 
 
 MEANING OF REA.SONABLE— PRIVATE INTER- 
 ESTS. 
 
 UNREASONABLE CUSTOMS, WHAT ARE. 
 
 CUSTOM CONTRAVENING LAW OF EMBLE- 
 MENTS. 
 
 CUSTOM MUST BE CERTAIN. 
 
 ILLUSTRATIONS OF CERTAINTY— VAGUE CUS- 
 TOMS. 
 
 CUSTOM MUST BE OBLIGATOEY'. 
 
 CUSTOMS MUST BE CONSISTENT. 
 
 CUSTOMS, HOW CONSTRX' ED— PRESUMPTION. 
 
 THE FORCE OF CUSTOMS- USAGE AND STATU- 
 TORY ENACTMENTS— IN lEEPEETATION BY- 
 CUSTOM. 
 
 CONFUSION AS TO MEANING OF " CUSTOM " — 
 CUSTOM AND C0M3I0N LAW. 
 
 HABITUAL LAW— USAGES. 
 
 CUSTOMS NOT COMMON LAW— EVIDENCE. 
 
 Of Customs Generally. 
 
 Sec. 1. Customs are said to be either, 1, General, or 
 those which prevail throughout the whole kingdom ; or, 2, 
 Particular, those which for the most part affect only the 
 inhabitants of a particular place, or the members of a par- 
 ticular class. Concerning general customs we need say little, 
 just because so much might be said. By these, wherever 
 they are applicable, the proceedings and determinations of 
 the ordinary courts of justice are guided and directed as to 
 the course in which lands descend by inheritance, the 
 method of acquiring and transferring property, the requi- 
 sites and obligations of contracts, the rules for the construction 
 of wills, deeds and statutes, and by these also the respective 
 remedies for civil injuries, and many other important par- 
 ticulars are settled and determined. The ordinary illustra- 
 tions of this regulating influence are, that the eldest son 
 alone is heir to his ancestor ; that a deed is of no validity 
 
 (6) 
 
OF CUSTOMS GENERALLY. 7 
 
 unless sealed and delivered ; that wills shall be construed 
 favorably, and deeds strictly ; that money lent upon bond is 
 recoverable by action of debt, and that breaking the public 
 peace is an offence punishable by fine and imprisonment. 
 
 Validity Of. 
 
 Sec. 2. But it is evident that these usages have received 
 the validity of recognition. They have been acknowledged 
 to exist by the judges of the several courts of justice. The 
 decisions of these judges are recognitions of prior facts, and 
 the way that these prior facts were dealt with, that is the 
 recognition of a custom.-^ In this way it has been held that 
 judges are the depositories of the laws, and living oracles. 
 They are bound by an oath to decide all cases according to 
 the law of the land, that is, according to the customs already 
 recognized ; and hence the fitness of those for the judicial 
 office who have derived extensive knowledge from wide 
 experience and accurate study. These judicial decisions, 
 then, are the most authoritative evidence of the existence of 
 such a custom as shall form part of the common law of the 
 land. In this way we find uncertain practice becoming cer- 
 tain and permanent rule, and that not on account of the 
 opinion of any judge, but upon the accumulated recognitions 
 of many ; not upon the promulgations of a new doctrine, but 
 on the maintenance and exposition of an old one. That this 
 is so is proved by the fact that where the determination 
 existing is contrary to reason, where the recognition of what 
 was thought a custom has been a recognition extorted by 
 false facts, or brought about by mistaken impressions, the 
 
 ^ There are various usages of trade Aidlings, 1 Pet. (U. S. C. C.) 230; 
 
 and commerce which have been so United States v. Arredondo, 6 Pet. 
 
 often proved as existing facts, and (U. S.) 715; Loper v. Bibble, 1 Ld. 
 
 have so far incorporated themselves Eay. 175; Wilcox v. Wood, 8 Wend, 
 
 into the general law, that the court (N. Y.) 266; Barnett v. Brunadae, 12 
 
 will take judicial notice of them. Ct. r. P. 787; Williams v. Williams, 
 
 Especially is this the case as to the Garth. 269; Carter v. Dawnish, Id. 82; 
 
 custom of merchants. Edie v. East Ershine v. Murray, 2 Ld. Ray. 1542, 1 
 
 India Co., 2 Burr. 1226 ; Consequa v. Co. Lit. 89a. 
 
8 OF CUSTOMS GENEEALLY. 
 
 judge is not to be bound by a former decision, but is to 
 vindicate the older law of common sense and reason as 
 manifested in conduct. Here he makes no new law in over- 
 ruling an antecedent decision, which if it was unjust or 
 unreasonable, was not law at all. He decides, that it is not 
 the established custom of the land, as has been erroneously 
 determined. Thus there is a truth in the saying that what 
 is not reason is not law. (a) 
 
 Common Law, How Evidenced. 
 
 Sec. 3. The decisions of courts of justice, then, are the 
 evidence of what constitutes the common law. Although 
 the circumstances of each case vary, the principles of many 
 are the same. Were it not so there never could have been 
 a custom, and consequently there never could have been a 
 law. It is thus the recognition of the unity of principle in 
 the variety of details which is the peculiar work of the lawyer 
 and the judge. Where, however, a new case has to be 
 decided, where analogy will not help as an authority or a 
 guide, the lawyer must have recourse to what is called his 
 discretion or common sense, which is, in fact, customary 
 reason — and decide according to his knowledge of the cus- 
 toms of mankind — which will include considerations of what 
 is just, what is expedient and what is sanctioned by a large 
 experience of public policy, (b) 
 
 Evidence of General Custom. 
 
 Sec. 4. There is one other kind of evidence of general 
 custom, as constitutive of the common law, and that is the 
 writings of Glanville, Bracton, Britton, Fleta, Hengham, 
 Littleton, Statham, Brooke, Fitzherbert, Stauudford and 
 Coke. The treatises by these writers are cited as authority, 
 and as evidence that cases formerly occurred in which the 
 points stated in these writers were determined in a certain 
 
 (a) Generally as to the authority of Legal Judgment, chap. 3. 
 of decided cases, see Kam's Science (&) See Co. Litt. 66a. 
 
OF CUSTOMS GENERALLY. 9 
 
 way — points which have in many instances become estab- 
 lished principles of English law. (c) 
 
 The Scope of this "Work. 
 
 Sec. 5. The subject of general customs clearly falls beyond 
 the scope of this work, except in so far as its consideration 
 may serve as a useful introduction to the answering of ques- 
 tions which will fall upder our cognizance in these pages ; 
 and except in so far as the principles which are the founda- 
 tion of these may serve to illustrate the principles which will 
 occupy our attention in connection with particular customs 
 and usages. 
 
 Particular Customs. 
 
 Sec. 6. The particular customs which form, what text 
 writers call, the second branch of the unwritten laws of 
 England, which are actually laws affecting the inhabitants 
 of a particular place or district, (c?) are also beyond the scope 
 which has been limited to us by our intention, and a men- 
 tion of these will be all that will be necessary in this place. 
 It is doubtless true that these particular customs, which are 
 contrary to the general law of the land, are the remains of a 
 multitude of local customs prevailing, some in one part, some 
 in another, over the whole country, while it was divided into 
 separate dominions. When these separate kingdoms become 
 united under one rule, a unity of custom was the inevitable 
 result, and this unity of custom was the cause of our uniform- 
 ity of laws. The history of law is parallel to the history of 
 race. And just as many races under one peaceful rule 
 
 (c) Sir Henry Sumner Maine has tion of written law by successive 
 
 some curiously interesting specula- commentators, tends to improve and 
 
 tions upon the influence which sue- liberalize a system of jurisprudence 
 
 cessive comments of Jurisconsult more than the English method of 
 
 upon Jurisconsult have had in devel- what may be called " Natural Selec- 
 
 oping the law, in his work upon tion " or by decided oases. The 
 
 "Village Communities" (Sec. 2), in reader may consult that able work 
 
 which he endeavors to explain how with advantage, 
 
 it comes about that the interpreta- (d) See Co. Litt. 110b. 
 
10 OF CUSTOMS GENERALLY. 
 
 will become one race — representing in a modified form the 
 peculiarity of each — so many systems of laws — or those 
 hypotheses of laws, or provisional laws, customs — will under 
 one rule become one system, which will have the modified 
 characteristics of many of the systems from which it derived 
 its origin. But, further, just as in ethnology, we discover 
 instances in which a race, even under the most favorable 
 conditions, has remained distinct and separate in the midst 
 of another race, although living under a common rule and 
 associated in peace, in intercourse, and in commerce, so we 
 find in the study of jurisprudence that certain customs, or 
 systems of laws, have remained separate and distinct in the 
 midst of a wide and uniform law, and have retained their 
 characteristic peculiarities in spite of many conditions which 
 favored an amalgamation and a unification of these various 
 systems. These so-called customs have in many cases been 
 confirmed to the districts which have the privilege of enjoy- 
 ing them by various Acts of Parliament, (e) 
 
 Gavelkind — Borough-English— Customs of Manors— Customs of 
 London. 
 
 Sec. 7. Amongst these we find the custom of Gavelkind 
 in Kent, and in some other parts of the kingdom (though, 
 perhaps, it was general until the time of the Norman Con- 
 quest), by which, amongst other things, all the sons, and not 
 the eldest only, succeed to their father's inheritance, (/) and 
 by which, though the ancestor be attainted and hanged, the 
 heir, nevertheless, succeeds to his estates without any escheat 
 to the lord;(^) and the custom which prevails in divers 
 ancient boroughs and which is therefore called Borough- 
 English, by which the youngest son inherits the estate in 
 preference to all his elder brothers — the custom in other 
 boroughs which entitles a widow to all her husband's lands 
 
 (e) Mag. Cart. 9 Hen. 3, o. 9 ; 1 (/) Co. Litt. 140a. 
 
 Edw. 3, St. 2, c. 9; 14 Edw. 3, st. 1, (^) See as to Gavelkind, Sandy's 
 
 c. 1; 2 Hen. 4, c. 1. Co7isuettt.dinis Raneix. 
 
OF CUSTOMS GENERALLY. 11 
 
 for her dower, instead of only one-third part, to which alone 
 she is entitled under the common law.(/i) Amongst these 
 also are the special and particular customs of manors, of 
 which every one has more or less, and which bind all the 
 copyhold and customary tenants that hold of the said 
 manors ;(*) and also the many particular customs which 
 exist within the city of London, and which have reference 
 to trade, apprentices, orphans, widows and many other mat- 
 ters, (it) These last are conformed by Act of Parliament. (Z) 
 
 Customs of London, How Proved. 
 
 Sec. 8. These, then, are the customs to which the term is 
 most frequently applied, although, it seems to us, that such 
 an exclusive application of the word is calculated to confuse 
 and mislead. Such customs as Gavelkind and Borough- 
 English have been noticed by law,(m) and there is now no 
 need to jsrove the nature of such customs, but only that the 
 lands in question are subject to them. When the customs 
 of London, such as the custom of foreign attachment, (71) the 
 custom that every shop is a market overt for goods of the 
 same kind as are usually sold there ;(o) the custom that 
 married women may be sole traders ;(jo) the custom as to the 
 distribution of the effects of intestate freemen ; (q) and the 
 custom which defines the nature of a liveryman's office, (r) 
 are called in question at a trial, their existence is to be 
 
 (h) See the -History of Boroughs, Car. 347 ; see also PulHng on The 
 
 by Merewether and Stephens. Laws and Customs of London. 
 
 (i) See Scriven on Copyhold and (m) Co. Litt. 175. 
 
 Customary Freehold. (ra) Certified by Starkey in 22 Edw. 
 
 (k) See Pulling on The Laws and 4. See 1 Roll. Abr. 554 (K.) 5; 
 
 Customs of London. Bradbee v. Bi-uce Y.Wait,! M. & G. 39; Q-osby 
 
 Christ's Hospital, 2 D. N. S. 164 ; 5 v. Hethenngton, 4 M. & G. 933. 
 
 Scott N. E. 79 ; ArnoU v. Poole, 4 M. (o) Certified by Sir E. Coke, 5 Eep. 
 
 & G. 860; 5 Scott N. R. 761; Bui- 83b, and in Moore 360. See also 
 
 broke v. Goodeve, 1 W. Bl. 669 ; Lyons Lyons v. De Pass, 11 A. & E. 326. 
 
 V. De Pass, 3 P. & D. 177 ; 11 A. & E. [p) Lavie v. Phillips, 3 Burr. 1776. 
 
 326 ; 9 C. & P. 68. iq) Bruin v. Knott, 12 Sim. 452. 
 
 [l) See the City of London's case, 8 (r) King v. Clerk, 1 Salk. 349. 
 Eep. 126 ; The King v. Bayshaw, Cro. 
 
12 OF CUSTOMS GENERALLY. 
 
 decided, not by a jury, but by a certificate from the Lord 
 Mayor and aldermen by the mouth of their recorder, (s) 
 except in the case where the custom was of such a nature as 
 that the corporation is itself interested ; under siach circum- 
 stances the question is tried, not by certificate, but by a 
 jury, for " the law permits them not to certify on their own 
 
 behalf." (0 
 
 Other Customs Recognized. 
 
 Sec. 9. Some other customs, such as the custom or law 
 of the road — viz., that horses and carriages should respec- 
 tively keep on the near or left side;(?i) or that ships and 
 steamboats on meeting should port their helms so as to pass 
 on the port side of each other ;(^') or that steamboats navi- 
 gating narrow channels should, whenever it is safe and 
 practicable, keep to the starboard, or right side of the fair- 
 way(w) — will be recognized by the judges without proof 
 
 Customs of Merchants, When Must be Proved. 
 
 Sec. 10. Many writers exclude from the term custom 
 those rules relative to bills of exchange, partnership and 
 other mercantile matters, which have been classed under the 
 head "custom of merchants" by Blackstone, (a;) on the ground 
 that their character is not local, and that their binding force 
 is not confined to a particular district. It has been remarked 
 that the Law Merchant is in truth only a part of the general 
 law of England, (y) and that courts of law must take notice 
 
 (s) Applelon v. Loughton. Cro. Car. Tkirley v. Thomas, 8 C. & P. 104, per 
 
 616 ; see also Pulling, Laws and Cus- Coleridge, J. 
 
 toms of London, p. 11; Hartop v. (v) 17 & 18 Vict. c. 104, sec. 296. 
 
 Hoare, 1 Wils. 8 ; 2 Stra. 1187 ; Blac- (ic) 17 & IS Vict. c. 104, ss. 297, 
 
 quire v. Hawkins, 1 Dough. 378 ; 298, 299. See Morrison v. Gen. Steam 
 
 Plwnmer v. Bentham, 1 Burr. 248; Nav. Co., 8 E.xch. 733; Gfn. Steam- 
 
 Oi-osby V. Hetherington, 5 Scott N". K. Nav. Co. v. Morrison, 13 C. B. 581. 
 637 ; 12 L. J. C. P. 261 ; Pi2m- v. Chap- (x) 1 Com. 75. 
 pell, 14 M. & ^^^ 624. (y) Per Holt, C. J., Hussy v. Jacob, 
 
 {t) Day V. Savadge, Hobart's Rep. Ld. Raym. 88; per Forster, J., Edie ■ 
 
 85. V. East India Co., 2 Burr. 1226 ; 1 
 
 (it) See Leame v. Bray, 3 East 593; Bl. Rep. 299, S. C, 2 Inst. 58; Stone 
 
OF CUSTOMS GENERALLY. 13 
 
 of it as such. Doubtless where the custom of merchants is 
 established and settled by known decisions, it is " the general 
 law of the kingdom," and ought not to be left to a jury after 
 it has been already settled by a judicial determination. (z) 
 But there are some questions the decision of which depends 
 upon the customs amongst merchants, which have not 
 hitherto met with judicial recognition, and in such cases 
 it is fit and proper to take the opinions of merchants 
 thereon, (a) In former times it was not uncommon for 
 judges to confer, touching points of mercantile law, with 
 those persons who might be supposed to be conversant with 
 it, and it is said that Lord Chancellor Hardwick adopted 
 this course in the case of Kruger v. Wilcox ;{b) and that 
 Lord Mansfield followed his example in a case iu which a 
 question of some importance had arisen upon a sea policy of 
 insurance, (c) 
 
 General and Local Usages. 
 
 Sec. 11. The mercantile law consists of general and local 
 usages, and these are easily distinguished, although they not 
 unfrequently pass into one another. Thus it is that many 
 local customs which prevail at the present time in a particu- 
 lar market or at a particular port, may at one time have 
 been general customs ; while some of the customs that are at 
 the present time universal in the trade and commerce of this 
 country must have been confined to much narrower limits. 
 A local custom may, as we shall hereafter see, by being 
 
 V. Rawlinson, Willes 561 ; see also questions depending; upon customs 
 
 Benson v. Chapman, 8 C. B., N. S. 967, amongst merchants, where if there 
 
 note; see Cooh^ndorfer v. Preston, 4 is a doubt about the custom it may 
 
 How. (U. S.) 317 ; and see Magill v. be fit and proper to take the opinion 
 
 Brown, Bright (Penn.) 346, 365. of merchants thereupon; yet that is 
 
 [z) Per Forster, J., 2 Burr. 1226; only where the law remains doubt- 
 see also what Buller, J., said in Lick-' ful, and even then the custom must 
 harrow v. Mason, 2 T. R. 73. be proved by facts, not by opinion 
 
 (a) Per Wilmot, J., Edie v. East only." Bing. in Adde. 
 
 India Co., 2 Bmi. 122S. That judge (6) Ambler 252. 
 
 said : " There may indeed be some (c) Vallejo v. Wheeler, 1 Cowp. 143. 
 
14 OF CUSTOMS GENERALLY. 
 
 tacitly incorporated with a contract, be, in point of fact, a 
 law to the parties contracting ; yet, it is evident that when 
 such a custom is relied upon it must be proved before the' 
 court will take notice of it. 
 
 General Usage. 
 
 Sec. 12. A general usage, when it has been ascertained 
 and established, becomes a part of the Law Merchant, which 
 courts of justice "are," in the words of Lord Campbell, 
 "bound to know and to recognize." ((^) "Such," he went 
 on to say, " has been the invariable understanding and prac- 
 tice in Westminster Hall for a great many years, there is no 
 decision or dictum to the contrary ; and justice could not 
 be administered if evidence were required to be given toties 
 quoties to support such usage if issue might be joined upon 
 them in each particular case." 
 
 The Name "Custom" to be Applied, When. 
 
 Sec. 13. So far, then, as the usage of merchants has been 
 judicially ascertained and established, so far as it has become 
 the acknowledged law of the land, it has, it seems to us, ceased 
 to deserve the name of custom, just as much as Gavelkind or 
 Borough-English ;(e) but where a general custom exists 
 
 [d] Bmndcio v. Barnett, 12 CI. & F. adopting it, it becomes thereupon a 
 
 805. The words of his lordship show part of the law of the land of which 
 
 that the principle of utility has been the courts will take judicial notice, 
 
 at work in this natural selection of Bank of Columbia v. Fitzhugh, I H. 
 
 laws from a variety of customs. & G. (Md.) 239; Branch v. Burnley, 
 
 ■"Those customs,'' he says, "which 1 Call (Va.) 159; Consequa v. Wil- 
 
 have been universally and notori- lings, ante. When either a custom 
 
 ously prevalent amongst merchants, or usage has been saved by statute, 
 
 and have been found by experience it has all the form of an express 
 
 to be of public use have been adopted statute and will control all affirma- 
 
 hy it (the Law Merchant) upon a live statutes in opposition to it, but 
 
 principleof convenience, and for the it must always yield to a negative 
 
 benefit of trade and commerce ; and one. Mitchell v. United States, 9 Yet. 
 
 where so adopted it is unnecessary (U. S.) 712. 
 
 to plead and prove them." Thus a (e) See an American case, Cooken- 
 
 custom of merchants is at first dorfer v. Preston, 4 How. 317, and see 
 
 proved by their testimony ; but when Magill v. Brown, Bright. 346. 
 ■once decisions are made thereon 
 
OF CUSTOMS GENERALLY. 15 
 
 amongst merchants which has not been judicially recognized, 
 or particular usage exists in a particular market, which must 
 be proved at Nisi Prius by the person who wishes to avail 
 himself of it, it seems equally clear that the term custom is 
 applicable, and that the laws of validity and rules of proof 
 which we have to consider in this work are thoroughly appo- 
 site. But on the same principle, that the obligation of a 
 particular custom must be confined to a particular district, it 
 has been said that the usages of particular trades, when not 
 restricted to some particular limits, but extended to the 
 realm at large, cannot with propriety be considered as cus- 
 toms in the technical sense of that term.(/) Here also a 
 usage of immemorial observance, which has received judicial 
 sanction, becomes part of the general law of England, just as 
 much as if it were incorporated in an act of Parliament it 
 would become part of the statute law. These seem to us to 
 be undeserving of the appellation customs, which we would 
 reserve for law when it is being modelled in clay — so to 
 speak — and before it has been transferred to the marble. (^) 
 Custom seems to us to be applicable to the law before it has 
 been recognized as law, but when it is in a condition to claim 
 judicial sanction, whether that sanction is authenticated by 
 judicial decision or by legislative enactment. Our object, 
 then, in the following pages is to state the law which is 
 applicable to such usages and customs ; the rules of evidence 
 which will enable the practitioner to determine the existence 
 of an alleged custom ; the rules of law which will enable 
 him to determine its legality, when its existence is estab- 
 lished; and the rules which will enable him to put the 
 correct legal construction upon it. The importance of this 
 
 (/) Co. Li tt. 115b. jointed pair of compasses, and chisel 
 
 [g) It may be known to most read- work to transfer the outlines to the 
 
 ers that the method of sculpture as marble. The moulding is the work 
 
 practiced at the present time, is to of the sculptor; the cutting of the 
 
 mould the figure in clay, and by marble can be accomplished by ordi- 
 
 meaus of what may be called a many- nary uugifted workmen. 
 
16 OF CUSTOMS GENERALLY. 
 
 inquiry can be measured by the frequency with which cases 
 involving the discussion of the admissibility of parol evi- 
 dence of custom or usage to vary, add incidents to, or explain 
 the meaning of written contracts, come before courts of law. 
 
 Custom and Prescription. 
 
 Sec. 14. We purpose in the first place to set out succinctly 
 the rules which apply to the validity of a custom, and before 
 doing so it may be well to distinguish between custom and 
 prescription, which are not unfrequently confounded, and 
 the appreciation of the disparity in principle which exists 
 between them will conduce to the better understanding of 
 each. (A) Prescription seems to us to be the making of a 
 right, custom the making of a law. Prescription has its 
 meaning in the volition of an individual, while custom has 
 its meaning in the wills of a large number of individuals. 
 Prescription is creative of a right which gets its sanction 
 from law, custom is creative of a law which gives its sanc- 
 tion to rights. It will be seen that these two are clearly 
 distinguishable, and the confusion which has existed in 
 some minds can scarcely be accounted for. The fact that it 
 existed, and not any good grounds for its existence, has 
 necessitated this explanation, (i) 
 
 (h) The distinction between cus- right is available at all, it naust be 
 
 torn and prescription, which has set up and established as a presump- 
 
 been drawn before, will be found to tive right belongitig to some estate, 
 
 be parallel to the one given in the and must be pleaded with a que 
 
 text. According to it, custom is a estate. Lufkin v. Haskell, 3 Pick. 
 
 local usage not annexed to any per- (Mass.) 356 ; Littlefield v. Maxwell, 31 
 
 son, whereas prescription is merely Me. 134. Thus, in an action quare 
 
 a personal usage, as that L. and his clausum /regit, the defendant relied 
 
 ancestors or those whose estate he upon a custom that all the inhabi- 
 
 has, have used time out of mind to tants of a certain town and manor, 
 
 enjoy a particular advantage or for. the time being, had a right to 
 
 privilege. 2 Bla. Com. 263 ; per depasture the uninclosed woodlands 
 
 Cur., Mayor of Lyme Regis v. Taylor, of individual proprietors within the 
 
 3 Lev. 160. town, and it was held that this was 
 
 (i) A custom to take anything not a mere easement, but a right to 
 
 from the soil of another, or a profit take a profit, and implied a qualified 
 
 a prendre, is not lawful. If such a possession, and that such a custom.- 
 
OF CUSTOMS GENERALLY. 
 
 17 
 
 Validity of: Custom must be Ancient. 
 
 Sec. 15. The rules which bear upon the validity of a 
 custom are these : 1. It must have been used so long that the 
 memory of man runneth not to the contrary, (j) Thus, if an 
 usage can be shown to have commenced, it is void as a 
 custom, and that upon grounds which will recommend them- 
 selves as reasonable. Of course, every custom must have 
 had a commencement, but if we can discover its inception, 
 then we discover the individual by whose particular will the 
 
 ary right was void. To establish 
 such a customary right, the court 
 also held that the proof should be 
 no less than that required to estab- 
 lish a right by prescription. " The 
 entry or use," say the court, " must 
 have been adverse or hostile to the 
 true owner in its commencement, 
 and it must have been used and 
 enjoyed under a claim of right, and 
 continued uninterrupted for a length 
 of time sufficient to have an entry. 
 Smith V. Floyd, 18 Barb. (N. Y.) 523. 
 A (!UStom to take fish or to take 
 sand to mix with lime for the pur- 
 pose of making mortar in alieno solo, 
 is void. Waters v. Lilly, 4 Pick. 
 (Mass.) 145; Perley v. Langley, 7 N. 
 H. 233. Holding that a right to fish 
 on another's land is aprq/ii dprendre. 
 See Wickliam v. Hawker, 7 M. & W. 
 63 ; Herbert v. Laughluyn, Crob. Car. 
 492. So is a custom to pile wood on 
 another's land. Littlefield v. Maxwell, 
 31 Me. 134. So is a custom for all 
 the citizens of the State to take sea- 
 weed thrown upon the shore of 
 another's lands. Kenyan v. Nichols, 
 1 R. I. 106 ; Nudd v. Hobbs, 17 N. H. 
 524. The ground upon which the 
 last two cases is based, is that the 
 sea-weed, when so thrown upon the 
 land, belongs to the owner of the 
 soil, and in Knowles v. Dow, 22 N. H. 
 
 387, it was held that a custom for 
 tlie inhabitants of a town to haul 
 sea-weed from the margin of the 
 water and deposit it upon another's 
 land, and haul it away when conve- 
 nient, is not void. But it would 
 seem that the doctrine of this case 
 is inconsistent with the doctrine of 
 Littlefield v. Maxwell, ante, and really 
 amounts to the establishment of the 
 rule that a custom is admissible to 
 justify a trespass. A license to enter 
 on land and fish, cannot be implied 
 bj' a usage or custom in the country 
 at large, for every person to enter 
 on such land to take fish. Winder 
 v. Blake, 4 Jones (N. C.) L. 332. In 
 Codman v. Evans, 5 Allen (Mass.) 
 308, it was held that an owner of 
 land may maintain an action for the 
 erection of a bay-window which 
 extend.* over his line, by the adjoin- 
 ing owner, although that portion of 
 his land which is covered by the 
 bay-window has been laid out and 
 is used as a highway ; and evidence 
 of a custom so to erect bay-windows 
 is inadmissible. 
 
 [j] The time of legal memory has 
 received a technical limitation, and 
 refers to so early a date as the com- 
 mencement of the reign of King 
 Richard the First. Co. Litt. 115a. 
 
18 OF CUSTOMS GENERALLY. 
 
 custom had its birth ; but that discovery negatives its exist- 
 ence as a custom which cannot have its origin in the impo- 
 tent act of any particular individual, but in the will of the 
 whole. No one man can be allowed to make a law. If, 
 however, all evidence of the commencement of a custom is 
 wanting, the proof that it has been practised for a long time, 
 and that it has been observed as far back as the memory 
 reaches, will amount to presumptive proof of its having pre- 
 vailed during the whole period of legal memory. (Jc) In such 
 cases, and from modern usage, the jury ought to be 
 instructed that they would be warranted in presuming that 
 the right is immemorial, unless there is evidence that fairly 
 rebuts it.^ And where a custom is once shown to have 
 existed, it is presumed that it still exists, unless there is 
 evidence disproving its existence.^ A right obtained by 
 custom or immemorial usage is disproved by proof that the 
 claimant's grantors or ancestors conveyed it away within the 
 statutory period;* but a right of this character, incident to 
 an estate, cannot be disproved by evidence that a tenant in 
 possession declared that he had no such right, because even 
 the tenant cannot be heard to derogate from his landlord's 
 title.^ The law, however, with reference to the principle 
 which requires the proof of immemoriality in support of a 
 custom, has been modified to a considerable extent by the 
 statute 2 & 3 Will. 4, c. 71, which provides as to customary 
 and prescriptive claims of rights to be exercised over the 
 land of other persons (such as the rights of common, or way, 
 or use of light), that they shall be considered as suflSciently 
 established by an uninterrupted enjoyment as of right, in 
 
 (h) Rex V. Joliffe, 2 B. & C. 54 ; Jm- 196, S. C, 2 E. & B. 428 u. ; see, also, 
 
 kins V. Harvey, 1 Or. M. & R. 877; Duke of Beaufort v. Smith, 4 Exch. 
 
 cited Master Pilots, &a., of Neiueastle- 450; Simpson v. Wells, 7 L. R. Q. B. 
 
 upon-Tyne v. Bradley, 21 L. J. Q. B. -214. 
 
 ^ Jenkins v. Harvey, 1 Gale 23 ; also, * Aulcome v. Upton, 5 Moll. 398. 
 
 2 a M. & J?., 383. 5 Papendick v. Bridgewater, 5 El. & 
 
 3 Scales V. Key, 11 Ad. & El. 819. Bl. 166. 
 
OF CUSTOMS GENERALLY. 19 
 
 some cases for thirty, in others for twenty, years, and shall 
 not be defeated (where such enjoyment can be proved) by 
 showing that they commenced within the time of legal 
 memory. (/) In this country such rights may be obtained 
 by an adverse user for the period fixed by the statute for 
 obtaining title by an adverse occupancy, which varies in the 
 different States. In order to ascertain whether such a right 
 exists or not, the question is simply, whether the right has 
 been uninterruptedly exercised adversely for the statutory 
 period. 
 
 Must have been Uninterrupted. 
 
 Sec. 16. 2. A custom, in order to be valid, must have been 
 continued. If a custom ceased and re-commenced, its new 
 beginning would be within the memory of man, and would 
 be due to the will of an individual, which would exclude it 
 from the definition of a custom, and make any usage subject 
 to such a lapse void as a custom. But an interruption which 
 is to prove valid as against a custom, must be an actual 
 interruption of the usage, and not simply an interruption of 
 the possession of the right, (m) 
 
 Illustration. 
 
 Sec. 17. One of the common illustrations will serve to 
 make this clear. Thus, if the inhabitants of a parish have 
 a customary right to water their cattle at a certain pool, a 
 
 (I) See, as to statute, Shuttleworth Oelrichs v. Ford, 23 How. (U. S.) 49; 
 V. Le Fleming, 19 C. B. N. S. 687 ; BoioUng v. Harrison, 6 Id. 259 ; Col- 
 li Jur. N. S. 840 ; Hanmer v. Chance, lings v. Hope, 3 Wash. (U. S. C. 0.) 
 11 Jur. N. S. 397; 34 L. J. Chanc. 149; Troit v. Wood, 1 Gall. (U. S.) 
 413. Upon this see Mr. Shelford's 443; McGregor v. Ins. Co., 1 Wash, 
 notes in his edition (7tli) of the Real (U. S. C. C.) 39; Strong v. Carrington, 
 Property Stats., pp. 2, 6. 11 Am. L. R. 287 ; Martin v. Del. Ins. 
 
 (m) Co. Litt. 114. In order to be Co.. 2 Wash. (U. S. C. C.) 254; Smith 
 
 obligatory, a custom must be uni- v. Gibbs, 44 N. H. 335; Rapp v. 
 
 form, and always applicable in a Palmer, 3 Watts (Penn.) 178; Com. 
 
 o-iven case, otherwise it cannot be v. Malloy, 57 Pemi. St. 291 ; United 
 
 presumed that the parties knew of States Y.Buchanan, 8 How. (U. S.) 83. 
 and contracted in reference to it. 
 
20 OF CUSTOMS GENEEALLY. 
 
 mere discontinuance of the practice for ten years would not 
 destroy the custom, although it would add to the dijB&culties 
 of proving its existence. If, however, the right be discon- 
 tinued for a single day, that would prove the non-existence 
 of any asserted custom analogous with the right. But it 
 must be remembered that the existence of a custom depends 
 upon proof, and that the discontinuance of a custom, as it 
 tends to increase the difficulties of proof, tends also, to that 
 extent, to the abolition of the custom. It cannot be doubted 
 that a custom can be abrogated by a custom, and that many 
 of the usages which at present exist are built upon the ruins 
 of forgotten customs. • That these antecedent customs which 
 differ from our present practice or common habit must be 
 forgotten, to render our present custom valid, is evident — 
 otherwise the custom which is now in vogue would not have 
 that element of antiquity and immemoriality to which we 
 have already alluded. But as the acts of some make a law, 
 so can the acts of some abrogate it. "A custom," said 
 Tindal, C. J., in his judgment in Tyson v. Sinith,{n) " comes 
 at last to an agreement which has been evidenced by repeated 
 acts of assent on both sides from the earliest times, before 
 time of memory, and continuing down to our own times, that 
 it has become the law of a particular place." 
 
 Analogy Between Custom and Language. 
 
 Sec. 18. There is a curious analogy between customs and 
 language which we shall have to point out more than once 
 with the view to elucidation and illustration. Language is 
 for the expression of human thought, and in that it is so it 
 is also a record of the past effort of human intelligence. 
 Custom, whicb has arisen from human practice, from the 
 factual language of transactions, is not only a record of 
 the past conduct of men, but is at the same time a vehicle 
 for the expression of intention to those who find usage ready 
 to their hand. But there is a close analogy between the 
 
 (n) 9 A. & E. 406, at p. 426. 
 
OF CUSTOMS GENERALLY. 21 
 
 two, As language has passed from unity to diversity and 
 variety, so has law passed from a central unity into a scat- 
 tered and careless variety of custom, so that every place has 
 its particular law of custom. "Dialects," says Grimm, 
 " develop themselves progressively, and the more we look 
 backward in the history of language the smaller is their 
 number and the less definite their features. All multiplicity 
 arises gradually from an original ^unity."(o) 
 
 Development of Customs — Dead Laws. 
 
 Sec. 19. Might we not apply almost the same true words 
 to customs^which in our estimation bear an exactly similar 
 relation to a system of law that dialects do to a language — 
 that the great German philologist has applied to dialects, 
 and say that customs have developed themselves progres- 
 sively, and that the unity which we find in the history of 
 jurisprudence has been developed into the variety of customs 
 which we find at the present time. This capability of change 
 in law is not an indication of its inferiority, but of its vitality. 
 So long as men progress, so long as new events happen, new 
 trades arise, new commerce floats upon hitherto unsailed seas, 
 new manufactures change the features of our lives, and new 
 and higher principles take the place of those which governed 
 conduct, regulated acts and guided life, so long must we 
 expect progressive change and almost lavish variety in our 
 customs. When a people is dead, when there are no trans- 
 actions to be governed, no rights to protect, no interests to 
 regard, the law may remain unchanged, for the law is dead. 
 We have indeed dead laws just as we have dead languages, 
 and the words of Professor Max Miiller, which are spoken 
 with regard to the life of a language, are equally applicable 
 when applied to a system of laws. "As soon," he remarks, 
 " as a language loses its unbounded capability of change, its 
 carelessness about what it throws away, and its readiness in 
 always supplying instantaneously the wants of the mind and 
 
 (o) Geschichte der Deutschen Sprache, s. 833. 
 
22 OF CUSTOMS GENERALLY. 
 
 heart, its natural life is changed into a merely artificial exist- 
 ence." (p) We cannot blame ourselves for this digression if 
 it enables the reader more thoroughly to appreciate the rela- 
 tion which exists between custom and law, if it enables him 
 to understand that customs are, as it were, the feeders of law, 
 and that there is always a slow process of customary regenera- 
 tion going on, which will be observable to the diligent student 
 of legal history, and which makes up for gradual decay of 
 law which is going on pari passu, and which results from 
 the gradual tendency that almost every fixed enactment has 
 to become obsolete. 
 
 Peaceable Enjoyment. 
 
 Sec. 20. A custom must have been peaceably enjoyed and 
 acquiesced in to be valid. If it has been the subject of 
 contention and dispute it has not recommended itself as 
 expedient to all, and the fact that it has proved a conveni- 
 ence to some is counteracted by the fact that it has also 
 proved an inconvenience to many. But the non-consent of 
 these is as powerful as the consent of those ; and as customs, 
 to be valid, owe their efficacy to common consent, the fact 
 that they have been immemorially disputed proves that that 
 universal consent was wanting. 
 
 (p) " I very much doubt," said Mr. their side alike the convictions and 
 
 Disraeli in his speech on the Irish the prejudices of men. They are 
 
 Land Bill (33 & 84 Vict. c. 46), "the spontaneous. They grow out of 
 
 propriety, as a general principle, man's necessities and inventions, 
 
 of legalizing customs. The moment and as circumstances change and 
 
 you legalize a custom you fix its par- alter and die off, the custom falls 
 
 ticular character; but the value of a into desuetude and we get rid of it. 
 
 custom is its flexibility and that it But if you make it into a law, cir- 
 
 adapts itself to all the circumstances cumstances alter, but the law remains 
 
 of the moment as of the locality. and becomes part of the obsolete 
 
 All these qualities are lost the legislation which haunts our statute 
 
 moment you crystallize a custom book and harasses society.'' (Han- 
 
 into legislation. Customs may not be sard's Debates, vol. 199, p. 1806, 
 
 as wise as laws, but they are always delivered 1 1th March, 1870.) 
 more popular. The}' array upon 
 
OF CUSTOMS GENEBALLY. 
 
 23 
 
 It Must be Reasonable. 
 
 Sec. 21. It must be reasonable, (g-) Or as it is perhaps 
 better to put it negatively, it must not be unreasonable, (r) 
 We shall see hereafter that the words " not unreasonable " 
 
 (q) Tanistry's case. Sir J. Davis' 
 Eep. 82; Hilton v. Earl Ch-anville, 5 
 Q. B. 701; Wilkes v. Broadbent, 1 
 Wils. 63. The true office of a usage 
 or custom is to interpret the other- 
 wise indeterminate intentions of 
 parties, and to ascertain tlie nature 
 and extent of their contracts, arising 
 not from express stipulation, but 
 from mere implications and pre- 
 sumptions, and acts of a doubtful 
 or equivocal character ; or to ascer- 
 tain the true meaning of particular 
 words in an instrument, where those 
 words have various senses. Per 
 Story, J. The Reeside, 2 Sum. (U. S.) 
 569; see, also, Macomber v. Parker, 
 13 Pick. (Mass.) 182; Lawrence v. 
 McGregor, 5 Ham. (Ohio) 311 ; Samp- 
 son V. Gazzam, 6 Port. (Ala.) 123. In 
 doubtful cases, usage may be re- 
 curred to in order to ascertain the 
 meaning of the legislature. Polk v. 
 HiU, 2 Overt (Tenn.) 157. It may be 
 shown for the purpose of explaining 
 a clause of doubtful construction in 
 a policy of insurance or other con- 
 tract, usage being the safest guide to 
 the intention of the parties. But it 
 can be resorted to only when the 
 law is doubtful or unsettled. Win- 
 throp V. Union Ins. Co., 2 Wash. (U. 
 S. C. 0.) 7; see, also, Harris v. Nicli- 
 olas, 5 Munf. (Va.) 483 ; United States 
 V. Macdaniel, 7 Pet. (U. S.) 1; Mur- 
 ray V. Hatch, 6 Mass. 477; Ooit v. 
 Commercial Ins. Co., 7 John. (N. Y.) 
 385 ; Allegre v. Maryland Ins. Co., 2 
 G. & J. (Md.) 136 ; Rankin v. Ameri- 
 can Ins. Co., 1 Hall (N. Y.) 619. It 
 is not admissible to contradict or 
 substantially vary the legal import 
 
 of a written agreement; and it is 
 never admitted for this purpose, nor 
 considered to be of this character. 
 Renner v. Bank of Columbia, 9 Wheat. 
 (U. S.) 581 ; Rankin v. American Ins. 
 Co., 1 Hall (N. Y.) 619; Sleght v. 
 Rhinelander, 1 John. (N. Y.) 192. In 
 order to make it operative it must 
 be certain, uniform and reasonable. 
 Per Washington, J. Collings v. Hope, 
 3 Wash. (Penn.) C. C. 160; S. P. 
 Rapp v. Palmer, 8 Watts (Penn.) 178 ; 
 Thomas v. Ch-aves, 1 Rep. Con. Ct. 
 308; Thomas v. O'Hara, 1 Con. Ct. 
 (S. C.) 303 ; Chastain v. Bowman, 1 
 Hill (N. Y.) 270; Trott Y.Wood, 1 
 Gall. 443 ; Lewis v. Thatcher, 15 Mass. 
 433; United States v. Duval, Gil. 356; 
 Barksdale v. 6rown, 1 N. & M. (S. C.) 
 519 ; Buck v. Grimshaw, 1 Edw. Ch. 
 147 ; Smith v. Wright. 1 Cai. (N. Y. ) 45 ; 
 Somerby v. Thompson, Wright (Ohio) 
 573 ; Consequa v. Willings, Pet. C. C. 
 230 ; Touro v. Cassin, 1 N. & M. (S. 
 C.)176; Davis y. New Brig, G\\.[V.Q.) 
 486. When the custom of a particu- 
 lar place is established as stated, it 
 may enter into the body of a con- 
 tract without being inserted. Per 
 Tilghman, C J. Stultz v. Dickey, 5 
 BJnn. (Penn.) 287; S. P. Lodwicks v 
 Ohio Ins. Co., 5 Ham. (Ohio) 436: 
 Sewall V. Gibbs, 1 Hall (N. Y.) 612: 
 Barber v. Brace, 3 Conn. 9; 2 Pet 
 (U. S.) 148; Bank of Columbia v, 
 Fitzhugh, 1 H. & G. (Md.) 239 ; Haven 
 V. Wentworth, 2 IST. H., 93; Uiiited 
 States V. An-edondo, 6 Pet. (U. S.) 715 ; 
 Sampson y. Gazzam, 6 Port. (Ala.) 123. 
 (r) 1 Bla. Com. 77 ; Hix v. Gardi- 
 ner, 2 Bulstr. 195. 
 
24 OF CUSTOMS GENERALLY. 
 
 must be understood in a legal sense, or that in coming to a 
 conclusion as to what customs are reasonable and what 
 unreasonable, regard must be had to the legal decisions 
 which have been made in times past upon cases involving a 
 similar question. " Reasonable," says Sir Edward Coke, " is 
 not always to be understood of every unlearned man's reason, 
 but of the artificial and legal reason warranted by authority 
 of law." (s) 
 
 Meaning of Reasonable— Private Interests. 
 
 Sec. 22. Thus it comes that a custom may be good, though 
 the particular reason of it cannot be assigned ; for it suffices, 
 if no good legal reason can be assigned against it. A cus- 
 tom is not unreasonable merely because it is contrary to a 
 particular rule or maxim of the common law, otherwise 
 Gavelkind and Borough-English, which are directly con- 
 trary to the ordinary law of descent, or the custom of Kent, 
 which is contrary to the law of escheats, would not be valid 
 customs ; indeed it is the very essence of a custom that it 
 should vary from the common law.(^) Nor is a custom 
 unreasonable because it is prejudicial to the interests of a 
 private man,('M) if it be for the interests of the common- 
 wealth ; as, for instance, the custom to turn the plough up 
 on the headland of another, which is for the good of hus- 
 bandry, or to dry the nets on the land of another, which is 
 in favor of fishing, and for the benefit of navigation, (i;) 
 
 Unreasonable Customs, What Are. 
 
 Sec. 23. A custom which is injurious to the public, which 
 is prejudicial to a class, and beneficial only to a particular 
 individual, is repugnant to the law of reason. No such cus- 
 
 (s) Co. Litt. 62, but see as to usages, Marquis of Salisbury v. Gladstone, 9 
 
 Paxton V. Conrtnay, 2 F. & P. 131. H. of L. cases, 692. 
 
 {t) Horton v. Beokman, 6 T. R. 760, [v) See judgment, Tyson v. Smith, 
 
 at p. 764; Tyson v. Smith, 9 Ad. & 'El. 9 Ad. & El. 421; Lord Falmouth v. 
 
 404, at p. 421. George, 5 Bing. 286; Race v. Ward, 
 
 (u) Fawcett v. Lowther, 2 Ves. 300; 4 E. ct B. 702. 
 
OF CUSTOMS GENERALLY. 
 
 25 
 
 torn could be capable of becoming law which is a rule for the 
 benefit of a\\.{w) Thus a custom in a manor that the com- 
 
 (w) Usages or customs that are 
 opposed to the policy of the law, or 
 which are unreasonable, can have 
 no validity. Thus, a usage that 
 permits a factor to pledge the good 
 of his principal. Newbold v. Wright, 
 4 Eawle. (Penn.) 195. Or the master 
 of a vessel to sell the cargo without 
 necessity. Bryant v. Com. Ins. Co., 
 6 Pick. (Mass.) 181 ; Stillman v. Hunt, 
 10 Lex. 109. Or to charge interest 
 when the statute provides that none 
 shall be charged. Henry v. Rish, 1 
 Dall. (Penn.) 265. Or authorizing a 
 landlord to re-enter upon demised 
 premises for a forfeiture incurred by 
 a non-paj'ment of rent in a manner 
 different from that provided by law. 
 Stoever v. Wliitman, 6 Binn. (Penn.) 
 417. Or to transfer settlement rights 
 by death-bed donations, without a 
 will in writing. West/all v. Singleton, 
 1 Wash. (Va.) 227. Or requiring 
 2,240 pounds as a ton when the stat- 
 ute provides that 2.000 pounds shall 
 be treated as a ton, when the con- 
 tract does not otherwise provide. 
 Evans v. Myers, 25 Penn. St. 114; 
 Green v. Moffet, 22 Mo. 529, have 
 been held invalid because unreason- 
 able and opposed to the policy of 
 the law. So, too, for the same 
 reason it is held that the custom and 
 understanding of merchants in a 
 particular trade to regard the barter 
 or exchange of a promissory note, 
 endorsed without recourse, as carry- 
 ing with it no implied warranty of 
 the past or future solvency of the 
 payor, is inadmipsibje. Beckwith v. 
 Farnum, 5 K. I. 230. So of a custom 
 in the trade between this country 
 and England, that the English mer- 
 chant on receiving an endorsed bill 
 
 of exchange, must return it imme- 
 diately to the endorser on protest, 
 and that if he calls on the drawer for 
 payment the endorser is discharged. 
 Brown v. Jackson, 2 Wash. (Va.) 24. 
 Also, of a custom that, when a seller 
 of goods receives a note of the con- 
 signee without the buyer's endorse- 
 ment, that the maker of the note 
 is alone responsible, and that the 
 buyer is discharged. Prescoit v. 
 Hubbell. 1 McCord. (S. C.) 94. The 
 usages referred to supra are held 
 invalid because they are opposed to 
 the policy of the law in that they 
 unsettle the well-established rules of 
 commercial law established for the 
 protection of the rights of parties, 
 and which should only yield to the 
 express terms of the contract itself. 
 But, in the absence of well-estab- 
 lished rules of law, evidence of usage 
 is admissible. Thus the local cus- 
 tom of the place on which a bill of 
 exchange is drawn, or where a 
 promissory note is payable, regu- 
 lates the number of the days of 
 gj'ace. Renner v. Bank of Columbia, 
 9 Wh. (U. S.) 581 ; Bank of Washing- 
 ton V. Tnplett, 1 Pet. (U. S.) 25; S. P. 
 Fowler v. Branthj, 14 Pet. 318 ; Cook- 
 endorfer v. Preston, 4 How. (U. S. ) 317 ; 
 Wiseman v. Chiappella, 23 How. (U. 
 S.) 368; Smith v. Glover, 2 Or. (U. S. 
 0. 0.) 334; Bank of Columbia v. Me- 
 Kenny, 3 Or. (U. S. C. C.) 361. Such 
 usage may be shown to have been 
 subsequently changed. Cookendorfer^ 
 v. Preston, 4 How. (U. S.) 317. The 
 usage of the banks of the District of 
 Columbia, to demand payment on 
 the fourth day of grace, only applies 
 to notes negotiated by them ; not to 
 notes deposited for collection. Hill 
 
26 
 
 OF CUSTOMS GENERALLY. 
 
 moner cannot turn in his cattle until the lord has put in his 
 own is bad, for it is injurious to the multitude, and beneficial 
 only to the lord, (a;) So a custom that the lor,d of the manor 
 shall have £3 for every proved breach of a stranger, (y) or 
 that the lord of a manor may detain a distress taken upon 
 his demesne, until fine be made for the damage, at the lord's 
 will,(2;) is bad, on the ground that it is unreasonable. In 
 the case of Tyson v Smith,{a) which was an action in tres- 
 pass for breaking and entering the plaintiff''s close and 
 erecting stalls, booths, &e., there, the defendant justified his 
 
 V. Norvell, 3 McL. (U. S.) 583. A 
 party to a note discounted at a bank, 
 is not bound by the special and par- 
 ticular usiige of such bank, unless 
 upon Ms agreement, express or implied. 
 Bank oj Alexandria v. Deneale, 2 Cf. 
 (U. S. C. C.) 488. An established 
 custom among insurance companies, 
 as to an agent's property in lists of 
 policies procured by him, may be 
 introduced, to explain the contract 
 with such agent. Ensworth v. New 
 York Life Insurance Co., 16 Am. L. 
 E. 332. Everj' demise between land- 
 lord and tenant, in respect to matter 
 in which the parties are silent, is 
 open to explanation by the general 
 usage and custom of the district ; the 
 parties are presumed to contract 
 with a tacit i-eference to such cus- 
 tom. Van Ness v. Pacard, 2 Pet. (U. 
 S.) 137. A contract authorized by a 
 well-known, long-established and 
 universal custom, made by the mas- 
 ter of a vessel, in the course of the 
 usual employment of his ship, is 
 binding, not only against himself 
 and his owners, but against the 
 vessel in rem. The Hendrik Hudson, 
 17 Law. Eep. 93. A general usage 
 among ship-owners and under- 
 writers, in relation to the settlement 
 of average losses, if known to the 
 
 parties, becomes part of the con- 
 tract. Sanderson v. Columbian In- 
 surance Co., 2 Cr. (U. S. C. C.) 218. 
 The master of a steamboat will, in 
 the absence of any special contract, 
 be deemed to have been hired in 
 accordance with a well-known cus- 
 tom of the port. The Swallow, 01c. 
 (U. S.) 334. If a creditor directs his 
 debtor to remit, and there be a cus- 
 tom proved, to send and receive 
 money by mail, the jury may infer 
 an authority to remit by mail. Sel- 
 man v. Bun, 10 West. L. J. 459. It 
 is not a deviation for a vessel from 
 New Orleans to a northern port, to 
 touch at Havana for further cargo, 
 in accordance with a known usage 
 of trade and navigation. Thatcher v. 
 McaUloh, 01c. (U. S.) 365. A custom 
 in contravention of a statute, is un- 
 reasonable and void. Thompson v. 
 Riggs, 5 Wall. (U S.) 663. As to 
 make a transaction within a statute 
 against usury, obligatory. Dunham 
 V. Dey, 13 John. (N. Y.) 40; Bank of 
 Utica V. Wager, 7 Cow. (N. Y.) 712. 
 
 {x) Yearb. Trin. 2 Hen. 4, fol. 24, 
 B. pi. 20. 
 
 (i/) 21 H. 4. See 7 Vin. Abr. 183, 
 Customs (F.) 7. 
 
 (z) Litt. s. 212. 
 
 (a) 9 Ad. & El. 406. 
 
OF CUSTOMS GENEKALLY. • 27 
 
 conduct under a custom that at fairs holden at certain times 
 of the year on some part of the commons and waste of a 
 manor, to be named by the lord of the manor (the locus in 
 quo being parcel of such commons and waste, and named by 
 the lord), every liege subject exercising the trade of a vic- 
 tualler might enter at the time of the fairs, and for the more 
 conveniently carrying on his said trade erect a booth, &c., 
 and continue the same for a reasonable time after the fairs, 
 paying 2d. to the lord, it was held that the custom was 
 reasonable, and that the plea was a good justification in tres- 
 pass brought by the owner of the soil.(^) 
 
 Custom Contravening Law of Emblements. 
 
 Sec. 24. It has further been decided that a custom that 
 a tenant shall have the way-going crop after the expiration 
 of his term, is reasonable. "It is just; for he who sows 
 ought to reap, and it is for the benefit and encouragement 
 of agriculture. It is indeed against the general rule of law 
 concerning emblements, which are not allowed to tenants 
 who know when their term is to cease, because it is held to 
 be their fault or folly to have sown when they knew their 
 interest would expire before they could reap. But the cus- 
 
 (6) See further, as to observances of a party. Taylor v. Carpenter, 2 
 
 which have been held as unreason- Wash. (U. S.) 2. Nor one that is 
 
 able, and therefore void as customs, illegal. Pierce v. U. S., 1 N. & H. 
 
 Clayton v. Corby, 5 Q. B. 415; 14 L. (U. S.) 270. Nor one that is unrea- 
 
 J. Q. B. 364; Rogers v. Brenton, 10 Q. sonable. United States v. Buchanan, 
 
 B. 26; 17 L. J. Q. B. 34; Rockey v. 8 Harr. (U. S.) 83. Or opposed to 
 
 Ruggens, Cro. Car. 220; Badger v. the provisions of a statute. Walker 
 
 Ford, 3 B. & Aid. 153; Mounsey v. v. Transportation Co., 3 Wall. (U. S.) 
 
 Ismay, 1 H. & C. 729; Hilton v. Earl 150; Winter v. United States, Hemp. 
 
 Granville, 5 Q. B. 701; Blackett v. (U. S.) 344; The Forrester, Newb. 
 
 Bradfej/, 1 B. & S. 940, 954-5 ; Elwood (U. S.) 81. In the absence of any 
 
 V. Bullock, 6 Q. B. 383; Gibhs v. law, an established usage among 
 
 Flight, 3 C. B. 581 ; Reg. v. Dalby, 3 those engaged in navigating the Mis- 
 
 Q. B. 602. A reasonable custom, see sissippi with steamers must be con- 
 
 Sanders v. Jameson, 2 C. & K. 557; sidered, in determining questions of 
 
 Gard v. Callard, 6 M. & S. 69. A for- fault or negligence in the manage- 
 
 eign custom which is bad in law ment of the steamers on that river. 
 
 cannot be set up to defeat the rights Myers v. Perry, 1 La. Ann. 372. 
 
■28 OF CUSTOMS GENERALLY. 
 
 torn of a particular place may rectify what otherwise would 
 be imprudence or folly." (c) 
 
 Oustom Must be Certain. 
 
 Sec. 25. A custom to be valid must be certain, {d) This is 
 sn element which must necessarily, and by the force of 
 reason, attach to a custom. Any miscellaneous observances, 
 which have no coherence of principle, are necessarily ineffi- 
 ■cacious as forming a rule of conduct. It is only when observ- 
 ances have shaped themselves into a constant uniformity, 
 only when their characteristics of the past can be a clear 
 light for their incidents in the future, that they rise to the 
 level of a custom, which is the stuff of which law is made. 
 Hence it follows that there must be definiteness or certainty 
 -about a custom. Thus it has been instanced since the days 
 of Blackstone that a custom that lands shall descend to the 
 most worthy of the owner's blood, is void on the ground that 
 the custom gives no certain means for the discovery of merit, 
 while a custom that lands shall descend to the next male of 
 the blood, exclusive of females, is certain and good.(e) 
 
 Illustrations of Certainty — Vague Customs. 
 
 Sec. 26. In an early case it was held that no person has 
 at common law a right to glean in the harvest-field, and that 
 neither have the poor of a parish legally settled (as such) any 
 
 (c) Wigglesworth -v. Dallison, Dough tract was made in reference to it. 
 201; 1 Smith Lea. Cas. p. 539; see For this, purpose the custom must 
 also Mousley v. Ludlam, 21 L. J. Q. B. be established and not casual, uni- 
 •64; Dalby v. Hirst, 1 B. & B. 224; form and not varying, general and 
 see also Stratup v. Dodderidge, 2 Ld. not personal, and known to the par- 
 Kayni. 1158 ; Naylor qui Tarn v. Scott, ties. Sipperly v. Steward, 50 Barb. 
 2 Ld. Raym. 1558. (N. Y.) 62; Duguid v. Edwards. Id. 
 
 (d) Tanistry's case, Sir J. Davis, 288; Kendall v. Ritssel, 5 Dana (Ky.) 
 Eep. 32. A custom in order to be- 501; Stevens v. Reeves, 9 Fick. (Muss.) 
 come part of a contract, or in a.ny 198; Wood v. Hickok, 2 Wend. (N. 
 manner control the legal relations Y.) 501; Martin v. Maynard, 16 N. 
 of parties, must be so far established H. 165; Wheeler v. Newbould, 5 Duer 
 and so far known to the parties that (N. Y.) 29. 
 
 it must be supposed that their con- (e) 1 Roll. Abr. 565. 
 
OF CUSTOMS GENERALLY. 29 
 
 such right, on the ground that such a right would be incon- 
 sistent with the nature of property, and that no right can 
 exist at common law unless both the subject of it, and they 
 who claim it, are certain. (/) So again, to return to the most 
 ordinary, and possibly the best, illustrations of the validity 
 of a custom in its dependence upon certainty or uncertainty,, 
 a custom to pay twopence an acre in lieu of tithes is good ; 
 but were it to pay sometimes twopence and sometimes three- 
 pence, as the occupier of the land chooses, is bad on account 
 of its uncertainty. (_^) "Yet a custom," as Blackstone puts 
 it, (A) "to pay a year's improved value for a fine on a copy- 
 hold estate is good — though the value be uncertain — for the 
 value may at any time be ascertained, and the maxim of the 
 law is id cerium est, quod cerium redi poiesi." (i) A custom, 
 therefore, that all the customary tenants of a manor having 
 gardens, parcels of their customary tenements respectively,. 
 have immemorially by themselves, their tenants and occu- 
 piers, dug, taken and carried away from a waste within the 
 manor, to be used upon their customary tenements, for the 
 purpose of making and repairing grass-plots in the gardens,, 
 for the improvement thereof, such turf covered with grass fit 
 for the pasture of cattle, at all times of the year, as often and 
 in such quantity as occasion hath required, was held bad, as 
 being indefinite and uncertain. And so, also, a custom for 
 the taking and applying of such turf for the purpose of 
 making and repairing the banks and mounds in, of, and for 
 the hedges and fences of such customary tenants is invalid 
 for a similar reason, (j) In that case it is evident that the 
 word " improvement " was most vague ; uo limitation pre- 
 vented the tenants, if the custom had been good, from 
 completely destroying the pasture. The only limit to the 
 custom, as Lord Ellenborough remarked, was " caprice and 
 
 (/) steel V. Houghton, 1 H. Bl. 51. [h] 1 Bl. Com. by Stephen, p. 61. 
 
 \g) 1 Bla. Com. 78 ; Le case de [i] Broom's Leg. Max. 5th ed. 623> 
 
 Tanistry, Davys, 28 b. 35 ; Blewett v. (j ) Wilson v. Willes, 7 East, 121. 
 Tregouning, 3 Ad. & El. 554. 
 
30 OF CUSTOMS G-ENEKALLY. 
 
 fancy." The privilege was claimed as exercisable when 
 •occasion required — a most loose, vague, indefinite and limit- 
 less restriction ; upon all these grounds it was impossible to 
 regard such an observance as a custom. A custom to throw 
 earth, stones, coals, &c., in heaps upon land near to certain 
 coal pits, was held bad, on the ground that the word near is 
 of great latitude, and too loose to support a custom. (^) On 
 the other hand, in the case of the Marquis of Salisbury v. 
 Gladstone,{l) which was in ejectment for a forfeiture by a 
 lord against a copyholder of inheritance, for digging and 
 taking clay from the manor of West Derby, in Lancashire, 
 to be sold off the manor to any one, the defendant pleaded 
 and proved a custom from time immemorial for the copy- 
 holders of inheritance, without license from the lord, to break 
 the surface and dig clay without limit from and out of their 
 copyhold tenements, for the purpose of making it into bricks 
 to be sold off the manor, such a custom was held good in 
 law. In that case it was not so much on the ground of 
 uncertainty, for " without limit " might mean the whole, 
 which is certain, but on the ground of the unreasonableness 
 of such a custom that its validity was disputed. And Lord 
 Cranworth's remarks upon this subject are not unworthy of 
 attention. " It is true," he said, " that a custom to be valid 
 must be reasonable. It is not easy to define the word 
 * reasonable ' when applied to a custom regulating the rela- 
 tion between a lord and his copyholders. That relation 
 must have had its origin in remote times by agreement 
 between the lord, as absolute owner of the whole manor in 
 fee simple, and those whom he was content to allow to occupy 
 portions of it as his tenants at will. The rights of these 
 tenants must have depended in their origin entirely on the 
 will of the lord, and it is hard to say how any stipulations 
 regulating such rights can, as between the tenant and the 
 lord, be deemed void as being unreasonable. Oujus est dare 
 
 [Ic) Wilkes V. Broadhent, 1 Wils. 63. [l) 9 H. of L. cases, 692. 
 
OF CUSTOMS GENEKALLY. 31 
 
 ejus est disponere. Wherever restrictions, therefore, or con- 
 ditions the lord may have imposed; or whatever rights the 
 tenants may have demanded, all were within the competency 
 of the lord to grant, or of the tenants to stipulate for. And 
 if it were possible to show that from the time of legal 
 memory any lawful arrangement had been actually come to 
 between the lord and his tenants as to the terms on which the 
 latter should hold their lands, and that arrangement had 
 been constantly acted on, I do not see how it could ever be 
 treated as being void because it was unreasonable. In truth, 
 I believe that when it is said that a custom is void because 
 it is unreasonable, nothing more is meant than that the 
 unreasonable character of the alleged custom conclusively 
 proves that the usage, even though it may have existed 
 immemorially, must have resulted from accident or indul- 
 gence, and not from any right conferred in ancient times on 
 the party setting up the custom." (m) 
 
 Custom Must be Obligatory. 
 
 Sec. 27. A custom must be compulsory, otherwise it loses 
 the imperative character of a law. It is true that agreements 
 which were founded in consent were the origin of customs ; 
 it is true that the observances which have become, as it were, 
 acted or pictured laws, were at first matters of option ; but 
 whenever they are established customs, they must have 
 ceased to be matters of choice, and must have an obligatory 
 element — a binding force. Were it in the option of every 
 man whether he would conform to a custom or not, were it 
 a matter which might be referred for decision to his good 
 pleasure, it is evident that it would be invalid upon the 
 ground which we have already considered, viz., uncer.tainty. 
 A custom to be binding must be current, it must be known 
 and understood by those whose conduct is to be affected by 
 its existence, whose transactions are to be influenced by its 
 
 [m) See also the Bishop of Win- Dean of Ely v. Warren, 2 Atk. 189. 
 Chester v. Knight, 1 P. Wms. 496 ; the 
 
32 OF CUSTOMS GENERALLY. 
 
 factual terms ; but if its terms were alterable at the will of 
 each man, if it was in the option of each man to be bound 
 to-day and not bound to-morrow by the custom, any one 
 whose conduct might have to conform to such a rule would 
 find it impossible to shape his actions accordingly ; any 
 transactions which might have to be influenced by such a pre- 
 cept would be varying, indefinite, uncertain and absurd. (?i) 
 Thus, in the words of Blackstone, " a custom that all the 
 inhabitants shall be rated towards the maintenance of a 
 bridge will be good ; but a custom that every man is to con- 
 tribute thereto at his own pleasure, is idle and absurd, and 
 indeed no custom at all."(o) 
 
 Customs Must be Consistent. 
 
 Sec. 28. Again, customs must be consistent with each other ; 
 one cannot be set up in opposition to another. (^) If two 
 customs are contradictory, it is evident that they cannot both 
 have been established by mutual consent. Thus the allega- 
 tion of one custom is not to be met by the allegation of 
 another custom inconsistent with the first, but rather by the 
 denial of the existence of the first as a custom. This rule 
 
 [n] Adams v. Otterbark, 15 How. (U. Kenchin v. Knight, 1 Wils. 253 ; Par- 
 S.) 539. The same doctrines prevail kin v. Raddiffe, 1 Bos. & Pul. 282. 
 inthelawof the United States, where A special custom as to the power 
 it has been held that a usage or cus- and authority of pilots .at one port 
 torn of trade is the law of that trade, prevailing at the place of shipment, 
 and to make such a custom at .all differing from the general custom, 
 obligatory, it must be ancient, so as is not binding on persons residing 
 to be generally known, certain and elsewhere, unless there is proof that 
 reasonable. Therefore, a usage of they had notice or knowledge of its 
 such doubtful authority as to be existence. Marlatt v. Clary, 20 Ark. 
 known only to a few, or where mer- 251. The fact that there is a private 
 chants of a trade differ as to its custom in reference to certain mat- 
 existence, will not be regarded. Col- ters, does not exclude evidence of a 
 lins v. B'opi?, 3Wash. (U.S. C. C.) 149; general custom relative to the same 
 compare Donndl v. Columbian Itis. matter, unless it appears that such 
 Co., 2 Sumn. (U. S.) 366; Wilcocksy. private custom was known to the 
 Phillips, 1 Wall. Jr. (U. S. C. C.) 47. parties or those under whom they 
 
 (o) 1 B1. Com. by Stephen, 61. claim. Beatty v. Gregory, 17 Iowa 107. 
 
 [p) See Aldred's case, 9 Rep. 58b; 
 
OF CUSTOMS GENERALLY. 33 
 
 really might fall under the first, which demands the moment 
 of reasonableness for a custom, for the absurdity and unrea- 
 sonableness of two mutually inconsistent customs is evident, 
 and if one custom be admitted to exist, the other which is 
 inconsistent with it violates the requisite of reasonableness, 
 and is therefore invalid. 
 
 Customs, How Construed -Presumption. 
 
 Sec. 29. We come now to the question of the interpreta- 
 tion of special customs. One of the principal rules to be 
 noted is, that customs in derogation of the common law are 
 to be strictly construed. (5') There is always a presumption 
 against a thing while it is only in^ the making, and a pre- 
 sumption in favor of the thing which is made. There is a 
 deep truth in Milton's remark, that error is only truth in 
 the making, and consequently it is well to pronounce against 
 a custom which is the making of law, in favor of a law which 
 is recognized, acknowledged and made. Now this doctrine 
 of strict construction is a deference to this presumption. 
 Thus it comes that, although by the custom of Gavelkind an 
 infant of fifteen years may by a deed of feoffment convey 
 away his lands in fee simple, this custom would not be held 
 to entitle him to effect the same thing by any other convey- 
 ance. Such a rule is contrary to the common law, and 
 although it having become a rule is an indication that it 
 must have had a reason, the fact that the rule of the common 
 law is different proves that there was a reason for the diverse 
 custom which is thus shown. The rational way of dealing 
 with such a case is to give effect as far as possible to the 
 latent reason which is in both, and hence the rule of con- 
 struction to which we have alluded. Thus, where there is a 
 custom that lands shall descend to the eldest sister, the 
 courts will not extend the authority of this custom to include 
 
 (q) Per Bayley, J., Richardson v. Walker, 2 B. & C. 839. 
 
 3 
 
34 OP CUSTOMS GENERALLY. 
 
 an eldest niece, (r) Where, however, there is a custom in a 
 manor that a man may convey his copyhold in fee simple, 
 that will not be held to preclude him from conveying it for 
 life, for in such a case the lesser right must be held to be 
 included in the greater, and it was therefore here said that, 
 although customs must be strictly, they need not necessarily 
 be literally construed, (s) 
 
 The Force of Customs — Usage and Statutory Enactments — Inter- 
 pretation by Custom. 
 
 Sec. 30. No custom can prevail against an Act of Parlia- 
 ment, (i) As we have pointed out, Acts of Parliament must 
 be regarded as the results of custom, as recognitions of prac- 
 tices, and as the worded outcome of observances. To allow 
 a custom to contradict an act would be to suffer a violation 
 of the seventh rule noted above, as it would be the recogni- 
 tion of inconsistent customs. A custom, then, that every 
 pound of butter sold in a particular market-town shall weigh 
 eighteen ounces is bad. (u) In the case of The Magistrates 
 of Dunbar v. The Duchess of Roxburgh, {v) it was expressly 
 held that long usage is of no avail against plain statutory 
 enactments, and that such an usage cau be binding on par- 
 ties only as the interpreter of a doubtful law, and as afford- 
 ing a contemporaneous exposition. But that where a statute 
 is expressive as to some points, and silent as to others, usage 
 may well supply the defects if not inconsistent with the 
 express directions of the statute, (zi') These rules and prin- 
 
 (r) Dewji V. Spray, 1 T. E. 466 ; see (U. S.) 344. It has been held that 
 
 also Miggleton v. Barnett, 2 H. &. in doubtful cases us;ige may be 
 
 N. 653. recurred to, to ascertiiin the mean- 
 
 (s) Co. Cop. I 33. This hmitation ing of the legislature. Dunbar Magis- 
 
 of rule is noticed in Coleridge's t¥ates v. Duchess of Roxburgh, 3 C. & 
 
 Blackstone, vol. i. p. 79. F. 335; Polk v. Hill, 2 Overt. (Tenn.) 
 
 (t) Co. Litt. 113a; Noble, v. Durell, US, a.nd see United States x. McDaniel, 
 
 3 T. K. 271. 7 Pet. (U. S.) 1, 14 ; Commercial Bank 
 
 (m) Noble V. Durell, 3 T. R. 271. v. Varnum, 3 Lans. (N. Y.) 86, 90, 
 
 See American cases, Walker v. The note. 
 Transportation Co., 3 Wall. (U. S.) {v) 3 CI. & P. 335. 
 
 150; Winter v. United States, Hcmpst. {w) See D. i. 3, 37. 
 
OF CUSTOMS GENERALLY. 35 
 
 ciples will enable tlie reader to understand what may be 
 called the law of customs in so far as the important question 
 of validity arises in connection with them. But these very 
 rules and principles will be more thoroughly understood after 
 an examination of some cases in which the question has 
 arisen, and when the relation of customs to the law of evi- 
 dence has been more thoroughly explained and illustrated. 
 
 Confusion as to Meaning of "Custom" — Custom and Common 
 Law. 
 
 Sec. 31. It is necessary to point out that there has been 
 considerable confusion of thought in relation to the use of 
 the word " custom," and to clear away, if possible, any 
 dubiety which may exist. There are customs which really 
 form a part of the common law of the land, and it is with 
 reference to these customs that the rules of validity, which 
 have been noted above, have been prescribed. But there 
 are many other customs or usages which ai'e not a part of 
 the common law, but which, nevertheless, influence the con- 
 duct of men, and which are, it may be, on the way to become 
 chapters of the unwritten rules of the country, (a;) These 
 are, as it were, provisional laws, but they lack the obligatory 
 character which attaches to proved and recognized customs. 
 These usages are proved by evidence like a fact, and when 
 proved it is held in law to have an obligatory character in 
 relation to certain executed transactions. Its existence will 
 raise the presumption that the parties to a contract acted in 
 conformity with its terms ; it will not, however, necessitate 
 any persons who may in the future enter into a similar con- 
 tract to act in accordance with it, and the obligatory character 
 of its terms may be done away with by the express wish of 
 the parties and by its express exclusion from the contract. 
 In this country the terms custom and usage are often used 
 
 (x) See the opinion of Nelson, J., mercial Bank of Kentucky v. Varnum, 
 iu Allen v. The Merchants Bank, 15 3 Lans. (N. Y.) 94, 95. 
 Wend. (N. Y.), and note to The Com- 
 
36 OF CUSTOMS GENERALLY. 
 
 synonymously, but they are by no means synonymous terms, 
 and much confusion arises from a failure to properly dis- 
 criminate between them. A usage is a growing custom, but 
 it does not become a custom until its origin is lost to the 
 memory of men. Indeed, in this country but few right cus- 
 toms exist, but we have a multitude of growing customs or 
 usages which may affect the relations of parties in transac- 
 tions to which they relate. 
 
 Habitual Law— Usages. 
 
 Sec. 32. There is an habitual law in conformity with 
 which men shape their actions, but that habitual law, which 
 is in a vague conformity with the law of the land, whether 
 statute, common or customary, is quite insufficient to regu- 
 late all kinds of conduct, and so the very habitual practices 
 of men introduces other rules which are sanctioned by the 
 common sense and convenience of those who are familiar 
 with the transactions. —These laws of the people's own 
 making are usages. It is not absolutely necessary that a 
 man should act exactly like his fellows, but as a fact most 
 men in these matters do, for these usages are the results of 
 collective sense and experience, (3/) and just as in an unknown 
 country a traveler will generally find the paths have consid- 
 erable shrewdness, and have been planned with a view to 
 ease and convenience, so it is with these customs of trade — 
 these consensual laws. 
 
 Customs Not Common Law— Evidence. 
 
 Sec. 33. But these customs are not a part of the common 
 law of the land. Although much of the common law of the 
 land has passed through this novitiate in the market place — 
 it being optional whether a person will act in conformity 
 with such a usage — although it is incessant amongst those 
 
 (y) Earl Russell has well said that factual proverb. It contains in it 
 
 a proverb is the wisdom of many the common sense and common 
 
 and the wit of one, and a custom experience of all men, and it was 
 
 might be looked on as a sort of invented by the ingenuity of one. 
 
OF CUSTOMS GENEKALLY. 37 
 
 who execute like transactions, it comes to be a question in 
 many cases whether an individual who has entered into 
 some agreement has done so subject to this common custom 
 or usage. With the customs themselves law has nothing to 
 do. They may come, as we have seen, to be real laws ; but 
 while they are only, as it were, vague facts or general facts 
 which have not been judicially recognized, they are of no 
 more interest to the lawyer than particular facts. The only 
 question which can interest him in connection with these is 
 the laws which regulate the admissibility of their proof, and 
 those which regulate the method of proof. The only ques- 
 tions, then, which we have, as lawyers, to deal with in 
 relation to these usages, are questions of evidence. In recent 
 times a good deal of weight has been given in courts of law 
 to these rabble laws, and a great number of important deci- 
 sions have been recorded in relation to them, and hence the 
 importance of the subject as a recondite branch of the law of 
 evidence. 
 
38 AS TO CUSTOMS OF THE COUNTEY AND THE 
 
 CHAPTER II. 
 
 AS TO CUSTOMS OF THE COUNTEY AND THE ADMISSIBILITY 
 OF THE PEOOP OF THESE. 
 
 34. EVIDENCE OF USAGE. 47. SILENCE OF COMMON LAW— AWAY-GOING 
 
 35. IMPKOVEMENT OF LAW. CEOP— TENANT-EIGHT— CUSTOM NOT IN- 
 
 36. CUSTOMS OF THE COUNTRY- PAROL EVI- CONSISTENT AD3IITTED — OPERATION OF 
 
 DENCE, CUSTOM. 
 
 37. THE CONSTRUCTION OF GRANTS BY USAGE. 48. AS TO TERMS ON WHICH TENANT MAY QUIT. 
 
 38. AS TO LEASES. 49. INTENTION TO EXCLUDE CUSTOM. 
 
 39. USAGES OF TRADE. 50. CUSTOM OF COUNTRY WHERE INOPERATIVE. 
 
 40. RULE IN BROWN V. BRYNE. ( 51. TERM OF HOLDING AND OPERATION OF CUS- 
 
 41. TO ASCERTAIN MEANING OF WORDS. TOM— REASON FOR ITS ADMISSION IN THIS 
 
 42. AS TO TEEMS OF ART, AC. CASE. 
 
 43. RULE IN WIGGLEWORTH V. DALLISON. 52. CUSTOM OF COUNTRY AS TO TIME— WHERE 
 
 44. CUSTOM AS TO COURSE OF HUSBANDRY. LETTING IK BY DEED — " MAETINMAS " 
 
 45. WHERE LEASE IS SILENT AS TO TIME— CUS- EXPLAINED. 
 
 TOM AS TO ALLOWANCE FOR SEEDS— 53. CUSTOM NOT EXCLUDED BY TERMS OF LEASE. 
 
 STIPULATION IN LEASE. 54. AGREEMENT EXCLUDING PROOF OF CUSTOM. 
 
 46. AS TO COMMERCIAL TRANSACTIONS— PEIN- 55. WHAT CUSTOMS ARE BINDING— CUSTOM TO 
 
 CIPAL OF ADMISSION OP CUSTOM— THE PAY FOE TILLAGES. 
 
 POLICY OF THIS. 
 
 Evidence of Usage. 
 
 Sec. 34. One of the most important questions which falls 
 under our consideration in connection with a study of the 
 law of customs is, as to the admissibility of evidence of a 
 usage for the purpose of modifying the meaning of a written 
 contract. This question has to be practically answered upon 
 very many occasions in modern courts of law, and the fre- 
 quency with which this matter is brought under judicial 
 notice is to be accounted for by our great commercial pros- 
 perity, which has increased the extent of our trade, and the 
 energy of those who are employed in it, and has produced 
 an intense vitality in relation to the various conveniences of 
 transaction, which has resulted in many useful and admira- 
 ble customs which may well become a part of the common 
 law of the land. 
 
 Improvement of Law. 
 
 Sec. 35. Whenever a country is progressive its laws tend 
 to improve. But there is one incident of the improvement 
 
ADMISSIBILITY QF THE PROOF OF THESE. 39 
 
 of a jurisprudence which it is of much importance to note in 
 this place. As a country becomes more civilized its criminal 
 laws become less severe, but, at the same time, its laws of 
 evidence seem to become less strict. Just as there is no 
 necessity for heavy pains and penalties in a country where 
 life and property are respected, where moral principle keeps 
 the hands of the people from violence and from fraud ; so in 
 a country where truth is common, where people have become 
 intelligent enough to presume that a lie is always a mistake, 
 there is not the same necessity for the strictness of proof 
 which is felt in a less civilized community. Those who look 
 at the history of our laws of evidence will find ample illus- 
 tration of the truth of this proposition ; and one chapter of 
 that history might be written in connection with the way in 
 which evidence of custom has been admitted in courts of law 
 to annex incident to and to explain the meaning of written 
 instruments. It may be well to divide our subject, for the 
 sake of convenience, into parts. The evidence of usage 
 may annex incidents to contracts between — (1) landlord and 
 tenant; (2) to contracts made in the course of trade; and 
 (3) to other contracts, in transactions which have such regu- 
 larity of practice as will admit of established usage, and in 
 which, in fact, customs have prevailed. 
 
 Customs of the Country— Parol Evidence. 
 
 Sec. 36. First, then, with reference to contracts made 
 between landlord and tentant. It is a well-known rule of 
 the law of proof that parol evidence cannot be admitted to 
 contradict or vary the terms of an agreement in writing, (a) 
 
 (a) Meres v. Ansell, 3 Wil. 275 ; S. P. 355 ; 5 Scott N. E. 958. See also Per- 
 
 Ogilvie \. Foljambe, S Mer. 53 ; Att- kinsv. Young, 82 M&aa.{lG Gray) 389; 
 
 wood V. SmaU, 6 C. & T. 232; Besant Cocke v. Bailey, 42 Miss. 81; Kirk v. 
 
 V. Cross, 10 C. B. 895; Caine v. Hors- Hartman, 63 Penn. St. 97; and see 
 
 fall, 2 C. & K. 349; Clifton v. Walmes- some earlier cases, such as Halliday 
 
 ley, 5 T. R. 564 ; Henson v. Cooper, 3 v. Hart, 30 N. Y. 474 ; Wolfe v. Myers, 
 
 Scott, N. E. 48; Harnor v. Groves, 15 3 Sandf. (N. Y.) 7; Erwin v. Saun- 
 
 0. B. 667 ; Shore v. Wilson, 9 C. & F. ders, 1 Cow. (N. Y.) 249 ; Van Ostrand, 
 
40 
 
 AS TO CUSTOMS OF THE COUNTEY AND THE 
 
 In cajge, however, the written agreement is ambiguous — if 
 the ambiguity does not appear on the face of it, in which 
 
 V. Eeed, 1 Wend. (N. Y.) 424; Mont- 
 gomery County Bank v. Albany City 
 Bank, 8 Barb. (N. Y.) 396. Evidence 
 of usage is admissible to arrive at 
 the intention of the parties when 
 any doubt exists in reUition thereto 
 from the language of the contract, 
 or vfhen the contract is silent as to 
 certain matters. Eaton v. Smith, 20 
 Pick. (Mass.) 150; Dixon v. Dunham, 
 13 111. 324; Cooper v. Kane, 19 Wend. 
 (N. Y.) 386; Shaiv v. Mitchell, 2 Met. 
 (Mass.) 65; Leach v. Beardslee, 22 
 Conn. 404. So even when the con- 
 tract is in writing and precise in its 
 terras, evidence of usage is admissi- 
 ble to show the manner in which the 
 business is done. Fox v. Parker, 44 
 Barb. (N. Y.) 541. So evidence of a 
 usage is sometimes admissible to fix 
 the rights of parties and give a right 
 of action when none would other- 
 wise exist. Thus, a custom of a 
 particular place for the owners of 
 adjoining lots, after giving notice to 
 the adjoining owner to build his half 
 of the fence and his refusal to do so, 
 (in the absence of any statute regu- 
 lating the matter) to build the whole 
 and hold him for his share of the 
 expense, has been held reasonable 
 and binding, and enforceable by 
 action. Knox v. Artiiian, 3 Rich. (S. 
 C.) 283. So evidence of usage is ad- 
 missible to show the terms of a con- 
 tract not in writing and to corrob- 
 orate witnesses. Thus, where the 
 master of a coasting vessel, who had 
 chartered it on shares, testified that 
 the owners authorized him if he 
 should leave tlie vessel to give it up 
 to the mate, and that he did so under 
 an oral contract with the mate to 
 run the vessel on the same terms as 
 
 he had done; and the mate testified 
 that he ran the vessel accordingly, as 
 master, and that the owners ratified 
 the agreement , it was held that evi- 
 dence was admissible in order to 
 show the terms of the contract 
 between the new master and the 
 owners, and to corroborate the wit- 
 nesses, of a usage, at the port where 
 the vessel belonged, to let such ves- 
 sels to the master upon shares. 
 Thompson v. Hamilton, 12 Pick. 
 (Mass.) 425. Where a new and 
 unusual word is used in- a contract, 
 or where a word is used in a techni- 
 cal or peculiar sense, as applicable 
 to any trade or branch of business, 
 or to any particular class of people, 
 it is proper to receive evidence of 
 usage to explain and illustrate it. 
 Eaton v. Smith, 20 Pick. (Mass.) 150. 
 Mercantile customs which are uni- 
 versally acted upon, enter into and 
 form a part of tlie contract, although 
 not mentioned or alluded to in its 
 terms. Munn v. Burch, 25 111. 35; 
 Poiver V. Kane, 5 Wis. 265. In a dis- 
 pute in regard to the hiring of a 
 vessel, the evidence of custom is ad- 
 missible to explain the acts of the 
 parties. Perkins v. Jordan, 35 Me. 
 231. So proof of a custoni in the 
 vicinity, for persons building a ves- 
 sel together, each to be responsible 
 for his own share only, is admissible 
 to modify a written contract. Riply 
 V. Crooker, 47 Me. 370. In tlie case 
 of contracts, a usage known to both 
 parties may be given in evidence, as 
 tending to show the nature of the 
 contract between them. Loring v. 
 Gurney, 5 Pick. (Mass.) 15; Thomp- 
 son V. Hamilton, 12 Id. 425 ; Naykn- 
 V. Semmes, 4 G. & J. (Md.) 274, but 
 
ADMISSIBILITY OF THE PEOOF OF THESE. 41 
 
 case it is to be explained by the judge, (5) but is what is 
 called in law a " latent ambiguity " — parol evidence is admis- 
 sible to explain what, but for it, would be inexplicable, (c) 
 The reasons for the admission of parol evidence under such 
 circumstances are clear and strong, but where such an 
 ambiguity can be explained by a reference to an existing 
 custom, it is evident that such proof will have more authority 
 than that which would attach to evidence of the party's 
 intentions at the time the instrument was executed, or of his 
 particular practice in relation to certain matters, as indicating 
 what would probably be his intention in framing the docu- 
 ment. In all cases it is difficult to arrive at a man's inten- 
 tion ; and the only possible means of arriving at a correct 
 conclusion with reference to his mental attitude is by a 
 consideration of his words and actions. These, however, are 
 apt to be misconstrued, even if they are accurately remem- 
 bered and correctly repeated or described. On the other 
 hand, the practice of all men is easy of proof, and there is 
 the strongest presumption in favor of the supposition that he 
 
 no usage or custom, however gen- before a custom or usage can be held 
 eral, can be put in evidence to vary binding in the construction of a Con- 
 or control the express terms of a tract, it must have, as to such trans- 
 contract. Cadwell v. Meek, 17 111. 220 ; actions, the force of law. Glamorgan 
 Renner v. Bank of Columbia, 9 Wheat. v. Gtiissere, 1 Mo. 141. 
 681 ; Rankin v. American Lis. Co. 1 (6) Smith v. Thompson, S C. B. 44; 
 Hall (N. Y.) 619; Sleght x. Rhinelan- 18 L. J. C. P. 314; Hills v. London 
 der, 1 Johns. (X. Y.) 192 ; Barlow v. Gaslight Co., 'Tl L. J. Ex. 60. See also 
 Lambert, 28 Ala. 704; Convin v. Podch, Campbell v. Johnson, 44 Mo. 247. 
 4 Cal. 204: Sigsworth v. Mclntyre, 18 (c) Rex v. Laindun, 8 T E. 379; 
 111. 126; Fay v. Strawn, 82 III. 295; Cocker v. Guy, 2 B. & P. 565; Pad- 
 Sandford v. Rawlings, 43 111. 92; At- lock v. Fradley, 1 C. & J. 90. See, as 
 kinson v. Allen, 29 Ind. 375 ; Randall to the explanation of documents 
 V. Rotch, 12 Pick. (Mass.) 107; Ma- written in illegible hands. Goblet v. 
 combre v. Parker, 13 Ld. 175 ; Wheeler Beechy, 3 Sim. 24 ; Masters v. Masters, 
 V. Nurse, 20 N. H. 220; George v. 1 P. Wms. 424; Norman v. Morrell, 
 Bartlett, 22 N. H. (2 Post.) 49(1; Wads- 4 Ves. 769; see also Hoivlett v. Row- 
 worth V. Allcott, 6 N. Y. (2 Seld.) 64 ; lett, 56 Barb. [N.Y.) 467 ; Willis v. Fer- 
 Cooper \. Purvis, 1 Jones (N. C.) L. nald, 23 N. J. L. (4 Vr.) 206; Suffirn 
 141; Sweet v. Jenkins, 1 E. I. 147; v. Butler, 21 N. J. Eq. 410; DeWolf 
 Meaher v. Lufkin, 21 Tex. 383. And v. Orandall, 1 Sweeny (N. Y.) 556. 
 
42 
 
 AS TO CUSTOMS OF THE COUNTRY AND THE 
 
 who wrote the document, the ambiguity of which has to be 
 explained, did what every other body was doing — shaped 
 his conduct according to the manners and usages of his time 
 and district ; and in that way, if a usage can be proved, the 
 existence of which will explain the ambiguity, it is evidently 
 the best means of arriving at a conclusion as to the intention 
 of the individual, the explanation of whose agreement is in 
 question. Thus it is that the proof of a custom in the 
 explanation of an ambiguity in a written instrument is not 
 only admitted, ((^) but must be regarded as parol evidence of 
 the highest authority. 
 
 The Construction of Grants by Usage. 
 
 Sec. 37. As a fact, evidence of usage has been admitted, 
 from very early times, in explanation of ambiguous grants 
 and charters, and it has been decided that the construction 
 of such a grant is for the jury and not for the judge. (e) 
 
 (d) Doe d. Kinglake v. Beviss, 18 L. 
 J. C. P. 628. A custom or usage 
 that is inequitable or unjust cannot 
 he sustained. Coleman v. Chadwick, 
 80 Penn. St. 81 ; Dans v. Wain, 71 Id. 
 69 ; Horner v. Wcdson, 79 Id. 242 ; 
 Bean v. Ballon, 3 Phila. (Penn.) 87. 
 Nor one that is unreasonable, or not 
 generally acquiesced in. MoMarlin 
 V. Pennsylvania, R. R. Co., 69 Penn. 
 St. 374. Nor one that is in violation 
 of law, religion or morality. Holmes 
 V. Johnson, 42 Penn , St. 159. A usage 
 or custom that is destructive of the 
 subject of a grant or contract cannot 
 be set up. Thus a person owning 
 certain coal lands sold the coal 
 under the land to the plaintiff, with 
 certain specified privileges through 
 his adjoining lands, and subse- 
 quently sold part of the coal on such 
 adjoining land to the defendant. 
 The plaintiff, in excavating his coal, 
 removed the "ribs" composed of 
 
 coal, which supported the roof of 
 the mine, causing -the surface to 
 crack and sink so tliat the water 
 flowed into the plaintiff's mine, and 
 thence into the defendant's mine. 
 It was held that the consequences 
 of this act could not be excused by 
 showing that H., in mining his coal, 
 pursued the approved and custom- 
 ary practice of miningin that region, 
 and without negligence, nor fiy any 
 custom in Pennsylvania that in 
 mining the owner of the mine may 
 remove the ribs and allow the sur- 
 face to sink, as such a custom is 
 unreasonable. Horner v. Watson, 
 ante. 
 
 {e) Doe d. Kinglake v. Beviss, 18 L. 
 J. C. P. 628; Beaufort {Duke) v. 
 Swansea (Magistrate &c., of), 3 Exch. 
 413; Newcastle - on - Tyne (Master) 
 Pilots, &c.) V. Bradley, 2 E,'& B. 428; 
 Withnell v. Gratham, 1 Esp. 322; see 
 also Wadley v. Baylies, 5 Taunt. 752 ; 
 
ADMISSIBILITY OF THE PROOF OF THESE. 
 
 43 
 
 The real object of evidence under such circumstances is to 
 place the court in the position of the parties to the instru- 
 ment, and without the evidence of usage that would, in a 
 large number of cases, be impossible. (/) 
 
 As to Leases. 
 
 Sec. 38. In farming leases it is usual for the lessee to cove- 
 nant that he will manage his farm in a husbandlike manner ; 
 but it has been over and over again decided that in the 
 absence of any such covenant the mere relation of landlord 
 and tenant creates an implied obligation to farm according 
 to the custom of the country. (y) Here, then, we have the 
 terms of the custom becoming a part of or incorporated 
 with the lease. But, as we shall see, an express covenant 
 inconsistent with the custom will control and exclude this 
 implication. (^) Customary rights and incidents universally 
 
 but see Parker v. Ibbetson, i C. B. N. 
 S. 846. Evidence of usage is not 
 admissible to vary the plain language 
 of a deed, not ambiguous or equivo- 
 cal. Cortelyou v. Van Brandt, 2 John. 
 (N. y.) .857. But usage as to the 
 forrjt of deeds cannot be disregarded. 
 Brown v. Farron, 3 Ohio 155 ; Kirk- 
 endall v. Mitchell. 3 McLean (U. S.) 
 144. 
 
 (/) Baird v. Fortune, 7 Jur. N. S. 
 926; Waterpark [Lord) v. Fennell, 7 
 H. & L. Oas. 650; 7 W. R. 634. 
 
 (g) Powley v. Walker, 5 T. R. 373 ; 
 Leigh v. Hewitt, 4 East, 154; Anger- 
 stein V. Hanson, 1 C. M. & R. 789 ; 
 Earl of Falmouth v. Thomas, 1 Or. & 
 M. 89; Halifax v. Chambers, 4 M. & 
 W. 662 ; Martin v. Qilham, 7 A. & E. 
 540 ; Bickford v. Pearson, 5 0. B. 920 ; 
 Wilkitis v. Wood. 17 L. J. Q. B. 319 ; 
 Sutton V. Temple, 12 M. & W. 52. It 
 is competent to show by parol what 
 is considered, in the neighborhood, 
 good husbandry in the cultivation, 
 
 &c., of lands. Aughinbaugh v. Cop- 
 penheffer. 55 Penn. St. 847. 
 
 (/i)" Webb V. Plummer. 2 B. & C. 
 746 ; Clarke v. Roystone, 13 M. & W. 
 752; Roberts v. Bake^-, 1 Cr. & M. 
 808; Sutton v. Temple, 12 M. & W. 
 52, at p. 63. While evidence of 
 the custom of the country is admis- 
 sible to add incidents to a lease in 
 respect to malters in relation to 
 which it is silent, yet it is never 
 admissible to control the express 
 terms of the lease. Webb v. Plummer, 
 2 B. & Ad. 746 ; DaJby v. Hirst. 1 B, & 
 B. 224; Senior w.Armiiage. Holt 197. 
 In Clarke v. Roystone, 13 M. &W. 752, 
 an action was brought against a ten- 
 ant to recover the value of certain 
 manure under an .agreement as fol- 
 lows : After referring to other mat- 
 ters not material to be stated here, 
 the agreement was, "Be it remem- 
 bered, that the above closes of land 
 have been only clipped or mown 
 once, and since manured with eight 
 
44 
 
 AS TO CUSTOMS OF THE COUNTRY AND THE 
 
 attaching to the subject-matter of the contract in the place 
 and neighborhood where the contract was made, are impliedly 
 
 loads of rotten manure per acre, 
 which the tenant agrees, when given 
 up by him, to leave it in the same 
 state, or allow a valuation to be 
 made. As witness our hands, this 
 mh day of April, 1840. John Clarke, 
 Moses Koystone.'' The declaration 
 set up a breach of this agreement in 
 that the defendant did not leave the 
 premises in the same condition or 
 state as when he received them. 
 The defendant set up the custom of 
 the country in defence, to pay on 
 going in, and to pay nothing on 
 going out, but the court held that 
 the custom was excluded by the 
 terms of the contract. Parke, B., 
 said : " This declaration is upon an 
 executory contract, to pay to the 
 plaintiff so much money on request, 
 and thereupon that the defendant, 
 the tenant, was to have a tenancy 
 according to the customi of the 
 country. Now what is the custom 
 of the country? It is to pay half 
 tillage upoti coming in, and of course 
 to receive half tillage upon going 
 out. Then'if you import these words 
 into the alleged contract, and sup- 
 pose the contract to be, that the 
 tenant shall do that which the cus- 
 tom of the country requires, then 
 the defendant is to pay so much 
 money upon request as is equal to 
 the half tillage. That is the nature 
 of the contract described in the 
 declaration. Now look at the proof. 
 The proof is, that the defendant was 
 to occupy these closes of land, which 
 were manured the year before; and 
 then there was a stipulation, that, 
 at the end of the term mentioned 
 in the contract, he should put the 
 premises exactly in the same state 
 
 as to manure which they were in at 
 the commencement of the tenancy, 
 or submit to a valuation; that is, 
 that he should pay for the deteriora- 
 tion of the estate, according to the 
 value put upon it by competent 
 persons, by the want of such manure. 
 Therefore, here is a stipulation, that 
 the premises, upon the tenant^s 
 going out, shall be left in the same 
 condition they were in at the time 
 he entered, or that he shall pay for 
 the difference at the end of the 
 term. That excludes the idea of the 
 payment of any money down at 
 the time of entry, because, at the 
 end of the term, he is to put them 
 into the same condition, or to pay 
 damages according to their deteri- 
 oration. That is not according to 
 the custom of the country; and it 
 appears to me, therefore, that the 
 allegation in the declaration is not 
 proved ; that the custom of the 
 • country is excluded by the terms of 
 the contract. Instead of paying 
 money down, the nature of the con- 
 tract is altered altogether ; nothing 
 is to be paid down, nothing is to be 
 received on going out, but the 
 premises are to be put into the same 
 condition as they were in at the 
 beginning of the term, or the differ- 
 ence in the value is to be paid." 
 Alderson, B., said : '' It appears to 
 me that the reasonable and natural 
 construction of the agreement is, 
 that the party is to pay nothing 
 down, but that he is to do something 
 when he goes out of possession, or 
 to pay for the deterioiation of the 
 property if he does not; and that 
 that stipulation being inconsistent 
 with the custom of the country, the 
 
ADMISSIBILITY OF THE PEOOF OF THESE. 
 
 45 
 
 annexed to the written language and terras of the contract, 
 unless the custom is particularly and expressly excluded. 
 Parol evidence of custom and usage consequently is always 
 admissible to enable us to arrive at the real meaning of the 
 parties who are naturally presumed to have contracted in 
 conformity with the known and established usage.^ Thus, 
 
 contract must prevail, and the cus- 
 tom of the country must be ex- 
 cluded." In Wigglesworth v. Dallison, 
 X Doug. 201, it was held, that, even 
 where there was no agreement under 
 seal, the custom of the country might 
 be looked at as annexing terms to 
 the contract, unless they were ex- 
 pressly excluded by the agreement. 
 Lord Mansfield says': " The custom 
 does not alter or contradict the 
 agreement in the lease, it only super- 
 adds a right which is consequential 
 to the taking." The cases on this 
 subject were all reviewed in Hutton 
 \. Warren, 1 M. & W. 466; and 
 Parke, B., adverting to the case of 
 Senior v. Armitage, Holt's N. P. C. 
 197, states the decision to have been, 
 as appeared by a manuscript note of 
 Mr. Justice Bay ley, " that though 
 there was a written contract between 
 landlord and tenant, the custom of 
 the country would still be binding, 
 if not inconsistent with the terms of 
 such written contract; and that not 
 only all common law obligations, 
 but those imposed by custom, were 
 in full force where the contract did 
 not vary them." That shows that 
 even where there is a written agree- 
 ment or deed, the custom is not 
 excluded, unless there be something 
 in the terms of the instrument 
 inconsistent with the custom. In 
 Holding v. Piggott, 7 Bing. 465, 5 M. 
 
 1 Parties are presumed to contract 
 in reference to the usage of the trade 
 
 & P. 427, it was held, that, where the 
 lease contained no stipulation as to 
 the mode of quitting, the off-going 
 tenant was entitled to his 'way-going 
 crop according to the custom of the 
 country, even although the terms of 
 holding might be inconsistent with 
 such a custom. In Muncey v. Den- 
 nison, 1 Ark. 216, where the tenant 
 agreed to cultivate the farm accord- 
 ing to the custom of the country, 
 " and during the time to consume 
 with stock on the farm all the hay, 
 straw and clover grown thereon, 
 which manure shall be used on the 
 farm," and the landlord agreed to 
 let the tenant occupy part of the 
 homestead until midsummer day, 
 after the expiration of the term, if 
 necessary, "to end the cropping of 
 the amount grown on the premises," 
 it was held that the lease did not 
 exclude the custom of the country, 
 as which the tenant, having paid 
 for straw on his incoming, was enti- 
 tled to be paid for straw on his 
 outgoing." The rule of law in 
 reference to importing into the term 
 of a tenancy the custom of the coun- 
 try, does not admit of evidence of 
 the usage of a particular estate, or 
 the property of a particular individ- 
 ual, however extensive it may be, 
 unless it is shown that the tenant 
 was aware of it. Wormersly v. Dally, 
 26 L. J. Exchq. 219. 
 
 or business in question, if there is 
 nothing in the agreement to exclude 
 
46 
 
 AS TO CUSTOMS OP THE COUNTRY AND THE 
 
 the custom of the country in regard to the claims of an out- 
 going tenant of a farm will prevail, although there be a lease 
 
 the inference. Hinton v. Locke, 5 
 Hill (N. Y.) 437; Outwater v. Nelson, 
 20 Barb. (jST. Y.) 29; and see Wads- 
 worth V. Allcott, 6 N. Y. 64. Thus, in 
 the cage first cited supra, in an 
 action on an agreement to pay for 
 work at so much per day, it was 
 held that a usage or custom that 
 ten hours' labor was a day's work, 
 and that twelve and a half hours' 
 labor on one dav was a day and a 
 quarter within the meaning of the 
 contract, is admissible. A general 
 custom among masters of vessels on 
 the lakes, carrying goods for for- 
 warders, liaving a lien on the goods 
 for their advances, to enforce such 
 lien for the benefit of the forwarders, 
 is binding on such carriers. Lee v. 
 Satter, IL & D.'s Supp. (N. Y.) 163. 
 Where, by the terms of a written 
 contract, commission merchants are 
 to charge a specified commission on 
 sales, which is to be in full of all 
 expenses, and at the termination of 
 the contract by mutual consent, the 
 goods on hand are transferred to 
 other factors, evidence is incompe- 
 tent to prove a usage of merchants 
 to charge one-half commissions 
 under such circumstances. Ware v. 
 Hayward Rubber Co., 3 Allen (Mass.) 
 84. In an action on an agreement 
 to build an octagonal cellar wall at a 
 certain price by the foot, evidence 
 of the usage of measuring the angles 
 of such walls, and of the proper 
 mode of measuring the angles of 
 rectangular walls, is reasonable and 
 therefore admissible. Ford v. Tir- 
 rell, 9 Gray (Mass.) 401. In Loioe v. 
 Lehman, 15 Ohio St. 179, it was held 
 that where bricks are furnished and 
 laid up under contract, by the thou- 
 
 sand, a local custom to estimate the 
 number by measurement of the 
 walls, upon a uniform rule based on 
 the average size of bricks, and 
 making slight additions for extra 
 work and wastage, at points and 
 places where they occur, is not an 
 unreasonable custom ; also, that 
 when such contract is in writing, 
 parol evidence of the custom does 
 not contradict it, and may be given 
 on the trial, although the custom is 
 not specially pleaded; and that it is 
 not error in such case, to instruct 
 the jury, that if they find such cus- 
 tom to have been certain, uniform 
 and generally acquiesced in, in the 
 city where the parties resided, and 
 where they made the contract, they 
 may interpret the contract in the 
 light of the custom, although the 
 custom was of only seven years' 
 standing, and although the plaintiff 
 had not actual notice of its exist- 
 . ence. A custom to deliver bills of 
 lading only to the holders of the 
 shipping receipts, was held to be 
 reasonable, as tending to the protec- 
 tion of both the shipper and the 
 ship owner, and evidence of it was 
 held to be properly submitted to the 
 jury. Blossom v. Champion, 37 Barb. 
 (N. Y.) 554. But a custom is not 
 legal if contrary to morality, religion 
 and the law of the land; but is 
 unreasonable, and therefore not 
 compulsory. Thus in an ejectment, 
 growing out of a disputed title to 
 land, the claimant being a negro, 
 born in another State, the defendant 
 offered to prove that, in the region 
 whence the plaintiff came, it was 
 not customary for colored people to 
 form legal marriages, and that the 
 
ADMISSIBILITY OF THE PKOOP OF THESE. 
 
 47 
 
 under seal regulating the terms of the holding, but not 
 containing stipulations as to the terms of quitting, which 
 can exclude the custom.^ The customary right of a tenant 
 to the away-going crop, to compensation for work and labor, 
 seed and materials employed in manuring, tilling and sow- 
 ing the land, also the customary right of a landlord or rever- 
 sioner to a heriot on the death of a tenant for life, and all 
 customs and usages respecting the cultivation of the soil and 
 the mode of husbandry, will impliedly prevail, if the lease is 
 silent respecting them, and parol or oral evidence is conse- 
 quently admissible to superadd the usage and customary 
 right to the contract between the parties, such right and 
 usage being recognized by law as incident to the subject 
 
 majority of them cohabit promiscu- 
 ously, as well among free colored 
 persons as slaves, in order to rebut 
 the presumption of marriage and 
 legitimacy from cohabitation. Held, 
 that, as the testimony would have 
 tended to establish a custom con- 
 trary to public morals and decency, 
 the evidence was incompetent. 
 Holmes v. Johnson, 42 Penn. St. 159. 
 So, too, a custom is without force in 
 opposition to a positive law. Oran- 
 well V. Fanny Fosdick, 15 La. An. 436. 
 Proof of particular customs to show 
 the intent of parties in their acts or 
 contracts, is allowable, only when 
 the custom is so well established in 
 the particular locality, trade, pro- 
 fession or business, that men trans- 
 acting the business to which it 
 relates, must be presumed to know 
 it, and to contract in reference to 
 it; it is therefore only in excep- 
 tional cases, that proof of an usage 
 in one place is admissible to show 
 its existence in another. A question 
 to a witness, acquainted with stage 
 business, whether "it is customary 
 among hotel keepers to make any 
 
 difference in their charges for board, 
 between persons employed in the 
 stage business and others, when 
 stages run regularly to their hotel," 
 was held incompetent for general- 
 ity, and also because it did not call 
 for an established uniform custom, 
 which had become the law of the 
 business. Walket v. Barron, 6 Minn. 
 508. A custom in a manor, that 
 copyholders of inheritance may 
 without license from the lord of the 
 manor dig and get clay from their 
 copyhold tenements, for the purpose 
 of making bricks to be sold by them 
 off the manor, is good in law. Sal- 
 isbury V. Gladstone, 6 H. & N. 123. 
 A custom that underwriters are not 
 liable, under the ordinary form of 
 policy, for general average in respect 
 of the jettison of goods stowed on 
 deck, is a valid custom, and does 
 not contradict the terms of the 
 policy. Miller v. Tetherington, 6 H. 
 & N. 278. 
 
 ^ Hutton V. Warren, 1 M. & W. 475, 
 476; Domat, liv. 1, tit. 1; Wood's 
 Landlord and Tenant, 475-479. 
 
48 
 
 AS TO CUSTOMS OF THE COUNTKY AND THE 
 
 matter of the contract, and consequential upon the taking of 
 the lands.^ The doctrine of annexing customary incidents 
 to a lease has been recognized in several cases in this 
 country, the lease itself being silent in respect to them. 
 Notably is this the case in a Maryland case* where the 
 doctrine of Wigglesworth v. Dallison was fully recognized and 
 approved.^ But parol evidence of custom and usage is not 
 
 " Wigglesworth v. Dallison. 1 Doug. 
 201 ; Wilkins v. Wood, 17,Law J. Q. B. 
 319. 
 
 * Dorsey v. Eagle, 7 H. & J. (Md.) 
 321. 
 
 ' See also Siultz v. Dickey, 5 Binn. 
 (Penn.) 285; Foster v. Robinson, 6 
 Ohio St. 90 ; also, Stone v. McClay, 1 
 Harr. (Del.) 520, where it was held 
 that an incoming tenant might enter 
 upon the demised premises under a 
 custom to that effect before his term 
 commenced, to fill an ice house on 
 the premises. See, also, Dieffendorf 
 V. Jones, 5 Binn. (Penn.) 289; Carson 
 V. Blazer, 2 Id. 487. Where the term 
 is fixed in the lease, the tenant can- 
 not take the away-going crop under 
 a custom. Whitimarsh v. -Oidting, 10 
 John. (N.Y.)360. In Pennsylvania, 
 a custom of a particular place for a 
 landlord to enter for breach of a 
 condition in a manner different from 
 that authorized by the common law, 
 or the terms of the deed, is inadmis- 
 sible. Stoever v. Whitman, 6 Binn. 
 (Penn.) 416. The tenant's right to 
 the away-going crop, as founded 
 upon custom, was recognized by the 
 Supreme Court of the United States 
 in Van Ness v. Packard, 2 Pet. (U. S.) 
 137. And there it was held that a 
 local custom in the city of Washing- 
 ton, for tenants to remove certain 
 buildings erected by them, might be 
 proved. Id. 148. See Woodfall's 
 Landlord and Tenant 218; Bull. N. 
 
 P. 34. See further, Story's Confl. 
 of Laws 226; Wood's Landlord and 
 Tenant 474. The doctrine in the text 
 has been recognized and acted upon 
 in various English cases. The prin- 
 cipal difficulty in its application has 
 been to determine when these inci- 
 dents may be regarded as excluded 
 by the terms of the lease. The gen- 
 eral rule seems to be, that the cus- 
 tom is admissible unless inconsistent 
 with the written instrument. It 
 need not, however, exclude it in 
 express language, as seems to have 
 been erroneously assumed in Senior 
 V. Armitage. See Hutton v. Warren, 
 1 M. & W. 4. In Seniof v. Armitage, 
 1 Holt's N. P. R. 197, evidence was 
 admitted of a customary right to 
 compensation for an away-going 
 crop, though the instrument of de- 
 mise contained an express stipula- 
 tion, that all the manure made on 
 the farm should be spent on it, or 
 left at the end of the tenancy, with- 
 out any compensation being paid. 
 Such a stipulation certainly does not 
 exclude, by implication, the tenant's 
 right to receive a compensation for 
 seed and labor. Per curiam, in Hut- 
 ton V. Warren, sUpra. In Webb v. 
 Warren, cited in the text, there was 
 a claim of a customary allowance 
 for foldage (a mode of manuring the 
 ground), but there being an express 
 provision for some payment on quit- 
 ting, for the things covenanted to 
 
ADMISSIBILITY OF THE PKOOF OF THESE. 
 
 49 
 
 admitted to contradict or vary express stipulations and pro- 
 visions restricting or enlarging the exercise and enjoyment of 
 
 be done, and an omission of foldage, 
 held that the customary obligation 
 to pay for the latter, was excluded. 
 2 B. & Aid. 746. In Holding v. Pig- 
 gott, 7 Bing. 465, a lease contained 
 stipulations limiting the quantity of 
 grain that should be grown on the 
 farm, and directing that the land 
 should be summer-fallowed, and that 
 the tenant should spend all the fod- 
 der, hay, straw, turnips, &c., on the 
 premises ; and held that the custom 
 of the country, which would give 
 the tenant a right to the away-going 
 crop of wheat after a crop of turnips, 
 was not excluded, though such crop 
 had been grown in violation of the 
 covenant to leave the land summer- 
 fallowed. The court said these wei-e 
 stipulations as to the terms of hold- 
 ing, not as to the terms of quitting. 
 In Roberts v. Barker, 1 C. & M. 803, 
 the tenant claimed compensation 
 for manure left on the farm, under 
 a custom which bound the away- 
 going tenant to leave the manure, 
 and under which he was entitled to 
 be paid for it by the landlord or the 
 incoming tenant. The lease con- 
 tained a condition, that the manure 
 should not be sold or taken away, 
 but should be left to be expended 
 on the land, by the landlord or 
 incoming tenant. Lord Lyndhurst, 
 in delivering the judgment of the 
 court that the custom of the country 
 was excluded, said : " If the parties 
 meant to be governed by the custom 
 in this respect, there was no neces- 
 sity for any stipulation, as, by the 
 custom, the tenant would be bound 
 to leave the manure, and would be 
 entitled to be paid for it. It was 
 altogether idle, therefore, to provide 
 
 for one part of that which was suffi- 
 ciently provided for by the custom, 
 unless it was intended to exclude 
 the other part." Hutton v. Warren, 
 (supra) was a case in which the 
 plaintiff held under a lease of the 
 glebe lands and tithes of a parish; 
 the lease contained a stipulation, 
 that the plaintiff should spend and 
 consume three parts in four of the 
 manure arising from the tithes, as 
 well as from the glebe land, on the 
 glebe, and leave on the land all the 
 manure not spread or bestowed on 
 the premises, for the use of the 
 landlord, he paj'ing a reasonable 
 price for the same; and held that 
 the custom of the country, giving 
 an away-going allowance for seed 
 and labor, was not excluded. Parke, 
 B., giving the judgment of the court, 
 said : " The question is, whether 
 from the terms of the lease, it can 
 be collected that the parties intended 
 to exclude the customary obligation 
 for seed and labor.'' The court con- 
 sidered the stipulation, obliging the 
 tenant to lay the manure arising 
 from the tithes, as imposing a new 
 obligation on the tenant, dehors the 
 custom, and as qualifying the obli- 
 gation by an engagement on the 
 landlord's part to give a remunera- 
 tion, by repurchasing a part of the 
 produce in a particular way. " It is 
 by no means," said the court, " to be 
 inferred from this provision, that 
 this is the only compensation which 
 the tenant is to receive on quitting. 
 If, indeed, there had been a cove- 
 nant by the tenant to plow and sow 
 a certain portion of the demised 
 land in the last year, being such as 
 the custom of the country required, 
 
60 
 
 AS TO CUSTOMS OF THE COUNTRY AND THE 
 
 the customary right. Omissions may be supplied by the 
 introduction of the custom, but the custom cannot prevail 
 over and nullify the express provisions and stipulations of 
 the contract.® If a lease, for example, contains an exj)ress 
 provision as to the disposal of the away-going crop, or speci- 
 
 he being paid, on quitting, for the 
 plowing; or to plow, sow and 
 manure, he being paid for the man- 
 uring; the principle of expressum 
 faoit cessare taciturn, which governed 
 the decision of Webb v. Plummer, 
 would have applied; but this is not 
 the case here. The custom of the 
 country as to the obligation of 
 the tenant to plow and sow. and 
 the corresponding obligation of the 
 landlord to pay for such plowing 
 and sowing, in the last year of the 
 term, is in no way varied. The only 
 alteration made in the custom is, 
 that the tenant is obliged to spend 
 more than the produce of the farm 
 on the premises, being paid for it in 
 the same way as he would have 
 been paid for that which the custom 
 required him to spend." Sutton v. 
 Warren, 1 M . & W. 466. In Van Ness 
 V. Packard, 2 Pet. (U. S.) 187, proof 
 was admitted of a usage in Wash- 
 ington for a tenant to remove build- 
 ings erected by him on the premises, 
 provided they were removed before 
 his term expired, and in Wilcox v. 
 Wood, 9 Wend. (N. Y.) 346, it was 
 held that proof of a local custom 
 that a lease from May 1st of one 
 year to May 1st of the next year, 
 expires at noon of the last day. In 
 Moore v. Eason, 11 Ired [N. C.) 568, 
 where parol evidence was offered to 
 prove a custom of a place, by which 
 all leases expired at a certain time, 
 it was held that the lease itself mast 
 first be proved, and then any inci- 
 dent to it could be proved by parol 
 
 evidence, but incidents could not be 
 proved first, in order to establish the 
 contract. In Iddings v. Nagle, 2 W. 
 & S. (Penn.) 22, it was held that the 
 right of a tenant holding under a 
 written lease to take the straw grow- 
 ing upon the land, depends upon the 
 lease itself, and cannot be varied by 
 evidence of a custom or usage. By 
 the custom of Pennsylvania, New 
 Jersey and Delaware, a lessee for a 
 term certain is entitled to the away- 
 going crop (i. e., the grain sown in 
 the autumn, to be reaped the next 
 harvest), though such right be not 
 recognized in the contract ; and he 
 may enter to gather it, or may main- 
 tain trespass for it against the lessor 
 or his vendee, after the expiration of 
 the lease. Stidtz v. Dickey, 5 Binn. 
 (Penn.) 285; JDiffendorffer v. Jones, 
 cited 5 Binn. (Penn.) 289; 2 Binn. 
 (Penn.) 487 ; Comfort v. Duncan, 1 
 Miles (Penn.) 231; Biggs v. Brown, 2 
 S. & E. (Penn.) 14; Demi v. Bossier, 1 
 Penn. 224; Van Doren v. Everitt, 5 
 N. J. L. 460 ; Templeman v. Biddle, 1 
 Harr. (Del. ) 522 ; Van Ness v. Packard, 
 2 Pet. (U. S.) 148. In Delaware, where 
 the lease is for one year, to wit, from 
 April 1st to April 1st, the tenant is 
 not entitled to the oat crop unless 
 upon a special custom, which must 
 be specially plead, and cannot be 
 shown under the general issue. 
 I'fmpleman v. Biddle, ante. 
 
 " Clarke v. Roystone, 13 M. & W. 
 752; 14 Law J. Exch. 143 ; Taylor on 
 Ev. p. 771 ; Blackett v. R. Ex. Ass. Co., 
 2 C. and J. 249. 
 
ADMISSIBILITY OF THE PKOOF OF THESE. 51 
 
 fies and regulates the particular allowances that are to be 
 made by an incoming to an outgoing tenant, the custom in 
 respect thereof is excluded.''' 
 
 Usages of Trade. 
 
 Sec. 39. The known and received usage of a particular 
 trade or profession, and the established course of every mer- 
 cantile or professional dealing, are considered to be tacitly 
 annexed to the terms of every mercantile or professional 
 contract, if there be no words therein expressly controlling 
 or excluding the ordinary operation of the usage, and parol 
 evidence thereof may consequently be brought in aid of the 
 written instrument.* Thus, although a bill of exchange is 
 on the face of it payable on a day certain, yet the three 
 additional days of grace, accorded by the known custom of 
 merchants, are permitted to be annexed to the terms of the 
 written instrument, and make a part of the contract. The 
 general warranty in a policy of insurance to sail with convoy, 
 is construed, according to the usage of merchants, to depart 
 with convoy from the nearest customary place of rendezvous 
 where convoys are to be had.® When a workman is hired 
 for a year, to work at a particular trade, under a written 
 agreement which says nothing as to any period of absence 
 to be allowed to the workman, oral evidence may be given to 
 show that it is the custom of the particular trade for the 
 workmen employed in it to take certain holidays, and to 
 absent themselves on such occasions from their work, with- 
 out the permission of their masters.-^ 
 
 ' Roxburghe v. Boberlson, 2 Bligh. " LethuUer's Case, 2 Salk. 443. 
 
 156; Webb v. Plummer, 2 B. & Aid. ^ Reg. v. Stoke-upon-Trent, 13 Law 
 
 746 ; Roberts v. Barker, 1 C. & M. 808. J. Q. B. 117. Usage may be resorted 
 
 ' iSi/CT-s V. Jonas, 2 Exch. Ill; Grant to where the contract contains all 
 
 V. Maddox, 15 M. & W. 737 ; Button that is necessary to understand what 
 
 V. Warren, 1 M & W. 475 ; Bourne v. the parties agreed to do, when the 
 
 Gatcliffe, 3 So. N. E. 40 ; Sewall v. evidence explaining the usage is 
 
 Gibbs, 1 Hall (N. Y.) 602 ; Astor v. admitted. Dana v. Fiedler, 1 E. D. S. 
 
 Union Ins. Co., 7 Cow. (N. Y.) 202; (N. Y.) 463. Where a custom exists 
 
 Piesch V. Dixon, 1 Mas. (U. S.) 11. in reference to a particular trade or 
 
52 
 
 AS TO CUSTOMS OF THE COXJNTKY AND THE 
 
 Rule in Brown v. Byrne. 
 
 Sec. 40. " In all contracts," observes Parke, B., "as to the 
 subject-matter of which known usages prevail, parties are 
 
 business, and is shown to be certain, 
 uniform and notorious, the contracts 
 of parties engaged in the business 
 are presumed to be made with ref- 
 erence to such custom, unless it is 
 expressly excluded. Dalton v. Dan- 
 iels, 2 Hilt. (N. Y.) 472. And it enters 
 into the body of the contract with- 
 out being inserted. Stultz v. Dickey, 
 5 Binn. (Penn.) 287, S. P. ; Lodwiek 
 V. Ohio Ins. Co., 5 Ohio, 436 ; Sewall 
 V. Gibbs, 1 Hall. (N. Y.) 612; Barber 
 V. Brace, 3 Conn. 9; Bank of Colum- 
 bia V. Fitzhugh, 1 H. & G. (Md.) 239 ; 
 Bixwra v.TFenwort/i, 2 N.H. 93; United 
 States \.Arredondo,6 Pet. (U. S.) 715; 
 Sampson v. Oaszam, 6 Port. (Ala.) 
 123; Inglebright v. Hammand, 19 
 Ohio 337; Hursh v. North, 40 Penn. 
 St. 241. The custom among the mer- 
 chants of Pittsburg, of charging in- 
 terest on accounts after six months, 
 having existed for a long time, and 
 become uniform and notorious, the 
 courts of justice are bound to notice 
 it as part of the law. Watt v. Hoch, 
 25 Penn. St. 411. The usage and 
 practice of a firm, though not good 
 as a custom, will be binding, if ex- 
 pressly made part of the contract, 
 or shown to have been known and 
 assented to by the defendant at the 
 time ; and evidence of such a con- 
 tract, either direct or by proving a 
 course of dealing between ^e par- 
 ties, on such terms and of such fre- 
 quency as to justify the inference 
 that the transaction was on the 
 accustomed terms, is admissible. 
 Hursh V. North, 40 Penn. St. 241. 
 However it may be as between them- 
 selves, the custom of merchants will 
 not bind a person acting in a differ- 
 
 ent character. Nichols v. DeWolf, 1 
 R. I. 277. Evidence of the general 
 usage of a single town is admissible. 
 Gleason v. Walsh, 43 Me. 397. But a 
 private usage, as a usage at an inn 
 for the guests to leave their money 
 or valuables at the bar, or with the 
 keeper of the house, or his clerk, is 
 not binding upon a guest, unless he 
 has actual knowledge or notice of it; 
 and whether he has such knowledge 
 or notice is a question of fact for the 
 jury. Berkshire Woollen Co. v. Proc- 
 tor, 7 Cush. (Mass.) 417. Nor does a 
 general custom at a particular store, 
 for the customers to allow interest 
 on open accounts after a certain 
 time, have the effect of an agree- 
 ment on the part of a party dealing 
 at such store, to pay such interest, 
 unless expressly or impliedly sanc- 
 tioned by such party. Searson v. 
 Heyward, 1 Spears (S. C.) 249. Nor 
 will the custom of a creditor to com- 
 pute interest on monthly rests bind 
 his debtor, if it does not appear that 
 the latter knew of such custom. 
 Goodnow V. Parsons, 36 Vt. 46. Proof 
 of particular customs to- show the 
 intent of parties in their acts or con- 
 tracts, is allowable only when the 
 custom is so well established in the 
 particular locality, trade, profession 
 or business, that men transacting 
 the business to which it relates must 
 be presumed to know it, and to con- 
 tract in reference to it. Walker v. 
 Barron, 6 Minn. 508 ; Martin v. Hall,. 
 26 Mo. 386 ; Joyce v. Ldghton, 22 N. 
 H. 71 ; Saint v. Smith, 1 Coldw. 
 (Tenn.) 51. If a party to an action 
 attempts to rebut evidence tending 
 to show fraud on his part, by show- 
 
ADMISSIBILITY OF THE PROOF OF THESE. 53 
 
 found to proceed with the tacit assumption of these usages; 
 they commonly reduce into writing the special particulars of 
 their agreement, but omit to specify these known usages 
 which are included, however, as of course, by mutual under- 
 standing ; evidence, therefore, of such incidents is receivable. 
 The contract, in truth, is partly express and in writing, 
 partly implied or understood and unwritten. But the evi- 
 dence received must not be of a particular which is repug- 
 nant to, or inconsistent with, the written contract."^ " The 
 usage," observes Wilde, C. J., " is admissible for the purpose 
 of annexing incidents to the contract in matters upon which 
 the contract is silent, but not to vary or contradict, either 
 expressly or by implication, the express terms of the written 
 instrument." Therefore, where a written memorandum of a 
 contract for the sale of certain specified bales of wool at an 
 ascertained price, stated that they were " to be paid for by 
 cash in one month," it was held that the contract imported a 
 sale upon a month's credit; that the vendor' was entitled to 
 delivery of the goods without payment of the price, and that 
 evidence of a usage in the wool trade, that under contracts 
 framed in similar terms, the vendors were not bound to 
 deliver without receiving payment of the price, was inadmis- 
 sible to alter the plain import of the written instrument. 
 " We think," observes Wilde, C. J., " that the admission of 
 the evidence would be to allow a right to be set up inconsis- , 
 tent with and contradictory to the terms of the contract, 
 and to annex an incident to the subject matter, which if 
 not expressly is clearly impliedly excluded by the con- 
 tract.^ 
 
 ing a cLiPtom or usage of trade to insertion of advertisements, when no 
 
 transact business in that manner, he order is given respecting the time, 
 
 must show a custom or usage Ml reto- until directions are given to stop 
 
 Hon to that branch of business. Hills them. Thomas v. O'Hara, 1 Mill (S. 
 
 V. Hoitt, 18 N. H. 603. A printer of C.) Const. 303. 
 
 a newspaper may give evidence of a ' Brown v. Byrne, 3 EU. & Bl. 715. 
 
 custom of the trade to continue the ' Spartali v. Benecke 10 C. B. 221. 
 
54 AS TO CUSTOMS OF THE COUNTKY AND THE 
 
 To Ascertain Meaning of Words. 
 
 Sec. 41. Custom and usage also influence the interpretation 
 of contracts, and determine to a great extent the meaning of 
 the words used therein. If, by the known usage of trade, or 
 by custom, a word has acquired, in respect of the subject 
 matter of the contract, a peculiar sense and meaning different 
 from the ordinary popular sense and meaning, parol evidence 
 is admissible to show that the parties used the word in its 
 customary trade acceptation, and not in the ordinary popular 
 sense. Thus, the word thousand in certain trades compre- 
 hends a larger number of units than it does in its ordinary 
 acceptation. In the herring trade, for example, six score 
 herrings go to the hundred, and sixty to the thousand ; and 
 parol evidence is consequently admissible, to show that the 
 word thousand, when applied to herrings, in the contracts of 
 herring dealers means twelve hundred. In a lease of a 
 rabbit warren, parol evidence was admitted to show that by 
 the custom of the country where the lease was made, in 
 taking an account of the rabbits on a rabbit warren, the 
 numbers were computed at one hundred dozen to a thou- 
 sand, and the word thousand in a lease as applied to rabbits 
 was consequently construed to mean one hundred dozen or 
 twelve hundred.* So, where an insurance was effected " to 
 
 ^ Smith V. Wilson, 3 B. & Ad. 728. elude the art of currying, or not, 
 The meaning of the words '' in turn according to the general sense of the 
 to deliver " in a charter party. Rob- place where it is used ; in Kentucky 
 ertson v. Jackson, 2 C. B. 412. Also, the tanning business includes, it 
 "in regular turns of loading,'' may seems, the entire process of making 
 be explained by usage. Schulte v. leather. Burger v. Caldwell, 2 Dana 
 Leidman, 14 C.B. 38. But in Hudson (Ky.) 130, 131. The force of usage 
 V. Clementson, 8 Id. 213, it was held is most fully illustrated by the 
 that a custom showing that the de- cases relating to the construction of 
 fendant was excused from loading a bills of lading, charter parties, poli- 
 vessel in regular turn, because his cies of insurance and other con- 
 turn was to be determined by a jjarty tracts of a commercial nature. Parol 
 not named in the contract, was not evidence was held admissible to 
 admissible. The phrase, "mystery show that, by mercantile usage, the 
 and art of tanning business," in an term roots, in a policy of insurance, 
 indenture of apprenticeship, will in- is confined to such as are perishable 
 
ADMISSIBILITY OF THE PKOOF OF THESE. 
 
 55 
 
 any port in the Baltic," evidence was admitted to show that 
 
 in their nature; and that, therefore, 
 sarsaparilla not being perishable in 
 this sense, though a root within the 
 general meaning of tlie term, was 
 not embraced by the memorandum 
 in the policy. Coit v. The Commercial 
 Insurance Co., 7 John. (N. Y.) 385. 
 The term sea letter, contained in a 
 policy, may be shown by mercantile 
 usage to mean " certificate of owner- 
 ship." Sleight V. Sartshorne, 2 John. 
 (N. Y.) 531. Whether the term 
 " cargo,'' in a policy of insurance 
 shall embrace live stock, may be set- 
 tled by usage among insurance com- 
 panies. Alleg're's Adm'r v. The Mary- 
 land Insurance Co., 2 G. & J. (Md.) 
 136. See Chesapeake Insurance Co. v. 
 Allegre, Id. 164. Where a policy 
 provided that in case of loss, tlie 
 same was to be paid in in ninety 
 days after "proof and adjustment 
 thereof ;" held, that parol evidence, 
 showing what papers were by usage 
 to be furnished to the insurers as 
 proof under such a provision, was 
 admissible. Allegre v. The Maryland 
 Insurance Co.. 6 H. & J. (Md.) 408. 
 An insurance was affected on a ship 
 at London, insuring the ship from 
 thence to the East Indies, the ship 
 warranted to depart with convoy. It 
 was shown that the ship went from 
 London to the Downs, and from 
 there with convoy, and was lost. 
 The defendant insisted that there 
 had been a breach of the warranty 
 by departing from London without 
 convoy. The clause "warranted to 
 depa.rt without convoy," must be 
 construed according to the usage 
 among merchants— i. e., from such 
 places where convoys are to be had, 
 as the Downs. Lethulier's Case, 2 
 Salk. 443; see also 24 N. Y. 302; 22 
 
 N. Y. 37. If any terms in a policy 
 of insurance have, Viy the known 
 usage of trade, or by use and prac- 
 tice, as between insurers and insured, 
 acquired an appropriate sense, they 
 are to be construed accordingly. 
 Coit V. Com. Ins. Co., 7 Johns. (N. Y.) 
 385. To the same effect, 1 Duer. on 
 Ins., 181, 196; 1 Phill. on Ins. 489; 
 Child V. Sun Mutual Ins. Co., 3 Sandf. 
 (N. Y.) 26. So held in the case of 
 an offer to show a usage that the 
 word roots, in policies of insurance, 
 was confined to such roots as are 
 perishable in their own nature. 
 Coit V. Commercial Ins. Co., 7 Johns. 
 (N. Y.) 385. Also of a usage that 
 taking sea-elephants was within the 
 scope of a "whaling voyage." Child 
 V. Sun 3Iutual Ins. Co., 3 Sandf. (N. 
 Y.) 26. So where the words of an 
 ancient deed are equivocal, the 
 usage of the parties, under the deed, 
 is admissible to explain tlaem. 2 
 Inst. 282. Thus, where the deed 
 gave the grantee the privilege of 
 cutting timber for building on the 
 premises, from the woods of the 
 grantor, evidence of usage, with the 
 knowledge of the grantor and his 
 heirs, to cut timber for fencing, was 
 held admissible to show the inten- 
 tion of the parties to apply the word 
 "building" to the making of fences. 
 Livingston v. Ten Broeck, 16 Johns. 
 (N. Y.) 14. But where the language 
 of a deed is unambiguous, clear and 
 pertinent, it cannot be controlled by 
 a different exposition derived from 
 any usage under it. Cortleyou v. Van 
 Brandt, 2 Jolms. (N. Y.) 357 ; Par- 
 sons V. Miller, 15 Wend. (N. Y.) 561. 
 Where a positive statute has de- 
 clared the legal signification of a 
 word, in reference to its use in con- 
 
56 
 
 AS TO CUSTOMS OF THE COITNTEY AND THE 
 
 the Gulf of Finland was considered, by universal custom and 
 
 tracts generally, evidence of usage 
 or custom is inadmissible to give the 
 word a different meaning, but a 
 court of equity may reform the con- 
 tract. Many v. Beekman Iron Co., 9 
 Paige Ch. (N Y.) 188. Various ex- 
 pressions in bills of lading are to be 
 understood in reference to particu- 
 lar usage. A clean bill of lading, 
 which imports that the goods are to 
 be stowed under deck, may be con- 
 strued to allow a stowage upon deck, 
 or otherwise, according to the usage 
 between the places contemplated by 
 the contract as the termini of the 
 voyage. Cherry v. Holly, 14 Wend. 
 (N. Y.) 26; Barber v. Brace, 3 Conn. 
 B. 9. So usage may authorize what 
 might otherwise be considered a de- 
 viation in respect to the voyage. See 
 Lawrence v. McGregor, 37 Penn. St. 
 193. But evidence of intent, as an 
 independent fact, by declarations, 
 &c., &c., would not be admissible; 
 for the intent must be sought in the 
 language of the bill of lading. See 
 Cherry v. Holly, Barber v. Brace, and 
 Lawrence v. McGregor, supra ; except 
 so far as it is to be deemed a mere 
 receipt. See Wood v. Perry, 37 Penn. 
 St. 240. See also Ban-ett v. Rogers, 7 
 Mass. 297 ; May v. Babcock, 4 Ham. 
 (Ohio) 384. The question whether a 
 local usage might be resorted to, to 
 show that the ordinary exception as 
 to perils of the seas, in a bill of lad- 
 ing, would include an injury bj' rats, 
 arose in Aymer v. Astor, 6 Cow. (N. 
 Y.) 663. Savage, C. J., expressed a 
 very decided opinion in the affirma- 
 tive. The other judges dissented, 
 though upon what precise ground 
 does not appear. In the case of The 
 Schooner Reeside, '1 Sumn. (U. S.) 567, 
 the bill of lading specified that the 
 
 goods were " to be delivered in good 
 order and condition, dangers of the 
 seas only excepted ;" and the point 
 was, whether a local usage between 
 New York and Boston (the termini 
 of the voyage), might be admitted 
 to influence the contract so far as 
 to exempt the carriers from liability 
 for all damages save what arose 
 from their own neglect. Mr. Justice 
 Story excluded the usage, on the 
 ground that, if admitted, it would 
 go, not to interpret or explain, but to 
 vary and contradict the contract. The 
 same doctrine was held in Tiirney v. 
 Wilson, 7 Yerg. (Tenn.) 340. Evi- 
 dence of a usage among coal ship- 
 pers has been admitted to show what 
 is meant by " immediate delivery,'' 
 and to show that it means a delivery 
 in some cases during the present 
 month, and in some cases during the 
 succeeding month. Neldon v. Smith, 
 86 N. J. L. 148. As to the requisites 
 of such usage see Schenok v. Griffen, 
 38 Id. 463 ; Stewart v. Scudder, 34 Id. 
 When a custom is in derogation of 
 the common law, it must be clearly 
 proved, and in order to apply it in a 
 given case the case must clearly be 
 brought within it. Overman v. Ho- 
 boken Bank, 30 N. J. L. 61 ; also, 32 
 Id. 563. Evidence is admissible of a 
 well settled usage by which the 
 words " store fixtures," in a policy 
 of insurance, are applied to all 
 furniture and other articles in a 
 shop or warehouse necessary or 
 convenient for use in the course of 
 trade. Whitinarsh v. Conway F. Ins. 
 Co. ,16 Gray (Mass.) 359. 'The phrase 
 " British weight," in a charter party, 
 may mean gross weight, or net weight; 
 and evidence of usage is admissible 
 to show whicti was meant. God- 
 
ADMISSIBILITY OF THE PROOF OF THESE. 
 
 57 
 
 consent amongst merchants and in mercantile contracts, to 
 
 dard v. Bulow, 1 N. & M. (S. C.) 45. 
 It was expressly laid down in Taylor 
 V. Briggs, '2 C. & T. 5'5, that if the 
 words " cotton in bales," used in a 
 charter party, had acquired a par- 
 ticular meaning in regard to the 
 trade between Liverpool and Alex- 
 andria, to which trade the instru- 
 ment related, such meaning should 
 apply. Various other phrases and 
 expressions may be applied differ- 
 ently, according to the subject-mat- 
 ter, and the particular usage in ref- 
 erence to it, existing at the time of 
 the contract; thus, what shall con- 
 stitute a good delivery of goods at a 
 particular place, no consignee being 
 named, niay depend upon the usage 
 in that place. See Oalloiuay v. Hughes, 
 1 Bail. (S. C.) 553. And see, as to 
 the meaning of the terra " deliver," 
 Furniss v. Hone, 8 Wend. (N. Y.) 247. 
 The term " coppered ship," in a 
 written application for insurance, 
 may have different meanings ac- 
 cording to the usage at difi'erent 
 places. Hazzard v. The New England 
 Marine Ins. Co., 1 Sum. (U. S.) 218. 
 In Bold V. Rayner, 1 M. & W. 343, 
 evidence of mercantile usage was 
 admitted, that a bought note of 
 goods to be delivered from ''the 
 Speedy or Charlotte, expected to 
 arrive " — and a sold note of the 
 goods " ex Speedy and Charlotte to 
 arrive " — meant the same thing, and 
 that the seller had the option to de- 
 liver the goods from either vessel. 
 For other cases of usage relative to 
 mercantile contracts, see the text: 
 also, Gabay v. Lloyd, 3 Barn. & Cress. 
 793 ; Blaokett v. Royal Exchange As- 
 surance Co., 2 Cromp. & J. 249. Bills 
 of exchange and notes are no ex- 
 ceptions to the rule in regard to 
 
 usage. See note to Yeates v. Pim, 1 
 Holt 95. Accordingly, a custom 
 among banks in the District of Co- 
 lumbia, to demand payment on the 
 fourth day after a note became due, 
 was allowed to be shown in an action 
 against an endorser, and he was held 
 liable, though by the settled rules of 
 the common law, he would have 
 been discharged by reason of failure 
 to make demand on the third day. 
 Renner v. Bank of Columbia, 9 Wheat. 
 (U. S.) 581. See a^so Bank of Colum- 
 bia v. Magmder, 6 PI. & J. (Md.) 172, 
 180 ; Bank of Washington v. Triplett, 
 1 Pet. (U. S.) L'5; Milk v. United 
 States Bank, 11 Wheat. (U. S.) 431. 
 See further as to usages at particu- 
 lar banks, Kennebeck Bank v. Page, 
 9 Mass. 155 ; Kennebeck Bank v. 
 Hammatt, Id. 159; Widgery v. Mon- 
 roe, 6 Id'. 449 ; Weld v. Gorham, 10 
 Id. 366 ; Blanchard v. Hilliard, 11 Id. 
 85 ; Wentworth v. Chase, Id. 87, note ; 
 Leavitt v. Simes, 3 N. H. 14; Bank of 
 Utica v. Smith, 18 John. (N. Y.) 230; 
 Loring v. Gumey, 5 Pick. (Mass.) 16. 
 But see Woodruff v. The Merchants 
 Bank of the City of New York, 25 Wend. 
 (N. Y.) 673, in which evidence was 
 received at the trial of a usage and 
 custom of merchants in the city of 
 New York, that a draft upon the 
 cashier of a bank, payable to order, 
 and by him accepted, was a check, 
 and not entitled to the days of grace 
 allowed on promissory notes and 
 bills of exchange. On a motion for 
 a new trial, it was held that the evi- 
 dence should not have been re- 
 ceived. The court said, that " the 
 effect of proof of usage, as given in 
 this case, if sanctioned, would be to 
 overturn the whole law on the sub- 
 ject of bills of exchange in the city 
 
58 
 
 AS TO CUSTOMS OF THE COUJSTTRY AND THE 
 
 be within the Baltic, though the two seas were treated as 
 distinct by geographers.'^ And in a lease of a coal mine 
 evidence was admitted to show that the word level in mining 
 districts had a meaning different from the ordinary popular 
 meaning, and that the word was used by the parties to the 
 
 of New York. We need scarcely 
 add, even if the witnesses were not 
 mistaken, and tlie usage prevails 
 there, as testified to, it cannot be 
 allowed to control the settled and ac- 
 knowledged law of the state in respect 
 to the description of paper." And see 
 the same case in 6 Hill (N. Y.) 174, 
 in the Court of Errors, where tho 
 judgment of the Supreme Court was 
 affirmed. See Boioen v. Newell, 8 (N. 
 Y.) 190. In respect to the quality 
 or character of a usage, admissible 
 to influence the construction of a 
 contract of any sort, for the rale in 
 this respect seems to be the same 
 whether the contract be written or 
 verbal, sealed or unsealed, it must 
 appear to be so well settled, po vuii- 
 formly acted upon, and of so long a 
 continuance, as to raise a fair pre- 
 sumption that it was known to both 
 contracting parties, and that they 
 contracted in reference to, and in 
 conformity with it. See the cases 
 supra; also, Eager v. The Atlas Ins. 
 Co., 14 Pick. (Mass.) 143, 144, per 
 Wilde, J.; Snoiuden v. Warder, 3 
 Rawle (Penn.) 101, 107; Smith v. 
 Wright, 1 Cain. E. 44; Van Ness v. 
 Pacard, 'J Pet. 148 ; Loving v. Qurney, 
 5 Pick. 16 ; Renner v. Bank of Colum- 
 bia, 9 Wheat. 581, et seq.; Lawrence 
 v. M'Gregor, 37 Penn. St. 192; Ken- 
 dall V. Russell, 5 Dana (Ky.) 501; 
 Barksdale v. Brown, 1 N. & M. (S. C.) 
 517 ; Barber v. Brace, 3 Conn. 9 ; 
 Jjawrence v. Stonington Bank, 6 Conn. 
 529; Paull v. Lewis, 4 Watts 402; 
 Thomas v. O'Hara, 1 Rep. Const. Ct. 
 
 (S. C.) 308; Collins v. Hope, 3 Wash. 
 (U. S.) 149; Hayward v. Middleton, 3 
 McCord 121. And whether such is 
 the case with regard to the usage in 
 question, must generally be tried 
 like other matter.s of fact, by the 
 jury, if there be one. See lieald v. 
 Cooper, 8 Me. 33 ; Williams v. Oilman, 
 3 Id. 276; Rushford v. Hatfield, 7 
 East 224: Gibson v. Cidver, 17 Wend. 
 306 ; Van Ness v. Pacard, supra. The 
 usage need not be general, i. e., ex- 
 tending over the whole country. It 
 will be seen by the cases already 
 cited, that usages of particular 
 classes, and peculiar to certain local- 
 ites, have been freely received. 
 Many of the cases cited infra will be 
 found full to this point. Indeed, the 
 doctrine extends to the admission 
 of usage at individual houses and 
 offices, provided the usage is brought 
 home to the knowledgo of the par- 
 ties in some way, so as to establish 
 that tljey contracted in reference to 
 it. See Oabay v. Lloyd, 3 B. & C. 
 793. And see the cases supra as to 
 usages at banks. Wood v. Hikock, 2 
 Wend. 501. Its antiquity, moreover, 
 is of no importance, further than as 
 a circumstance in aid of the main 
 point, which is to show that the par- 
 ties knew of the usage and intended 
 to adopt it as the law of their con- 
 tract. Per Cur. in Thompson v. 
 Hamilton, 12 Pick. 425, 428, 429; 
 Kendall v. Russell, 5 Dana 503. 
 
 "5 TJhde v. Walters, 3 Camp. 16. See 
 also Brough v. Whitmore, 4 T. E. 210; 
 Anderson v. Pitcher, 2 B. & P. 168. 
 
ADMISSIBILITY OP THE PROOF OF THESE. 59 
 
 contract in the sense in which it is ordinarily employed by 
 miners.® But the custom and usage must be general and 
 universal, and' not the practice or course of dealing of a 
 particular firm or house of trade.'' 
 
 As to Terms of Art, &o. 
 
 Sec. 42. The meaning of all words and terms of art, and 
 specifications of quantity, quality, weight and measure, are 
 regulated and controlled by local custom, unless the terms 
 have been selected, and a definite meaning given to them by 
 the legislature.* Evidence of general usage, in the trade to 
 which the contract refers, is admissible to give a particular 
 and peculiar sense to the words employed, as the parties may 
 be presumed to have contracted in conformity with the cus- 
 tom, and to have used the words in their customary trade 
 acceptation. A memorandum of a conti-act of sale was in 
 the terms following : " Sold Mr. W. S. 18 pockets of Kent 
 hops, at 100s. ;" and it was held that oral evidence was 
 admissible to show that, by the usage of trade, a contract so 
 worded was understood to mean £5 per cwt., and that the 
 hops consequently were to be weighed, and the price ascer- 
 tained, according to the weight of the article, and that the 
 100s. was not to be paid per pocket, without reference to 
 the weight of the contents of sach pocket.^ But to vary the 
 meaning of plain words, the existence of the custom must be 
 " clear, cogent and irresistible." Two witnesses stated that 
 the usual practice of the trade to Sydney was to consider 
 steerage passengers as " cargo," and their passage money as 
 " freight ;" but could give no instances of such construction 
 
 " Clayton v. Gregson, 5 Ad. & E 302; ^ Gabay v. Lloyd, 3 B. & C. 797. 
 
 Hunt V. Olis Company, 4 Met. (Mass.) » Taylor v. Briggs, 2 C. & P. 525 ; 
 
 464; Batterman v. Pierce, 3 Hill (N. Hutchinson v. Bowker, 5 JM. & W. 535. 
 
 Y.) 174; Parrot v. Thatcher, 9 Pick. ^ See Eyre v. Marine Ins. Co., 5 W. 
 
 (Mass.) 426 ; Collins v. Hope, 3 Wash. & S. (Penn.) 116 ; Allegre v. Maryland 
 
 (U. S.) C. C. 149; Trott v. Wood, 1 Ins. Co. 2 G. & J. (Mass.) 136; Macy 
 
 Q-all. (U. S.) 443; Daivson v. Kettle, 4 v. Whaling Ins. Co., 9 Meto. 354; 
 
 Hill (N. Y.) 107. Spicer v. Cooper, 1 Q. B. 424. 
 
60 AS TO CUSTOMS OF THE COUNTRY AND THE 
 
 within their own knowledge, and it was held that the evi- 
 dence was insufficient to establish a usage of trade, so as to 
 vary the prima facie meaning of the words cargo and freight 
 in a written contract.-^ A usage of trade can never be set up 
 in contravention of a statute, or in opposition to a plain and 
 clearly expressed intention. If there are peculiar expres- 
 sions used in a contract or lease, which have in a particular 
 place or trade a known meaning attached to them, it is for 
 the jury to say what the meaning of those expressions was, 
 but for the court to decide what the meaning of the contract 
 is.- The import and meaning of words at length cannot be 
 contradicted or altered by figures. Where the figures and 
 words of a bill of exchange or a promissory note, for example, 
 disagree, the courts will give force to the words at length, in 
 preference to the figures, for the reason assigned by Marius, 
 " because a man is more apt to commit an error with his pen 
 in writing a figure than he is in writing a word." 
 
 Rule in Wigglesworth v. Dallison. 
 
 Sec. 43. In the leading case upon this branch of our sub- 
 ject {Wigglesworth v. Dallison) [i), which was an action of 
 trespass for moving, carrying away and converting to the 
 defendant's own use the corn of the plaintiff, growing in a 
 farm, in the county of Lincoln, of which the plaintiff had 
 been the tenant, it was pleaded by way of replication that 
 within the parish of Hibaldstow, wherein the farm was 
 situated, " there now is, and from time whereof the memory 
 of man is not to the contrary, there hath been, a certain 
 ancient and laudable custom there used and approved of, 
 that is to say, that every tenant and farmer of any lands 
 within the same parish for any term of years which hath 
 expired on the first day of May in any year, hath been used 
 
 1 Leiois V. Marshall, 13 Law J. C. P. 542 ; 8 ib. 823 ; Trumxan v. Loder, 11 
 193. Ad. & E. 599 ; Sotilichos v. Kemp, 3 
 
 2 Hutchinson v. Bowker, 5 M. & W. E.xch. 105. 
 
 (i) 1 Dougl. 2U7 ; 1 Smith's Lea. Cas. (sixth ed.) 539. 
 
ADMISSIBILITY OP THE PROOF OF THESE. 61 
 
 and accustomed, and of right ought to have, take and enjoy 
 to his own use, and to reap, cut and carry away, when ripe 
 and fit to be reaped and taken away, his 'way-going crop ; 
 that is to say, all the corn growing upon the said lands, 
 which hath before the expiration of such term been sown by 
 such tenant upon any part of such lands not exceeding a 
 reasonable quantity thereof in proportion to the residue of 
 such lands, according to the course and usage of husbandry 
 in the same parish, and which hath been left standing and 
 growing upon such lands at the expiration of such term of 
 years." The jury found the custom in the words stated. 
 An arrest of judgment was afterwards moved, on the ground 
 that such a custom was repugnant to the terms of the deed ; 
 and a rule to show cause was granted, and three objections 
 were urged on behalf of the defendants : 1. That the custom 
 was unreasonable ; 2. That it was uncertain ; 3. That it was 
 repugnant to the deed under which the plaintiff had held. 
 There Lord Mansfield held that the custom was good, and 
 said: " It is just, for he who sows ought to reap, and it is for 
 the benefit and encouragement of agriculture. It is, indeed, 
 against the general rule of law concerning emblements which 
 are not allowed to tenants who know when their term is to 
 cease, because it is held to be their fault or folly to have sown 
 when they knew their interest would expire before they 
 could reap.(^) But the custom of a particular place may 
 rectify what otherwise would be imprudence or folly." (^) 
 
 Custom as to Course of Husbandry. 
 
 Sec. 44. In the case of Dolby v. Hunt,{m) which is next, 
 
 [k) See 14 & 15 Vict. c. 25, which (m) 1 B. & B. 224 ; see also Roberts 
 
 gives the tenant a right to occupy v. Baker, 1 Cr. & M. 808, where the 
 
 until the end of the current year of question was whether a covenant in 
 
 his tenancy, in lieu of emblements. a lease whereby the tenant bound 
 
 (I) Beaven v. Delahay, 1 H. Bl. 5; himself not, on quitting the land, to 
 
 Boraston v. Green, 16 East 71 ; Calde- sell or take away the manure, but to 
 
 cott V. Smifties, 7 C. & P. 108 ; Griffiths leave it to be expended by the suc- 
 
 V. Puleston, 13 M. & W. 358. ceeding tenant, excluded the custom 
 
62 AS TO CUSTOMS OF THE COUNTRY AND THE 
 
 in point of time, to that just referred to, a usage for the off- 
 going tenant of a farm in a particular district to bestow his 
 work, labor and expense in manuring, tilling, fallowing and 
 sowing, according to the course of husbandry, and for the 
 landlord to pay him a reasonable compensation in respect 
 thereof, was held a valid and reasonable custom, (n) 
 
 Where Lease is Silent as to Time— Custom as to Allowance 
 for Seeds— Stipulation in Lease. 
 
 Sec. 45. Again, in another case, it was held that, although 
 the express terms of a lease cannot be controlled by the 
 custom of the country, if the lease is entirely silent as to 
 the time of quitting, evidence of the custom of the country 
 may be given to fix the time.(o) These cases indicate under 
 what circumstances a custom may be proved to explain, vary 
 or extend a written agreement ; but the whole subject was 
 so admirably dealt with by Baron Parke, in delivering the 
 judgment of the Court of Exchequer in the case of Hutton 
 V. Warren,{p) that we make no apology for using his clear 
 words in tbis place. In that case it was decided that a cus- 
 tom of the country, by which the tenant of a farm, cultivating 
 it according to the course of good husbandry, is entitled on 
 quitting to receive from the landlord or incoming tenant a 
 reasonable allowance for seeds that are bestowed on the arable 
 land in the last year of the tenancy, and is bound to leave 
 the manure for the landlord if he will purchase it, was held 
 
 of the country, by -which the out- respect there was no necessity for 
 going tenant was bound to leave the any stipulation, as, by custom, the 
 manure and was entitled to be paid tenant would be bound to leave the 
 for it. The court held that it did. In manure, and would be entitled to be 
 that case Lord Lyndhurst said : " It paid for it. It was altogether idle 
 was contended that the stipulation therefore to provide for one part of 
 to leave the manure was not incon- that which was sufficiently provided 
 sistent with the tenant's being paid for by the custom unless it was in- 
 fer what was so left, and that the tended to exclude the other part." 
 custom to pay for the manure might (n) 3 Moore, 536; 1 B. & B. 224. 
 be engrafted on the engagement to (o) Webh v. Plummer, 2 B. & A. 746. 
 leave it. But if the parties meant to (p) IM. &W. 466; 2 Gale 71. 
 be governed by the custom in this 
 
ADMISSIBILITY OF THE PKOOF OF THESE. 
 
 63 
 
 not to be excluded by a stipulation in the lease under which 
 he held, that he will consume three-fourths of the hay and 
 straw on the farm, and spread the manure arising therefrom, 
 and leave such of it as shall not be so spread on the land for 
 the use of the landlord on receiving a reasonable price for it. 
 
 As to Commercial Transactions — Principle of Admission of Cus- 
 tom—The Policy of This. 
 
 Sec. 46. In the course of his judgment the learned judge 
 said : (5') " It has long been settled, that, in commercial trans- 
 actions, extrinsic evidence of custom and usage is admissible 
 to annex incidents to written contracts, in matters with respect 
 to which they are silent, (r) The same rule has also been 
 
 (q) 1 M. & W. at p. 475. 
 
 (?•) Evidence of usage and custom 
 cannot be admitted to vary or con 
 trol the express terms of a contract, 
 but they may be admitted to deter- 
 mine that which, by the contract, is 
 left undetermined. And the custom 
 must be of such antiquity, extent 
 and universality as to warrant the 
 conclusion that it was linown to the 
 contracting parties, and that they 
 made their contract with reference 
 to it. Dixon v. Dunham, 14 111. 324. 
 By antiquity, it is not meant that 
 the usage must have existed for a 
 period requisite to give it the char- 
 acter of a custom, but that it should 
 have existed long enough to engraft 
 itself as an incident upon the trade, 
 business or matter to which it tc- 
 lates. Thus, where there is a con- 
 tract for the delivery of shingles by 
 the thousand, it may be shown that, 
 by the general, weli-established, and 
 known custom of the trade, two 
 bundles of a certain size represent 
 a thousand; and when such custom 
 is shown, the parties will be pre- 
 sumed to have contracted with re- 
 ference to it. Soulier v. Kellerman, 
 
 18 Mo. 509. The usage must have 
 existed long enough to warrant a 
 presumption that it was known to 
 those engaged in the trade. The 
 more ancient the usage, the stronger 
 is the presumption that it has en- 
 tered into a given contract. Town- 
 send V. Whitby, 5 Harr. (Del.) 55. 
 That is, the value of a usage is 
 largely regulated by the length of 
 its existence. The rule as generally 
 expressed is that, to make a usage 
 obligatory it must have existed for 
 such a period that it is generally 
 known in the business to which it 
 relates, and must be certain, uni- 
 form and reasonable. Collins v. 
 Hope, 3 Wash. (Va.) 150; Kapp v. 
 Palmer, 3 Watts (Pa.) 178; Thomas 
 V. Graves, 1 Mill (S. C.) Const. 308; 
 Thomas v. O'Hara, Id. 303 ; Chastain 
 V. Bowman, 1 Hill (N. Y.) 270; Trott 
 V. Wood, 1 Gall. (U. S.) 443 ; Lewis v. 
 Thatcher, 15 Mass. 433 ; United States 
 V. Duval, Gilp. (U. S.) 356; Barksdale 
 V. Brown, 1 Nott & M. (S. G.) 519; 
 Buck V. Grimshaw, 1 Edw. Ch. (N. Y.) 
 147 ; Smith v. Wright, 1 Cai. (N. Y.) 
 45; Somerby v. Thompson, Wright 
 (Ohio) 573 ; Consequa v. Willings, Pet. 
 
64 
 
 AS TO CtrSTOMS OF THE COUNTRY AND THE 
 
 applied to contracts in other transactions in life in which 
 known usages have been established and prevailed, and this 
 
 (U. S.) C. Ct. 230; Touro v. Cassin, 1 
 Nott & M. (S. C.) 176; Davis v. New 
 Brig, Gilp. (U. S.) 486; Harper v. 
 Pound, 10 Ind. 32 ; Foley v. Mason, 
 6 Md. 37 ; Register v. Spencer, 24 Md. 
 520 ; Shackelford v. New Orleans, &c., 
 JR. R. Co , 37 Miss. 202 ; Smith v. 
 Gibbs, 44 N. H. 335. A usage may 
 be proved, though not ancient or 
 general. Townsend v. Whitby, 5 Harr. 
 (Del.) 55. Such evidence cannot be 
 admitted to explain a contr.ict when 
 no ambiguity exists. Wadsworth v. 
 Alcott, 6 N. Y. 64. Nor if it is local 
 and confined to a small part of the 
 country in which the party sought 
 to or charged by it did not reside, 
 and about which there was nothing 
 to put him on inquiry. Latimer v. 
 Alexander, 14 Ga. 259. Although 
 custom or usage will not be admitted 
 to contradict a stipulation in writing, 
 it is admissible to add new terms 
 not expressed in or covered by the 
 writing. Alabama and Tennessee 
 Rivers R. R. v. Kidd, 29 Ala. 221. 
 An isolated instance is not sufficient 
 to prove a custom, nor will evi- 
 dence of the custom of one person 
 be sufficient to establish a general 
 course of trade. Buit v. Sickles, 17 
 Ark. 428. But it may enter into and 
 become a part of the law of trade, or 
 the law be applied to the transac- 
 tions of parties contracting wnd 
 doing business in view of, and in 
 reference to, such usage. Power v. 
 Kane, 5 Wis. 265. But in order to 
 establish a usage us affecting a con- 
 tract, the party claiming the benefit 
 of it must show tliat it is so general 
 and well established that the parties 
 or all persons dealing in the business 
 to which it applies are presumed to 
 
 have knowledge of it, and to con- 
 tract in reference to it. Martin v. 
 Hall, 26 Mo. 386. And a usage (not 
 commercial) to influence the mean- 
 ing of plain words, not technical, in 
 a written contract, must be long 
 continued, uniform and generally 
 known ; probably it should not be 
 confined to a county, but should be 
 shown to extend over the State. 
 Harper v. Pound, 10 Ind. 32. And 
 the fact that the words of themselves 
 are susceptible of an interpretation 
 apparently consistent with the inten- 
 tion of the parties, does not exclude 
 such proof. If the words are shown 
 to have acquired a well-known tech- 
 nical meaning, that will be taken to 
 be the sense in which they were 
 used. Thus in replevin for marble 
 retained by the carrier for the costs 
 of transportation, the question in 
 dispute was, whether marble in slabs 
 was wrought or unwrought, the 
 charge for the former being more 
 than for the latter. Evidence being 
 heard, the court instructed the jury 
 "that the terms wrought and un- 
 wrought, as applied to marble, are 
 words of doubtful signification, and 
 it was competent for the plaintiff to 
 show what meaning is given to them 
 by custom and usage; that such 
 custom, in order to bind the defend- 
 ant, need not be universal, settled or 
 uniform among dealers and carriers. 
 If the jury believe from the evidence 
 that the generally prevailing usage 
 among manufacturers, dealers and 
 carriers, is to class and consider 
 marble in slabs as unwrought, then 
 the defendant can claim freight on 
 it only as of that class." It was 
 held that the jury were properly 
 
ADMISSIBILITY OF THE PROOF OF THESE. 
 
 66 
 
 has been done upon the principle of presumption that, in 
 such transactions, the parties did not mean to express in 
 writing the whole of the contract by which they intended to 
 be bound, but to contract with reference to those known 
 usages, (s) Whether such a relaxation of the strictness of 
 
 instructed. Bancroft v. Peters, 4 
 Mich. 619. Where, in the absence 
 of any statutory provision, a rule of 
 commercial law has been adopted, 
 by the court of last resort, in a State, 
 the usage will thenceforth be held to 
 conform thereto, throughout the 
 State, and this can only be rebutted 
 by clear proof of a uniform and 
 settled local usage to the contrary. 
 Isham V. Fox, 7 Ohio St. 317. Bank 
 of Columbia v. Fitzhugh, 1 H. & G. 
 (Md ) 239; Branch v. Burnley, 1 Cal. 
 ( Va.) 159; Consequa v. Willing, 1 Pet. 
 (U. S. C. C.) 230. The custom and 
 understanding of the merchants in 
 a particular trade, cannot be received 
 in evidence, to vary well-established 
 rules of law applicable to their trans- 
 actions in it; and hence, cannot be 
 admitted to prove that the barter 
 or exchange of a promissory note, 
 endorsed without recourse, for cot- 
 ton or any other species of merchan- 
 dise, carries with it no implied 
 warranty of the past or future solv- 
 ency of the maker of the note. 
 Beckwith v. Farnum, 5 E. I. 230. 
 
 (s) See Gibson v. Small, 4 H. of L. 
 Cas. 397, per Parke, B. The general 
 rule, that a contract complete on its 
 face, in all its parts and purporting 
 to be the exclusive expositor of the 
 sense of the parties, shall not receive 
 additions from parol evidence, is 
 subject to the exception that a well- 
 known and well-established usage 
 may be shown to add incidents 
 thereto, that are not inconsistent 
 with the express terms of the con- 
 
 tract. Dixon V. Dunham, 13 111. 324 ; 
 Cooper V. Kane, 19 Wend. (N. Y.) 
 386 ; Leach v. Beardslee, 22 Conn. 404 ; 
 Alabama R.. R. Co. v. ICidd, 29 Ala. 
 221, and as tending to show the 
 nature of the contract and the real 
 intention of the parties thereto. 
 Naylor v. Semmes, 4 G. & J. (Md.) 
 274; Loring v. Gurney, 5 Pick. (Mass.) 
 15 ; Thompson v. Hamilton, 12 Id. 
 425, and the manner in which the 
 business was done. Fox v. Parker, 
 44 Barb. (N. Y.) 541. This rule is 
 predicated upon the principle of 
 presumption that the parties did 
 not mean to expres.s the whole of 
 the contract in writing by which 
 they intended to be bound, but made 
 their contract in reference to the 
 usage, and in such cases the usage 
 is as much a part of the contract as 
 though it had actually been incor- 
 porated therein. Pamer v. ICaiif, 5 
 Wis. 265 ; Hursh v. North, 40 Penn. 
 St. 241; Stultz V. Dickey, 5 Binu. 
 (Penn.) 287 ; Boorman v. Johnson, 12 
 Wind. (N. Y.) 574; Barber v. Bract', 
 3 Conn. 9; Ladwick v. Ohio Ins. Co.., 
 5 Ohio 436 ; Inglebright v. Hammond, 
 19 Ohio 337; Lampoon v. Gazzam, 6 
 Port. (Ala.) 123; Munn v. Burch, 25 
 111. 35 ; Sewallv. Gibbs, 1 Hall (N. Y.) 
 612; United States v. Arredondo, 6 Pet. 
 (U. S.) 715; Bank of Columbia v. 
 Fitzhugh, 1 H. & G. (Md.) 239. This 
 rule, however, must be understood 
 as applying only in those cases 
 where the usage is well established, 
 certain, uniform and reasonable. 
 Wheeter v. Newbold, 5 Ducr. (N. Y.) 
 
 5 
 
66 
 
 AS TO CUSTOMS OF THE COUNTKY AND THE 
 
 the common law was wisely applied where formal instruments 
 have been entered into, and particularly leases under seal, 
 
 29 ; Sipperly v. Steivard, 50 Barb. 
 (N. Y.) 62; Martin v. Maynard, 16 
 N. H. 165 ; Haven v. Wentworth, 2 Id. 
 93; Dugnid v. Edwards, 50 Barb. 
 (N. Y.) 287; Kendall v. Rimell, 5 
 Dana (Ky.) 501; Stevens v. Reeves, 9 
 Pick. (Mass.) 198; Watt v, Haek, 25 
 Penn. St. 411; Searson v. Heymand, 
 1 Spears, (S. C.) 249; Goodnow v. 
 Parsons, 36 W. 46; Clanmorgan v. 
 Guisse, 1 Mo. 141. A good illustra- 
 tion of this rule is to be found in the 
 commercial usage by whicli grace 
 is allowed upon a note or bill of 
 exchange payable at a day certain. 
 Thus, a note is made payable in 
 sixty days from its date, commercial 
 usage steps in and postpones the 
 payment for three days, malting it 
 payable only until after the lapse of 
 sixty-three days, and, in cases where 
 this usage applies, so effective is it 
 that a suit brought or protest made 
 before the lapse of sixty-three days, 
 is entirely inoperative. In tliese 
 cases, the parties are supposed to 
 contract in reference to tlie law as it 
 exists at the time, and the only dif- 
 ference between taking that and a 
 custom is that the latter is a binding 
 law on particular persons, places 
 and things ; and, although there are 
 some exceptions, yet in many cases 
 the maxim expressum facit. cessare 
 taciturn, applies as well to an incident 
 sought to be annexed to a contract 
 by the general law, as by a special 
 custom. Cherry v. Holly, 14 Wend. 
 ,{N. Y.) 26; Boorman v. Johnson, 12 
 Id. 566; Barber v. Brace, 3 Conn. 
 9; Wilcox V. Wood, 9 Wend. {N. Y.) 
 349 ; Lawrence v. McGregor, 37 Penn. 
 St. 192 ; Daggett v. Snowden, 2 Black 
 (U. S.) 226; Heald \. Cooper, 8 Me. 
 
 32 ; Dana v. Fielder, 1 E. D. S. (N. 
 Y. C. P.) 463; Crosby v. Wyatt, 23 
 Me. 156 ; Avery v. Stewart, 2 Conn. 
 0. G. As previously stated, a usage, 
 in order to be incorporated in a 
 contract, must not be impliedly ex- 
 cluded thereby, and moreover it 
 must be uniform and general. Thus, 
 an agreement to endorse any paper 
 whicli W. may give " for purchases 
 made " does not cover a claim for 
 labor performed in rolling iron 
 which had been so purchased to 
 prepare it to be manufactured in 
 a wire mill, unless a general usage 
 is proved to include such labor 
 under that term ; and evidence that 
 in contracts of the kind in contro- 
 versy, made for supplying a wire 
 mill, such labor, according to the 
 well-understood and general usage 
 of the business, is a purchase, does 
 not show a use so general as to jus- 
 tify the assumption that parties 
 guaranteeing the payment of pur- 
 chases intended to become liable for 
 charges for such labor. Schlessinger 
 V. Dickinson, 5 Allen (Mass.) 47. A 
 written contract for the manufacture 
 of iron articles as retorts cannot be 
 affected by proof of a custom that, 
 in the absence of an express agree- 
 ment, founders shall nut be held to 
 warrant their castings against latent 
 defects ; or that, in case of apparent 
 defects, they shall be entitled to 
 have castings returned to them 
 within a reasonable time, and to 
 replace them with new ones. Whit- 
 more V. South Boston Iron Co., 2 Id. 
 52. And it is generally held that 
 such usage must not conflict with 
 the rules of law. Thus, a usage that 
 when manufactured goods are sold 
 
ADMISSIBILITY OF THE PROOF OF THESE. 
 
 67 
 
 may well be doubted ; but the contrary has been established 
 by such authority, and the relations between landlord and 
 tenant have been so long regulated upon the supposition that 
 all customary obligations not altered by the contract are to 
 remain in force that it is too late to pursue a contrary course, 
 and it would be productive of much inconvenience if this 
 practice were now to be disturbed. (^) 
 
 by sample, and both the goods and 
 the sample have a latent defect 
 ■which cannot he discovered by ordi- 
 nary care by the purchaser, which 
 defect when discovered makes the 
 goods unmerchantable, except as 
 damaged goods, the seller is to make 
 good to the purchaser the damage 
 occasioned by such defect, is not 
 valid, being in conflict with the law 
 in such cases. Dickinson v. Oay, 7 
 Allen (Mass.) 29. The same rule 
 has also been held as to a custom or 
 usage that goods sold shall be of 
 such a quality as to be approved by 
 the buyer or a public inspector, is 
 an implied warranty or stipulation 
 as to quality, and therefore contrary 
 to the rule of law that in a contract 
 of sale there is no such implied war- 
 ranty. Boardman v. Spooner, 13 Id. 
 860. So as to the power of an agent 
 or factor. Thus, a merchandise 
 broker can have no implied author- 
 ity, from the usage of trade, to war- 
 rant goods sold by him to be of 
 merchantable quality ; and evidence 
 to prove such usage is inadmissible ; 
 and a memorandum made by such 
 broker of a contract for the sale of 
 goods is invalid and inadmissible in 
 evidence, if he has inserted therein, 
 without express authority, a war- 
 ranty by the seller that they are of 
 merchantable quality. Dodd v. Far- 
 low, 11 Allen (Mass.) 426. 
 
 {t) A custom may be proved that 
 
 upon a. sale of berries in bags by 
 sample, the sample represents the 
 average quality of the entire lot. 
 Sohnitzer v. Oriental Paint Works, 114 
 Mass. 128. But evidence is not ad- 
 missible that by a local custom of 
 .merchants, not shown to be known 
 to the buyer, there is an implied 
 warranty that goods are not falsely 
 or deceitfully'' packed. Barnard v. 
 Kellogg, 10 Wall. 383; and see the 
 American note to Wigglesworth v. 
 Dallison, 1 Sm. Lead. Cas. Nor can 
 a custom be proved limiting the 
 time of the purchaser to examine 
 and return the goods, unless the cus- 
 tom is so uniform and notorious that 
 it must be presumed that the parties 
 contracted in view of it. Webster v. 
 Granger, 78 111. 230. In Sturges v. 
 Buckley, 32 Conn. 265, the eflfect of a 
 usage or custom of a trade, in over- 
 coming an implied contract, was 
 well illustrated. In that case the 
 defendant was engaged in the busi- 
 ness of forwarding farmers' produce 
 by a railroad running into New York, 
 and selling it on commission. He 
 took of the plaintiff a quantity of 
 cider in barrels, disposed of it with 
 the barrels, and returned other bar- 
 rels, equal in number and value. 
 These the plaintiff refused to re- 
 ceive, and brought trover for the 
 original ones. It was held that evi- 
 dence was admissible of a custom 
 existing among forwarders of pro- 
 
68 
 
 AS TO CUSTOMS OF THE COTJNTEY AND THE 
 
 Silence of Common Law — Away-Going Crop — Tenant-Right — 
 Custom not Inconsistent Admitted— Operation of Custom. 
 
 Sec. 47. The common law does so little to prescribe the 
 
 relative duties of landlord and tenant, since it leaves the 
 
 duce, by that and other roads and 
 by vessels to New York, of leaving 
 the barrels with their contents in 
 such a case, and returning other 
 barrels, equal in number and value. 
 But such a custom to be binding, 
 must be reasonable and followed in 
 all cases, by all persons along the 
 line (if the same roads following the 
 business of the plaintiff, and it must 
 have been established so long that 
 the plaintiff and all persons living in 
 the vicinity could be presumed to 
 have known of it, and acted in refer- 
 ence thereto. While evidence of a 
 usage is not admissible to vary a 
 special contract, yet it is admissible 
 to show in what manner the business 
 is done, although the contract is 
 precise in its terms. Fox v. Parker, 
 44 Barb. (N. Y.) 541. In Foley v. 
 Mason, 6 Md. 37, it was held that 
 evidence of a usage is not admissible 
 to overcome a general principle or 
 rule of law, or to vary the term of a 
 contract, but that it may be admitted 
 to add to or explain a contract, but 
 that in order to be admissible for 
 that purpose, it must be certain, 
 uniform and notorious, and that 
 evidence of a usage " to deliver 
 merchandise sold for cash, without 
 receiving the cash simultaneously 
 with the delivery, and without the 
 vendor's thereby waiving the right 
 to the cash," supported by testimony 
 that "it was then, and now is, the 
 general usage among flour dealers 
 in the city of Baltimore," and by 
 another witness, "that in sales of 
 flour for cash in the city of Balti- 
 more, it is the general and constant 
 
 usage," is too vague and unmeaning 
 to warrant the court to submit any 
 proposition to the jury based upon 
 it. ^^'here goods are sold by an 
 agent or commission merchant 
 under instructions to sell for cash, 
 evidence of a usage to treat a rule 
 upon a, short credit as a sale for 
 cash, is not admissible, because such 
 a usage is fully established, is unrea- 
 sonable and therefore invalid. Stew- 
 art v. Scudder, 21 N. J. L. 96. But 
 where nothing is said as to the time 
 when goods delivered sh.all be paid 
 for, evidence of a usage of trade in 
 that respect is admissible to fix the 
 time. Thus, in Outwater v. Nelson, 
 20 Barb. (N. Y.) 29, in an action on 
 a receipt of a quantity of corn in 
 store " on freight," it is competent 
 for the defendant to prove a custom 
 of the place, which had continued 
 forty years, to pay for corn so left, 
 after the owner had ordered it to be 
 freighted, and not before, and that 
 this custom was known to the plain- 
 tiff, and that he had been in the 
 habit for many years of leaving 
 grain at the same place, to be 
 freighted on the same terms, and if 
 established the custom is binding on 
 the parties. In Potter v. Murland, 3 
 Gush. (Mass.) 384, it was held that 
 where goods are consigned to an 
 agent for sale, with general instruc- 
 tions to remit the proceeds, it is a 
 sufficient compliance with such 
 instructions, if the agent remit by a 
 bill of exchange, without endorsing 
 or guaranteeing it provided such is 
 the usage at the agent's place of 
 business, and the agent use proper 
 
ADMISSIBILITY OF THE PROOF OF THESE. 69 
 
 latter at liberty to j)ursue any course of management he 
 pleases, provided lie is not guilty of waste, that it is by no 
 means surprising that the courts have been favorably inclined 
 to the introduction of these regulations in the mode of culti- 
 vation which custom and usage have established in each dis- 
 trict to be the most beneficial to all parties. " Accordingly, 
 in Wigglesworth v. Dallison, afterwards aflBrmed in a writ of 
 error, the tenant was allowed an away-going crop, though 
 there was a formal lease under seal. There the lease was 
 entirely silent on the subject of such a right, and Lord 
 Mansfield said that the custom did not alter or contradict 
 the lease, but only superadded something to it. The ques- 
 tion subsequently came under the consideration of the Court 
 of King's Bench, in the case oi Senior v. Armitage, reported 
 in Mr. Holt's Nisi Prius Cases, [u) In that case, which was 
 an action by a tenant against his landlord for compensation 
 for seed and labor under the denomination of tenant-right, 
 Mr. Justice Bayley, on its appearing that there was a written 
 agreement between the parties, non-suited the plaintiff. The 
 court afterwards set aside that non-suit, and held, as appears 
 by a manuscript note of that learned judge, that though 
 there was a written contract between landlord and tenant, 
 
 diligence and discretion in the pur- admissible to show that when shoes 
 chase of the bill. In an action are ordered, it is the usage and 
 against the agent, to recover the course of the shoe business, when 
 proceeds of such a sale, proof of the no special mode of conveyance is 
 usage and of a remittance accord- mentioned by the purchaser, for the 
 ingly is a sufficient prima facie de- manufacturer to take the shoes to 
 fence ; and if it is established by the 'Boston, at his own risk and cost, and 
 agent, the burden of proof is then there deliver them to some regular 
 on the principal to show that bills line of packets running to the pur- 
 remitted in pursuance of the usage chaser's place of business, and take 
 ought to be endorsed or guaranteed duplicate bills of lading, and forward 
 by the agent. Evidence of usage is one of them to the purchaser, by 
 admissible to establish a delivery of mail, and that from that time the 
 property sold. Thus, in Putnam v. delivery is complete, and the pur- 
 Lillatson, 13 Met. (Mass.) 577, where chaser takes the risk of loss, 
 shoes were sold to a distant pur- [u) P. 179. See also Woodfall, 
 chaser, it was held that evidence was Landlord and Tenant, p. 989, 10th ed. 
 
70 AS TO CUSTOMS OF THE COUNTKY AND THE 
 
 the custom of the country would still be binding if not incon- 
 sistent with the terms of such written contract; and that not 
 only all common law obligations, but those imposed by cus- 
 tom, were in full force where the contract did not vary them. 
 Mr. Holt appears to have stated the case too strongly when 
 he said that the court held the custom to be operative 'unless 
 the agreement in express terms excluded it ;' and probably 
 he has not been quite accurate in attributing a similar opinion 
 to the Lord Chief Baron Thompson, who presided on the 
 second trial. It would appear that the court held that the 
 custom operated unless it could be collected from the instru- 
 ment, either expressly or impliedly, that the parties did not 
 mean to be governed by it. 
 
 As to Terms on which Tenant May Quit. 
 
 Sec. 48. On the determination of an agricultural Or farm- 
 ing lease, by effluxion of time, it has been held that the 
 custom of the country, in the absence of any express agree- 
 ment to the contrary, regulates the terms on which the 
 tenant may quit possession,^ but if there is any express stipu- 
 lation to that end, the custom of the country yields to it* 
 accordingly, where a lessee covenanted that he would not 
 during the term carry from oif the premises any hay, straw, 
 fodder, &c., but would yearly spend and use the same upon 
 some proper part thereof, upon pain of forfeiting £3 for each 
 load carried away ; and would also at all times during the 
 term fold his flock of sheep which he should keep upon the 
 premises upon such parts where the same had been usually 
 folded, upon the penalty of £3 a time for every time that 
 the same should be folded off from the premises ; and would 
 also in the last year of the term, at the usual time, carry all 
 the dung and manure arising on the premises in the pre- 
 ceding year to such parts of the fallowed lands as should be 
 
 ^Hutton V. Warren, ante; Roh- Holding x. Piggott, 7 Bing. 465. 
 erta v. Barken, 1 C. & M. 808; -^ Webb v. Plummer, ante; Hutlon 
 
 Webb V. Plummer, 2 B. & Alil. 746; v. Warren, ante. 
 
ADMISSIBILITY OF THE PKOOF OF THESE. 71 
 
 appointed by the lessor, his heirs or assigns, or the next suc- 
 ceeding tenant or tenants, and there cast the same into a 
 mixen or mixens, he and they paying for fallowing such 
 land and carrying out the dung, but nothing for the dung 
 itself, and also grass in the ground, and for thrashing out 
 the corn, as was customary between a tenant coming in and 
 a tenant going out of a farm ; it was held, that as certain 
 payments were specifically directed to be made by the 
 incoming tenant, but payment for foldage was not men- 
 tioned, the custom of the country which gave the outgoing 
 tenant a compensation for foldage was waived.'' So, where 
 a tenant held under the terms of an exjoired lease, by which 
 it was stipulated that the lessee on quitting the farm should 
 not sell or take away the manure, but should leave it to be 
 expended on the land by the landlord, or his succeeding 
 tenant; the custom of the country requiring the tenant to 
 leave the manure, on payment for it by the landlord or his 
 succeeding tenant ; it was held, that the custom was con- 
 trolled by the express stipulation, and that the tenant, on 
 quitting, was not entitled to be paid for the manure.^ But 
 where a lessee covenanted to spend and consume three parts 
 in four of the hay and straw arising from the glebe land 
 and tithes demised, upon the land, and to bestow the manure 
 arising therefrom upon the land, and to leave such part of 
 such manure as should not be so bestowed, at the determina- 
 tion of the terra, upon the premises, for the use of the lessor, 
 he paying a reasonable price for the same; the custom of 
 the country, by which the tenant was bound to cultivate the 
 farm according to a certain course of husbandry, and was 
 entitled, on quitting, to a fair allowance for seeds and labor 
 on the arable land, and was bound to leave the marmre on 
 the land, if the landlord chose to purchase it, was held not 
 to be excluded.' 
 
 5 Webb V. Plummer, 2 B. & Aid. 746. ' Hulton v. Warren, 2 Gale 71. 
 
 " Roberts v. Barker, 3 Tyrw. 945. 
 
72 AS TO CUSTOMS OF THE COUNTRY AND THE 
 
 Intention to Exclude Custom. 
 
 Sec. 49. "On the second trial,* the Lord Chief Baron 
 Thompson held that the custom prevailed, although the 
 written instrument contained an express stipulation that all 
 the manure made on the farm should be spent on it or left 
 at the end of the tenancy, without any compensation being 
 paid. Such a stipulation certainly does not exclude by 
 implication the tenant's right to receive compensation for 
 seed and labor." After referring to the case of Webb v. 
 Plummer, the learned judge said: "The question there is, 
 whether, from the terms of the lease now under considera- 
 tion, it can be collected that the parties intended to exclude 
 the customary obligation to make allowances for seed and 
 labor." And we have already seen how the court, through 
 Baron Parke, answered the question, (v) Some further deci- 
 sions, although they can scarcely throw more light on the 
 subject after the quotation from Baron Parke's clear and 
 luminous exposition, may illustrate these principles in differ- 
 ent aspects, and indicate the extent of their applicability. 
 
 Custom of Country, when Inoperative. 
 
 Sec. 50. There is an earlier case than that of Hutton v. 
 Warren,{w) which is not referred to in the judgment of the 
 court. It appeared that a tenant by a clause in his lease was 
 bound, " at his removal, to leave upon the land all the dung 
 and manure of the preceding year, the value to be paid by 
 the succeeding tenant, &c. ; and at no time to sell or give 
 away any of the hay or straw of the said farm, which shall 
 always be spent on the ground ;" and the point in dispute 
 was whether the tenant under that contract was or was not 
 entitled to take away or sell the straw of the last or 'way- 
 going crop, and whether, if the tenant threatens to sell tlae 
 straw, the lessor is entitled to have letters of suspension and 
 
 * Of Senior v. Arinitage, ante. 
 
 (■u) See also judgment of Parke, 52, at p. 63. 
 B., in Sutton v. Temple, 12 M. & W. [w) 1 M. & W. 466 ; 2 Gale 71. 
 
ADMISSIBILITY OF THE PKOOF OF THESE. 73 
 
 interdict, (a;) It was held tbat the custom of the country 
 <50uld have no operation in such a case, as there was a con- 
 tract with provisions applicable to the point in dispute, and 
 consequently that letters of suspension and interdict might 
 be had and maintained by the lessor. (2/) 
 
 ■Term of Holding and Operation of Custom — Reason for its 
 Admission in this Case. 
 
 Sec. 51. If a lease contain no stipulations as to the mode 
 of quitting, the off-going tenant is entitled to his 'way-going 
 ■crop, according to the custom of the country even although 
 the terms of holding may be inconsistent with such a cus- 
 tom, (z) Although this might, at first sight, seem repugnant 
 to the doctrine stated above, it will upon examination be 
 found to be in strict conformity with the principle of that 
 doctrine, for the agreement under which the tenant held — in 
 the case in which the above principle was enunciated — was 
 silent altogether as to any terms on which the tenant should 
 •quit, and the clause of the agreement which was inconsistent 
 with the custom of the country was a stipulation confined 
 •expressly to the period of holding by the tenant. It adverted 
 to nothing that was to take place at the end of the tenancy, 
 and spoke only of terms of holding during its continuance. 
 There was, therefore, nothing in such an agreement at vari- 
 a,nce with the application of a custom between landlord and 
 tenant which did not come into force until the expiration of 
 the term. In that case, the rights of the landlord and tenant 
 were governed by the terms of the agreement during the 
 tenancy, and by the terms of the custom immediately after- 
 wards. It is clear that, as the agreement only referred to 
 the continuance of the tenancy, both the landlord and tenant 
 must have anticipated not only an end to the holding, but 
 
 (x) This was an appeal from a Gr07'rfon., 1 Bligh. 287 ; Clinanv. Cooke, 
 
 decision of the Court of Session in 1 Sch. & Let". 22; and White v. Sayer, 
 
 Scotland to the H. of L. Palm. 211. 
 
 (y) Roxburgh [Duke of) v. Robert- [z) Holding v. Pigott,7 Bing. 465. 
 son, 2 Bligh. 156 ; see also Hughes v. 
 
74 AS TO CUSTOMS OF THE COUNTRY AND THE 
 
 must liave looked forward to a time when their mutual rela- 
 tions must be regulated by some other rule than that con- 
 tained in the agreement. As there is nothing said as to the 
 end, there is the ambiguity of silence which the custom of 
 the country can be called upon to explain. 
 
 Custom of Country as to Time— Where Letting is by Deed — 
 "Martinm.as" Explained. 
 
 Sec. 52. The custom of the country has frequently been 
 had recourse to for an explanation where the question of the 
 time of a holding has been left in doubt by the written 
 instrument ; (a) and this is clearly within the rules whick 
 have been stated above. Tiius, where a holding was general 
 from Michaelmas, the custom of the country as to whether 
 that shall be deemed Old or New Michaelmas was held to be- 
 admissible in evidence. (3) Evidence of the custom of the 
 country was held admissible for the purpose of showing that 
 a letting by parol' from Lady-day meant from Old Lady- 
 day. [c) In this case the court referred to the case last 
 mentioned [Furley v. Wood), and distinguished it from Doe 
 V. Lea on the ground that the letting was there hy deed,. 
 " which," according to Holroyd, J., " is a solemn instrument,, 
 and therefore parol evidence was not admissible to explain 
 the expression Lady-day there used, even supposing that it 
 was equivocal." The soundness of this distinction, which 
 seems to have been quite unnecessary in the case, as the con- 
 tract was by parol, has been called in question. It is cer- 
 tainly difficult to see upon what principle it is founded, for 
 the rule as to the inadmissibility of evidence to contradict or 
 vary the terms of a contract is as applicable to contracts 
 which have no seal as to those which have one. It has,, 
 therefore, been argued that it would be rash to infer that, 
 parol evidence would be receivable to explain a word of time 
 
 (a) Martyn v. Clue, 18 Q. B. 661, at p. Hall v. Benson, 4 B. A Aid. 588 ; but 
 682 ; White v. Nicholson, 4 M. & G. 95. see Doe v. Lea, 11 East 312. 
 
 (b) Furh'y v. Wood, 1 Esp. li)S : (c) Doe v. Braso'/i, 4 B. & Aid. 588. 
 
ADMISSIBILITY OF THE PKOOF OF THESE. 75 
 
 used m a lease in writing, but not under seal.(cZ) In another 
 case, where the defendant avowed the rent payable " at 3Iar- 
 tinmas, to wit, November 23d," the plaintiff pleaded non 
 tenuit, and a holding from Old Martinmas having been 
 proved, the court thought that the words after the videlicet 
 must be rejected as inconsistent with the term Martinmas, 
 which they thought themselves bound by statute to interpret 
 November 11th, that no evidence was admissible to explain 
 the record, and that there was therefore a fatal variance 
 between it and the evidence, (e) In a Nisi Prius ease, Erie, 
 C. J., remarked : " The custom of thp country cannot be 
 set up against the legal presumption that Michaelmas means 
 any other day than the 29th September. You must show 
 by direct evidence that this was an Old Michaelmas ten- 
 ancy."(/) 
 
 Custom not Excluded by Terms of Lease. 
 
 Sec. 53. In a case where a custom to pay for fallows was 
 proved, it was held that there was therefore an implied con- 
 tract on the part of the landlord, that if there be no incoming 
 tenant, he will pay the outgoing tenant according to the 
 custom. (_9') Again, where, by the terms of a farm lease for 
 seven years expiring at Michaelmas, the tenant agreed to 
 cultivate the land according to the custom of the country, 
 and " during the term to consume with stock on the farm 
 all the hay, straw and clover grown thereon, which manure 
 shall be used on the farm," and the landlord agreed to let 
 the tenant occupy part of the homestead until Midsummer 
 after the expiration of the term, if necessary, " to end the 
 cropping of the tenant grown on the premises," it was held 
 that the lease did not exclude the custom of the country, by 
 which the tenant having paid for straw on his incoming was 
 entitled to be paid for straw on his quitting. (/i) 
 
 (d) Smith's L. Cas. 6th ed. p. 554. (/) Hogg v. Berringtoii, 2 F. & F. 
 
 (e) Smith V. WaUon, 8 Bing. 238 ; 246. 
 
 see also Kearney v. King, 2 B. <fe Aid. (g) Fariell v. Qaskoin, 7 Exch. 273. 
 
 301. {h) Muncey v. Dennis, 1 H. & N. 216. 
 
76 AS TO CUSTOMS OF THE COTJNTKY AND THE 
 
 Agreement Excluding Proof of Custom. 
 
 Sec. 54. But where an action was brought by a landlord 
 against an incoming tenant, and the declaration stated that, 
 in consideration that the landlord would give up to the 
 tenant possession of the farm, on which manure had been 
 laid, and would permit him to have the benefit of the 
 manure, he promised to pay the landlord for the same 
 according to the custom of the country, and the breach 
 alleged was non-payment, a written agreement was offered 
 in evidence of the custom, which stated that the land had 
 been manured with eight loads of manure per acre, and that 
 the tenant agreed to leave the land, when given u]) by him, 
 in the same state or to allow a valuation to be made. Here 
 it was held that the written agreement excluded the custom 
 of the country, as it was inconsistent with it.{i) 
 
 What Customs are Binding— Custom to Pay for Tillages. 
 
 Sec. 55. A custom not of the country, but prevalent 
 between the owner and tenants of a particular landed estate, 
 is not binding on a tenant who becomes such without notice 
 of its existence. (^) Where the custom of the country was 
 that the tenant should have the 'way-going crops on the 
 regular expiration of a Lady-day tenancy, the tenant entered 
 on Lady-day, but the tenancy was determined on the 1st of 
 June, it was held that the custom would not operate. (Z) In 
 a case where the plaintiff was a tenant on a farm, with a 
 right to use a certain part of premises until 25th March, 
 after the expiration of the term, and where by the custom 
 of the country the plaintiff was entitled, at the expiration of 
 his term, to be paid by the landlord or the incoming tenant 
 for certain tillages, and he gave up his farm to the defendant 
 as incoming tenant at Michaelmas, 1870, before which date 
 the tillages had been valued. After the defendant had 
 
 (i) Clarke \. Roystone, 13 M. & ^^'. [k) Womersley v. Bally, 26 L. J. 
 
 752; Wiltshear v. Coltrell, 1 E. & B. Exch. 219. 
 674. ( I ) Thorpe v. Eyre, 1 Ad. & El. 926. 
 
ADMISSIBILITY OF THE PKOOF OF THESE. 77 
 
 entered into possession, but before the 25th March, 1871, 
 the landlord gave him notice that rent was due from the 
 plaintiff, and required him to pay the amount of the valua- 
 tion, which was less than the rent due to him, the landlord, 
 and not to the plaintiff, which the defendant did, on receiving 
 an indemnity from the landlord, and without the plaintiff's 
 consent. The plaintiff brought his action for the value of 
 the tillages, and was non-suited. And the court held that 
 the non-suit was right, for that the contract to be implied 
 between the incoming and outgoing tenant was subject to 
 the right of the landlord to be paid arrears of rent out of the 
 valuation, (m) 
 
 (m) Stafford v. Gardner, 7 L. R. C. P. 242. 
 
78 THE USAGES OF TEADE AND THEIR 
 
 CHAPTEE III. 
 
 THE USAGES OF TKADE AND THEIR ADMISSIBILITY AS 
 
 EVIDENCE. 
 
 56. rSAGES OF TIIADK IN tlOMMEECIAL (ON- 68. EVIDENCE OF USAGE INDISPENSABLE, 
 
 TRACTS, WHERE. 
 
 67. GENERAL RULI'.S AS TO ORAL ETIDENCE. 69. WHY PAROL EVIDENCE IS ADMITTED— LAW 
 58. COLLATERAL AGREEMENTS. AND EVIDENCE— EVIDENCE THE FOUND- 
 
 ri9. SUBSEQUENT ORAL AGREEMENT — RULE IN ATION OF LAW. 
 
 GOSS V. LORD NUGENT. 70. USAGE OF TRADE AND CUSTOM OF MEK- 
 
 60. COLL.ITERAL AGREEJIENTS. CHANTS TO BE DISTINGUISHED. 
 
 61. GENERAL PRINCIPLE ILLUSTRATED. 71. PARTICULAR GENERAL CUSTOMS. 
 
 62. RULE AS TO EXTRINSIC PAROL EVIDENCE 72. METHOD OP PROOF. 
 
 — PRESU5CPTI0S. 73. THE FORCE OF USAGE. 
 
 €3. USAGE IN RELATION TO AMBIGUITY — THE 74. ELEMENTS TO BE ATTACHED TO USAGE — 
 MEANING OF WORDS. GROWING USAGE— PREVALENT USAGE. 
 
 64. THE LEGAL PRINCIPLES AND USAGE AS EVI- 76. PRINCIPLE OF ADMISSION— KNOWLEDGE OF 
 DENCE. CUSTOM PRESUMED. 
 
 66. AS TO THE EXTENT TO WHICH USAGE SHOULD 76. MAY BE REBUTTED. 
 
 BE ADMITTED TO VARY WRITTEN CON- 77. INCIDENTS OF A USAGE MUST BE REASON- 
 TRACTS— PRACTICE OF TRADERS. ABLE. 
 
 66. ATTEMPTS TO LIMIT SCOPE OF CUSTOM — 78. VOID USAGES. 
 
 WRITTEN CONTRACT TO SPEAK. 79. HOW PROVED. 
 
 67. DANGERS OF F.XPLANATORY EVIDENCE. 80. PROOF OF. 
 
 Usages of Trade in Commercial Contracts. 
 
 Sec. 56. We come now to the consideration of the ques- 
 tion as to the admissibility of evidence of a usage of trade 
 for the purpose of importing terms into commercial con- 
 tracts. That this is a question of paramount importance 
 in an industrial age and a commercial country cannot be 
 doubted ; but even if there was any hesitation, a considera- 
 tion of the number of the cases, involving this question, 
 which have come before our courts, and of the deepness and 
 importance of the interests of the litigants in those cases, 
 would prove the assertion. The same preliminary remark 
 which was made in reference to contracts affecting the rela- 
 tion of landlord and tenant as to the general rule as to the 
 ambiguity in contracts would be in place here. That the 
 doctrine of the law as to the admissibility of parol evidence, 
 to explain away or clear up an ambiguity in a mercantile 
 
ADMISSIBILITY AS EVIDENCE. 
 
 79 
 
 contract, is the same as that which applies to an ambiguity 
 in contracts not made in the way of trade will be evident 
 from the consideration of one or two cases, (a) That is, that 
 such evidence is not admissible to explain a contract that is 
 clear in all its terms and provisions, as to permit such evi- 
 dence would change the legal relations of the parties and 
 defeat their intention. (5) 
 
 (a) Kempson v. Boyle, 3 H. & 0. 
 673 ; Bold v. Rayner, 1 jM. & W, 343 ; 
 but see as to inadmissibility, Smith 
 V. Jeffreys, 15 M. & W. 562 ; 15 L. J. 
 Exch. 325 ; Ford v. Yates, 2 Scott, N. 
 E. 654 ; 2 M. & G. 549 ; see Taylor on 
 Ev. (5th ed.) ? 1053, p. 996 ; Weston 
 V. Ernes, 1 Taunt. 115 ; Kaines v. 
 Knightly, Sk&n. 54.; Hoare v. Graham, 
 S Camp. 57 ; Field v. Lelean, 6 H. & 
 N. 627; 30 L. J. Exch. 170; Rawson 
 V. Walker, 1 Stark. 361 ; Adams v. 
 Wordley, 1 M. & W. 374. 
 
 (6) Evidence of usage is not ad- 
 missible to change tlie legal relation 
 of parties to a transaction. Tlius, 
 such evidence is not admissible to 
 show that a commission dealer re- 
 ceiving propertj' for sale on commis- 
 sion is liable as a purchaser rather 
 than in a fiduciary capacity. Thus, 
 in Duguid v. Edwards, 50 Barb. (N. 
 Y.) 288, the plaintiff brought an 
 action against the defendant for the 
 value of certain fiour (.onsigned to 
 the defendant for sale. The plaintiff 
 obtained an order of arrest on the 
 ground that the money was obtained 
 in a fiduciary capacity. The defend- 
 ant, to get rid of the order, showed 
 by affidavit that it was a custom 
 among persons selling flour on com- 
 mission to charge the owner in ac- 
 count with freights, commissions, 
 &c., and to credit him with the 
 avails of the sale, thus making such 
 excess over the charges and expenses 
 
 a mere simple debt, and not money 
 received or held in a fiduciary capa- 
 city. The court held that the evi- 
 dence was not admissible, upon the 
 point that evidence of usage or cus- 
 tom is not admissible to deprive a 
 party of his rights otherwise secured 
 to him by law. Woodruff v. 3Ier- 
 ohants' Bank, 25 Wend. (N. Y.) 674; 
 Frith v. Baker, 2 John. (N. Y.) 327; 
 Bowen v. Newell, 18 Barb. (N. Y.) 391. 
 In Lavjrence v. Maxwell, 6 Lans. (N. 
 Y. S. C.) 469. this rule was also well 
 illustrated. In that case the plain- 
 tiff deposited with the defendant, a 
 broker in New York City, four hun- 
 dred shares of the stock of the 
 Atlantic Steamship Company as se- 
 curity against loss b^^ him for con- 
 ductingforhim (theplaintiff ) certain 
 transactions in the purchase and sale 
 of gold coin to the close of the trans- 
 actions, the defendant rendered an 
 account thereof to the plaintiff by 
 which it appeared that there was a 
 balance of $11,600.22 due the defend- 
 ant. This sum the plaintiff tendered 
 to the defendant, and demanded a 
 return of tlie stock deposited with 
 him. The defendant had pledged 
 the stock some time before the ac- 
 count was rendered, to raise money 
 for his own use, and consequently 
 could not return it. The action was 
 brought for damages for the conver- 
 sion of the stock. The defendant 
 offered to show in defence as ex- 
 
80 
 
 THE USAGES OF TRADE AND THEIR 
 
 General Rules as to Oral Evidence. 
 
 Sec. 57. There are certain general principles which gov- 
 ern the interpretation of all writings which are dealt with at 
 length in all works on the law of evidence. Some of these 
 rules are obvious in their reasons, and necessary in their 
 application. Thus, that the court must read the whole of 
 a document, and must come to a conclusion as to the mean- 
 ing of the words used by a careful examination of the con- 
 text, and the estimate of the sense and weight of the same 
 words in other parts of the instrument, (c) Words must be 
 understood, if they can, in their primary sense. (cZ) Then 
 
 casing the conversion an alleged 
 custom or usage in the city of New 
 York, authorizing brokers to sell or 
 otherwise dispose of the securities 
 pledged, as was done in this case, 
 and as the broker might deem 
 proper. The trial court rejected the 
 evidence, and this ruling was sus- 
 tained upon appeal, Leonard, J., in 
 delivering the opinion of the court 
 vipon this point, saying, "He," (the 
 defendant) '' offered evidence at the 
 trial to prove that it was customary 
 among brokers in New York to use 
 the stock held by them as security, 
 in the manner this stock was held 
 by the defendant, and, upon objec- 
 tion, this evidence was excluded ; 
 also that the defendant had pre- 
 'viously held stock of the plaintiff as 
 security, whic?i he had used in a 
 similar manner without objection or 
 complaint on the part of the plain- 
 tiflf, although he knew of it. This 
 also was excluded. The evidence 
 offered was clearly inadmissible. 
 Such a custom is simply a violation 
 of the rights of the principal. A 
 long continued course of wrong- 
 doing or violation of law, will never 
 establish a valid custom to continue 
 it. (See upon this point, and to the 
 same effect, Coleman v. McMurdo, 5 
 
 Rand. (Va.) 51; Harris v. Carson, 7 
 Leigh (Va.) 632; Winder v. Blake, 4 
 Jones (N. C.) L. 332). Brokers who 
 use the stock of their principals- 
 relying upon any such custom, are 
 liable to return it when called upon,, 
 if their demands or liabilities in- 
 curred on the security of the stock 
 have been satisfied. If thej'' cannot, 
 return it, they are liable in damages- 
 for the injur}' which is caused by a 
 loss of the stock. It is a clear viola- 
 tion of trust, and an action as for a 
 conversion of the stock, is clearly - 
 within the election of the principal.. 
 * * * It is no excuse or defence, 
 that the broker has taken advantage 
 of the possession of his principal's- 
 stock, and used it without complaint 
 on his part on previous occasions. 
 On those occasions he returned or 
 accounted for the stock so used, and' 
 no cause of complaint remained." 
 
 (c) Blimdell v. Gladstone, 11 Sim. 
 486; 1 Phill. 279, 383, 389, s. c; Bate- 
 man V. Lord Roden, 8 Jones & Lat. 
 356; Richardson v. Watson, 4 B. & A. 
 798, 799, per Parke, J. ; Lang v. Gale,. 
 1 M. & S. 11 ; Walsh v. Trevanion, 15. i 
 Q. B. 733, 751. 
 
 (rf) Robertson v. French. 4 East 135-, 
 136, per Lord Ellenborough ; Mallan 
 V. May, 13 M. & W. 517, per Pollock, 
 
ADMISSIBILITY AS EVIDENCE. 
 
 81 
 
 comes the general rule to which we have adverted, (e) viz., 
 that parQl evidence cannot be received to contradict, vary, 
 add to, or subtract from the terms of a valid written instru- 
 ment. (/) However general a usage may be, it cannot be 
 
 C. B. ; Carr v. Montefiore, 5 E. & S. 
 408 ; Ford v. Ford, 6 Hare 490, 491, 
 per Wigram, V. C. ; Hicks v. Sallitt, 
 23 L. J. Ch. 571 ; see also Bell's Com. 
 Law of Scotland (7tli ed.) vol. 1, p. 
 456. 
 
 (e) Ante, p. 40. 
 
 (/ ) Goss V. Lord Nugent, 5 B. & Ad. 
 64 ; see 2 Ph. on Evid. 350. So by 
 the Scotch law, "a writing cannot 
 be cut down or taken away by the 
 testimony of witnesses." — Tait, Ev. 
 826, 327. The legislature has also 
 adopted a similar rule, making it 
 obligatory to use writing in evidence 
 of certain dispositions, such as wills 
 and other transactions, and those 
 within the Statute of Frauds. See 
 Faivkes v. Lamb, 31 L. J. Q. B. 98 ; 
 see also The Reeside, 2 Sum. (U. S.) 
 567 ; Chubb v. Seven thousand eight 
 hundred bushels of oats, 16 Law Kep. 
 -X. S. 492. Parol evidence of a cus- 
 tom cannot be received to show that 
 a marine policy of insurance on 
 goods shipped from New Orleans to 
 Mobile, the language of which is 
 plain and unambiguous, covers the 
 overland transportation of the goods 
 by railroad. Smith v. Mobile Naviga- 
 tion &c. Co., 30 Ala. 167. Nor in an 
 action against the owners of a steam- 
 boat, as common carriers, for failing 
 to deliver goods at the place speci- 
 fied in their bill of lading, is evidence 
 of a custom among the steamboat 
 men to ascend the river as high as 
 the stage of the water in it permit- 
 ted, and then to land their cargo 
 and deposit the goods in warehouses, 
 admissible for the defendants, be- 
 
 cause the effect of the custom is to 
 contradict the terms of the contract 
 and relieve a party from a liability 
 that he has expressly assumed. Cox 
 v. Peterson, 80 Ala. 608. But evi- 
 dence is admissible to show that, by 
 a custom existing on a particular 
 river, flatboatmen are not responsi- 
 ble for a loss caused by dangers of 
 the river, although the bill of lading 
 contained no such exception, but in 
 order to be operative, the custom, to 
 be valid and binding, must be uni- 
 form, and so generally known and 
 acquiesced in, and so well estab- 
 lished, that the parties must be pre- 
 sumed to have contracted in refer- 
 ence to it. Steele v. McTyer, 81 Ala. 
 667. It is also held that the owner 
 of a steamboat, when sued for the 
 loss of goods by fire, may show by 
 parol that the exceptive words 
 "dangers of th'e river," in the bill of 
 lading, by custom and usage include 
 dangers by fire. McClure v. Cox, 32 
 Ala. 617; Hihler v. McCartney, 31 
 Ala. 501. But evidence is not admis- 
 sible to vary the common bill of 
 lading, by which goods are to be 
 delivered in good order, &c., the 
 danger of the seas only excepted, 
 and to show a custom that the own- 
 ers of packet vessels between New 
 York and Boston are liable only for 
 damage to goods caused by their 
 own neglect, because such a usage 
 is unreasonable and relieves the car- 
 rier from liabilities that he has ex- 
 pressly assumed. The Reeside, 2 
 Sum. (U. S.) 568. But evidence of 
 usage, fixing a construction of the 
 
82 
 
 THE USAGES OF TEADE AND THEIR 
 
 given in evidence to alter or vary the express terms of a 
 contract. As parties may exclude the rules of the^ general 
 
 words "inevitable dangers of the 
 river," in a bill of lading for trans- 
 portation of goods by inland naviga- 
 tion, is admissible, because the effect 
 of the usage is only to explain the 
 meaning of the terms employed by 
 the parties, and to arrive at and give 
 effect to their intention. Gordon v. 
 Little, 8 S. & E. ( Penn. ) 533. Evidence 
 of a custom of merchants, in Connec- 
 ticut, that the freight of money, re- 
 ceived on board a ship by the master, 
 is his perquisite, and that he, and 
 not the ship-owner, is liable on the 
 contract, was held admissible in a 
 suit against such owner for money 
 taken on freight by the master at a 
 West India island. Halsey v. Brown, 
 3 Day. (Conn.) 346. The express 
 terms of a contract cannot be varied 
 by usage, because the parties are 
 presumed to have intended precisely 
 what they say, and this presump- 
 tion is irrebuttable, consequently, 
 except in cases where fraud is shown, 
 or accident or mistake, which a 
 court of equity will rectify, they 
 cannot be relieved from their liabil- 
 ity as plainly expressed in the con- 
 tract. Sweet V. Jenkins, 1 E. I. 147 ; 
 Meaghar v. Lufkin, 21 Tex. 883 ; Cald- 
 well V. Meek, 17 111. 220; Cooper v. 
 Purvis, 1 Jones (N. C.) L. 141 ; Ren- 
 ner v. Bank of Columbia, 9 Wheat. 
 (U. S.) 981 ; Bradley v. Wheeler, 44 N. 
 Y. 495 ; Collender v. Dinsmore, 55 Id. 
 200; Groat v. Gile, 51 Id. 431; Sim- 
 mons V. Law, 4 Abb. Dec. (N. Y.) 
 241; Mercantile &o. Ins. Co. v. State 
 Ins. Co. 25 Barb. (N. Y.) 319; St. 
 Nicholas Ins. Co. v. Mercantile Ins. 
 Co., 5 Bas. (N. Y.) 238; Farmers' &c. 
 Bank v. Logan, 74 N. Y. 568 ; Bank 
 of Commerce v, Bissell, 72 Id. 615 ; 
 
 Lawrence v. Gallagher, 10 J. & S. (N. 
 Y.) 309 ; Wadworth v. Alooit, 6 N. Y. 
 64; Sleight v. Rhinelander, 1 John. 
 (N. Y.) 192 ; George v. BaHlett, 22 N. 
 H. 496; Barlow v. Lambert, 28 Ala. 
 704 ; Wheeler v. Nourse, 20 N. H. 220 ; 
 Corwin v. Patch, 4 Cal. 204 ; Fay v. 
 Strawn, 32 111. 295 ; Sanford v. Rawl- 
 ings, 43 Id. 92 ; Atkinson v. Allen, 29 
 Ind. 375 : Randall v. Ratch, 12 Pick. 
 (Mass.) 107 ; Macomber v. Parker, 13 
 Id. 175. This rule was well illus- 
 trated in a case where the contract 
 was for the delivery of " Rochester 
 Mills Flour," and the defendant 
 offered to deliver other flour of 
 equal quality, but refused to deliver 
 Rochester mill. In an action upon 
 the contract, the defendants offered 
 evidence that, by the usage of the 
 trade, contracts to deliver flour of a 
 specified brand, may be filled by 
 other flour of equal quality. The 
 court held that the evidence was 
 inadmissible, because such a usage 
 would excuse a party from doing 
 what he had agreed to do, and, 
 instead of carrying out the intention 
 of the parties, would thwart it. Beats 
 V. Tei-ry, 2 Sandf. (N. Y.) 124. In an 
 Alabama case it was sought to ex- 
 tend a marine policy of insurance 
 on goods shipped from New Orleans 
 to Mobile, so as to cover their 
 transportation over land by railroad. 
 The court held that evidence of a 
 custom to that end was inadmissible, 
 as the contract was express and 
 plain, and purported only to cover 
 a marine loss. Smith v. Mobile Navi- 
 gation &c. Co., 30 Ala. 167. So, in an 
 action by the vendee for damages 
 for the non-delivery of goods under 
 a contract, which provided that the 
 
ADMISSIBILITY AS EVIDENCE. 
 
 83 
 
 law by contract, so, too, may they exclude either a custom 
 or usage, and where the contract is express in its terms, it is 
 treated as embracing the will of the parties and nothing can 
 be shown to change it.-^ But such evidence is admissible 
 
 vendee should advance the freight, 
 it was held that evidence of a gen- 
 eral custom on the subject of paying 
 freight on delivery of the goods, was 
 not admissible, because the parties 
 had made their own contract which 
 was susceptible of easy explanation 
 and needed no aid from custom and 
 could not be controlled by it. Hartje 
 V. CoUim, 46 Penn. St. 268. In a 
 New Hampshire case, where, by the 
 express terms of a policy, a mutual 
 fire insurance company agreed to 
 pay the ascertained amount 0|f loss 
 " without any deduction therefrom," 
 it was held that the company could 
 not set up a custom or usage, on 
 their part, in the case of a total loss, 
 to deduct out of the amount of 
 the ascertained loss two per cent, a 
 month on the balance of the pre- 
 mium note, from the date of the 
 last assessment until the expiration 
 of the policy, because the effect of 
 
 1 Meaghar v. Lufkin, 21 Tex. 383 ; 
 Cadwell v. Meek, 17 111. 220 ; Renner 
 V. Bank of Columbia, 9 Wheat. (U. S.^ 
 582; Sweet v. Jenkins, 1 R. I. 147; 
 Rankin v. American Ins. Co., 1 Hall 
 (N. Y.) 619 ; Cooper v. Purvis, 1 Jones 
 (N. C.) L. 141; Sanford v. RawUngs, 
 43 111. 92; Wads-worth v. Allcott. 6 
 N. Y. 64 ; Barlow v. Lambert, 28 Ala. 
 704; George v. Bartlett, 22 N. H. 
 496 ; Atkinson v. Allen, 29 Ind. 375 ; 
 WheeUr v. Nourse, 20 N. H. 220; 
 Sleght V. Rhinelander, 1 John. (N. Y.) 
 192; Macomber v. Parker, 13 Pick. 
 (Mass.) 175; Fay v. Strawn, 32 111. 
 295 ; Corwin v. Patch, 4 Cal. 204 ; Sigs- 
 -worth V. Mclntyre, 18 111. 126. This 
 
 such a usage would be to vary the 
 plain and unequivocal terms of an 
 express contract. Swamseott Machine 
 Co. V. Partridge, 25 N. H. 369. See 
 also Hall v. Janson, 4 El. & Bl. 500, 
 where a policy contained a stipula- 
 tion that freight was warranted free 
 from average under five per cent. 
 unless general. The interest assured 
 was described as money advanced 
 on account of freight of a cargo 
 loaded on board and subject to the 
 risk of the voyage. The insurer set 
 up a custom of London, that insur- 
 ers, on account of money advanced 
 on freight, are not liable to make 
 good a general average, but the court 
 held that the custom was inadmissi- 
 ble, because it was inconsistent with 
 the express ■ terms of the policy, 
 which expressly stipulated that the 
 insurer should be liable to make 
 good such a loss. 
 
 was well illustrated in a New York 
 case, Simmons v. Law, 3 Keyes (N. 
 Y.) 219. In that case, the plaintiff 
 shipped a quantity of gold dust by 
 the defendant's boats, from San 
 Francisco to New York, which was 
 never delivered. In an action for 
 the loss, the defendant attempted to 
 exempt himself from liability by 
 proof of a usage of carriers inconsis- 
 tent with the bill of lading, but 
 which was well known by the ship- 
 per; but the evidence was rejected, 
 the court saying, "A clear, certain 
 and distinct contract is not subject 
 to modification bj' proof of usage. 
 Such a contract disposes of all cus- 
 
84 
 
 THE rSAGES OF TRADE AND THEIR 
 
 to add incidents to the contract not inconsistent witli its 
 terms.^ Bo, also, to show in what manner the business was 
 done.^ So, too, it is held that evidence of a usage is not 
 admissible to contradict the legal import of a contract,* or to 
 
 toms by its own terms, and by its 
 terms alone is the conduct of the 
 parties to be regulated and their lia- 
 bility determined." See also Collen- 
 der V. Dinsmore, 55 N. Y. 200 ; Brad- 
 ley V. Whtekr, 44 Id. 495 ; Groat v. 
 Cfile, 51 Id. 431 ; Astor v. Union &c. 
 Ins. Co., 7 Cow. (N. Y.) 202; Hone v. 
 Mutual &o. Ins. Co., 2 N. Y. 235; 
 Stebbins v. Globe Ins. Co., 2 Hall (N. 
 Y.) 632; Stebbins v. Brown, 65 Barb. 
 (N. Y.) 274 ; Main v. Eagle, 1 E. D. 
 S. (N. Y. C. P.) 619; Beats v. Terry, 
 2 Sandf. (N. Y.) 127. The rule is 
 inflexible that no custom or usage, 
 however general, can be admitted to 
 vary or control the express terms of a 
 contract, as the efiect of such evi- 
 dence would be to defeat the very 
 purpose for which such evidence is 
 6ver received, to wit, to ascertain 
 the real intention of the parties. 
 The contract, when clearly ex- 
 pressed, must be treated as embody- 
 ing the intention of the parties, and 
 if it conflicts with known customs or 
 usages, it affords irrebuttable evi- 
 dence that the parties intended to 
 exclude them. Cadwell v. Meek, 17 111. 
 220; Renner v. Ba7ik of Columbia, 9 
 Wheat. 581 ; Rankin v. American Ins. 
 Co., 1 Hall (N.Y.) 619 ; Sleght v. Rhine- 
 lander, 1 Johns. (N. Y.) 192 ; Barlutu 
 V. Lambert, 28 Ala. 704; Corwin v. 
 Patch, 4: Cal. 204; Sigsworth v. Mcln- 
 tyre, 18 111. 126 ; Fay v. Strawn, 32 111. 
 295; Sanford v. Raiolings, 43 111. 92; 
 Atkinson v. Allen, 29 Ind. 375; Ran- 
 dall V. Rotch, 12 Pick. (Mass.) 107; 
 Macomber v. Parker, 13 Id. 175; 
 Wheeler v. Nourse, 20 N. H. 220; 
 
 George v. Bartlett, 22 N. H. (2 Post.) 
 496 ; Wadsworth v. Allcott, 6 N. Y. (2 
 Seld.) 64; Cooper v. Purvis, 1 Jones 
 (N. C.) L. 141 ; Sweet v. Jenkins, 1 R. 
 I. 147; Meaher v. Lufkin, 21 Tex. 
 383. 
 
 2 Lace's case, 4 C. H. Eec. (IST. Y.) 
 158; Wood v. Wilcox, 9 Wend. (N. Y.) 
 346; Bixon v. Dunham, 13 111. 324; 
 Cooper V. Kane, 19 Wend. (N. Y.) 
 386 ; Leach v. Beardslee, 22 Conn. 
 404; Shaw v. Mitchell, 2 Met. (Mass.) 
 65; Alabama &c. R. R. Co. v. Kidd, 
 29 Ala. 221 ; Hursh v. North, 40 Penn. 
 St. 241; Stultz V. Dickey, 5 Binn. 
 (Penn.) 287 ; Inglebright v. Ham- 
 mond, 19 Ohio 337 ; Sampson v. Gaz- 
 zam, 6 Port. (Ala.) 123; Barber v. 
 Brace, 3 Conn. 9 ; Haven v. Weniworth, 
 
 2 N. H. 98. 
 
 "Fox v. Parfcer, 44 Barb. (N. Y.) 
 541 ; and to give eff'eot thereto, Man- 
 gum v. Farrington, 1 Daly (N. Y. C. 
 P.) 236; Cooper v. Kane, ante; Da?- 
 tora V. Daniels, 2 Hilt. (N. Y. C. P.) 
 472; Hinton v. iocyfce, 5 Hill (N. Y.) 
 437 ; Bissell v. Campbell, 54 N. Y. 353 ; 
 iee V. Salter, Lalor's Supp. (N. Y.) 
 163; Hartshorne v. Union Ins. Co., 
 36 N. Y. 172. 
 
 * Holmes v. Pettingill, 60 N. Y. 
 646; Dalton v. Daniels, ante; JL/tere 
 V. Dj/jfcers, 7 Hill (N. Y.) 497 ; Taylor 
 V. Ketchum, 5 Bobt. (N. Y.) 507; 
 TaiZ V. Rice, 5 N. Y. 155; Harvey v. 
 Carfi/' 3 Mich. 431; Smith v. Wilson, 
 
 3 B. & Ad: 371 ; Dodd v. Jar?oi(;, 11 
 Allen (Mass.) 426; Clark v. Roystone, 
 13 M. & W. 756 ; Cabot v. TF/tisoc, 1 
 Allen (Mass.) 546; Huckin v. Cooke, 
 
 4 T. R. 314; Truetnan v. Lorfe;-, 11 
 
ADMISSIBILITY AS EVIDENCE. 
 
 85 
 
 contradict a settled rule of law, although it may be used for 
 the purpose of explaining it. 
 
 Collateral Agreements. 
 
 Sec. 58. But this rule does not prevent the parties to the 
 written contract from proving that either contemporaneously 
 or as a preliminary measure they had entered into a distinct 
 oral agreement on some collateral matter. ( ,9') And, of 
 course, parol evidence is admissible under the proper plea 
 to show that the instrument is altogether void, or never had 
 any legal existence either by reason of forgery or fraud, (A) 
 
 Ad. & El. 589 ; Sanford v. Raiolings, 
 43 111. 92 ; Nobk v. Burrell, 3 T. R. 
 371; Osgood v. McConnell, 32 111. 74; 
 Mangum v. Ball, 43 Miss. 288 ; Sim- 
 mons V. Law, ante; Luce v. Dorches- 
 ter Ins. Co., 105 Mass. 297 ; Muncey 
 V. Dennis, 1 H. & N. 216 ; Satilichos 
 V. Kemp, 3 Exchq. 105 ; Davis v. Gal- 
 loupe, 111 Mass. 121 ; Marc v. Kupfer, 
 34 111. 287 ; Buckle v. Knoop, 36 L. J. 
 Exchq. 49 ; Merchants Bank v. Staie 
 Bank, 10 Wall (U. S.) 604; Willmer- 
 ing V. McGaughey, 30 Iowa 205 ; Saw- 
 telle V. Drew, 122 Mass. 228 ; Ins. Co. 
 y. Wright, 1 Wall. (U. S.) 456; Bank 
 of Commerce v. Bissell, 72 N. Y. 615 
 Jackson v. Belling, 22 La. An. 377 
 Spears v. Ward, 48 Ind. 546 ; Glendale 
 Mf'g Co. V. Ins. Co., 21 Conn. 19 
 Schenck v. Grijjin, 38 N". J. L. 462 
 Lombardo v. Case, 45 Barb. (N. Y.) 45 
 Raffert v. Seraggins, 40 Ind. 195 : 
 Sugart v. Mays, 54 Ga. 554; Coxe v, 
 Heisley, 19 Penn. St. 243 ; Markham 
 V. Jaudon, 41 N. Y. 235; Security 
 Bank v. National Bank, 67 Id. 458 ; 
 Farmers &c. Bank v. Sprague, 52 Jd. 
 
 (£r) Lindley v. iac«?/, 17 C. B. N. 
 S. 558; see also Brady v. Oastler, 3 
 H. & C. 112; Malpas v. London & 
 South Western Rail. Co., 35 L. J. C. P. 
 166 1 L. R. C. P. 336. 
 
 605 ; Warner v. Footman, 54 Ga. 128 ; 
 Bowen v. Newell, 8 N. Y. 190 ; Out- 
 water V. JVe&ow, 20 Barb. (N. Y.) 29; 
 Frith V. Barker, 2 John. (N. Y.) 327 ; 
 ilfarA:s V. Cass Co. Mill, 43 Iowa 146 ; 
 S%i,se V. Pompe, C. B. N. S. 538; 
 Spears v. Tfard, 48 Ind. 546, Yeates 
 V. Pym., 6 Taunt. 466; Doe v. Lee, 11 
 East. 312; Wetherell v. Neilson, 20 
 Penn. St. 444 ; jFHi/i v. Barker, ante ; 
 Markham v. Jaudon, ante ; Schiefflin 
 V. Harvey, 6 John. (N. Y.) 170; /ones 
 V. Bradner, 10 Barb. (N. Y.) 193. In 
 commenting upon the impolicy of 
 extending the offices 'Of the usages 
 of trade in interpreting contracts, 
 Lord Denman, in Truenian v. Loder, 
 ante, says: "There is no inconve- 
 nience in requiring parties to write 
 the whole of their contract; while, 
 in mercantile affairs, no mischief 
 can be greater than the uncertainty 
 produced by permitting verbal state- 
 ments to vary bargains committed 
 to writing." See also remarks of 
 Story, J, in The Schooner Reeside, 2 
 Sum. (U. S.) 567. 
 
 {hj Collins V. Blantern, 2 Wils. 341 ; 
 1 Smith's L. C. 310-339, and cases 
 there cited in the notes. Walker v. 
 Smith, 2 Vt. 539 ; Rhodes v. Riseley, 
 1 N. Chip. (Vt.) 52; Branch Bank v. 
 
86 
 
 THE USAGES OF TRADE AND THEIR 
 
 or that the contract was made in furtherance of objects for- 
 bidden by law,{i) or was obtained by duress, (y) or made by 
 persons incapable of contracting, (^) or that it is not binding 
 through failure of the consideration. (Z) 
 
 Subsequent Oral Agreement— Rule in Gobs v. Lord Nugent. 
 
 Sec. 69. Any obligation by writing, not under seal, may, 
 in the absence of statutory interference, be either totally or 
 partially dissolved before breach, by a subsequent oral agree- 
 
 Gaffney, 9 Ala. 152 ; Condit v. Brown, 
 21 Tex. 421 ; Taylor v. Moore, 23 Ark. 
 408; Copeland v. Gorman, 19 Tex. 
 253; Corbin v. Flack. 19 Ind. 459; 
 New York &c. Bank v. Gibson, 5 Duer 
 (N. Y.) 574; Ti-ustees v. Hill, 12 la. 
 462; Smalley v. Hale, 32 Mo. 102; 
 Larrabee v. Fairbanks, 24 Me. 363; 
 Theurer v. Schmidt, 10 La. An. 293 ; 
 Thomas v. Kennedy, 24 La. An. 209; 
 Kain v. Old, 2 Br. C. 634 ; Turner v. 
 Turner, 44 Mo. 535 ; Sparks v. Haw- 
 son, 47 Tex. 138 ; Battles v. Laudens- 
 langer, 84 Penn. St. 446; Walker v. 
 Carrington, 84 111. 146; Lull v. Cass, 
 43N. H.62; Montgomery Y.Pickering, 
 116 Mass. 227; Koop v. Handy, 41 
 Barb. (N. Y.) 454; McLean v. Clark, 
 47 Ga. 24 ; Meyer v. Huncke, 55 N. Y. 
 412; Cobb v. Hatfield, 46 N. Y. 533; 
 Wray v. Wray, 32 Ind. 126 ; Kinney 
 V Kieynan, 49 N. Y. 164 ; Wharton v. 
 Douglass, 76 Penn. St. 273 ; Munte v. 
 Gross, 56 Penn. St. 150. 
 
 (i) Collins V. Blantem, 2 Wils. 347; 
 1 Smith's L. C. 310-326; Benyon v. 
 Nettle/old, 3 M. & Gord. 94; see also 
 Briggs v. Lawrence, 3 T. R. 454; 
 Waymell v. Reed, 5 T. R. 600; Nor- 
 man V. Cofe, 3 Esp. 253; and see 
 Martin v. Clarke, 8 R. J. 389; Fer- 
 guson V. Sutphin, 8 111. 547; Tbtten. v. 
 United States, 92 U. S. 105 ; Newsom 
 V. Thighen, 80 Miss. 414; Shackfer v. 
 Newington, 46 N. H. 415 ; Lazarre v. 
 Jacques, 15 La. An. 598; Wyman v. 
 
 FisAe, 3 Allen (Mass.) 238; Bowman 
 V. rorr, 3 la. 571 ; Corbin v. Sistrunk, 
 19 Ala. 203; Pratt v. Langdon, 97 
 Mass. 97 ; Parked' v. Broas, 20 La. An. 
 167; McGuigin v. Ochiglevich, 18 La. 
 An. 92 ; Bigelow v. IFbodard, 15 Gray 
 (Mass.) 560; i\^efeora v. J?atore, 26 K 
 Y. 410 ; Craig v. &'66eH, 15 Penn. St. 
 288. 
 
 U) 2 Inst. 482, 483 ; Olivanv.Men- 
 ger, 39 Tex. 76; Collins v. Blantem, 
 2 Wils. 341 ; Cook v. Jlfoore, 39 Tex. 
 255; Feller v. GJreew, 26 Mich. 70; 
 Hibbard v. Mills, 46 Vt. 243 ; Bosley 
 V. Shanner, 26 Ark. 280; Seiber v. 
 Price, 26 Mich. 518 ; Spaid v. Barrett, 
 S7 111. 289 ; Davis v. Jbx, 59 Mo. 125 ; 
 Davis V. Luster, 64 Mo. 43 ; iftZfec v. 
 Miller, 68 Penn. St. 486; Knapp v. 
 JTj/de, 60 Barb. (N. Y.) 80; Jlfoore v. 
 Rxish, 30 La. An. 157 ; Bane v. Dei- 
 rick, 52 111. 19. 
 
 (i:) B. K. P. 172 ; Barrett v. Buxton, 
 2 Atk. 167. 
 
 [I) Foster v. J"o%, 1 C. M. & R. 707; 
 Solby V. ffi?irfe, 2 C. & 51. 516 ; see 
 Leppoe V. National Union Bank, 32 
 Md. 136 ; Litchfield v. Falconer, 2 Ala. 
 280; Ort/i V. Sharkey, 4 Ind. 642; 
 Jackson v. Jackson, 7 Ala. 791 ; iS/y/.s- 
 worWi V. Coulter, 18 111. 204; Stacj/ v. 
 Kemp, 97 Mass. 166; Marshall v. 
 Marshall, 12 B. Mon. (Ky.) 459; Cari- 
 wright v. Clayton, 25 Ga. 85 ; TT'i'.sc v. 
 iVea/, 39 ]\Ie. 422. 
 
ADMISSIBILITY AS EVIDENCE. 87 
 
 ment. (m) Although it has been argued that there is nothing 
 contradictory in the rule that allows a written contract to be 
 totally waived or discharged by parol proof, and that which 
 forbids the reception of parol evidence, with the view of con- 
 tradicting, varying, adding to, or subtracting from, such an 
 instrument, we confess that it seems to us that the partial 
 dissolution of a written contract seems to be the same thing 
 as subtracting from it, and that the words of Lord Denman, 
 in Goss V. Lord Nugent,{m) are contradictory, to a great 
 extent, of the primary rule with regard to parol evidence. 
 These words are : "After an agreement (at common law) 
 has been reduced to writing, it is competent to the parties, 
 at any time before breach of it, by a new contract not in 
 writing, either altogether to waive, dissolve or annul the 
 former agrement, or in any manner to add to, to subtract 
 from, or vary, or qualify the terms of it, and thus to make a 
 new contract, which is to be proved, partly by the writ- 
 ten agreement, and partly by the subsequent verbal terms 
 engrafted upon what will be thus left of the written agree- 
 ment." We confess that we are unable to reconcile these 
 
 (?«.) Goss V. Lord Nugent. 5 B. & 510; Hartford Ins. Co. v. Wilcox, 57 
 
 Ad. 65, per Lord Denman. The rule 111. 186 ; Courtinay v. Fuller, 65 Me. 
 
 is well established that the parties to 156; Dixon v. Cook, 47 Miss. 220; 
 
 a contract may modify or extend it Tusting v. Sullivan, 41 Md. 170 ; Qil- 
 
 by parol, so as to apply it to new and bert v. Duncan, 29 N. J. L. 133 ; Ray- 
 
 kindred objects, or so as to embrace mond v. Sellick, 10 Conn. 480; Snuith 
 
 new parties, extend the time of per- v. Richards, 29 Id. 232. Indeed, it 
 
 formance, or so as to engraft new may be said to be well settled that 
 
 powers, duties or liabilities upon it, parol evidence is admissible to prove 
 
 and such collateral agreement can any collateral independentfaot about 
 
 be proved by parol. Thomas v. Ham- which the agreement is silent. Bladen 
 
 mond, 47 Tex. 43 ; Bonney v. Morrill, v.Wells, 30 Md. 582; Malone Y.Dough- 
 
 57 Me. 868 ; White v. Parkin, 12 East erty, 79 Penn. St. 46 ; Lindley v. Laeey, 
 
 578 ; Kelly v. Taylor, 23 Cal. 11 ; Rob- L. R., 1 C. P. 336 ; Tusting v. Sullivan, 
 
 inson v. Batchelder, 4 N. H. 40; Polk 41 Md. 169; Phillips v. Preston, 5 B.ow- 
 
 v. Anderson, 16 Kan. 243; Morgans. (U. S.) 278; Forster v. McCh-aw, 64 
 
 Griffith, L. E. C. Exchq. 70; Ingersoll Penn. St. 464; Fullerton v. Rtmdlett, 
 
 V. Truebody, 40 Cal. 603; Buzzell v. 27 Me. 31 ; Cummings v. Putnam, 19 
 
 Willard, 44 Vt. 44; Fields v.Munn, N. H.569; JHfoore v. Damteora, 18 Ala. 
 
 42 Id. 61 ; Weaver v. Fletcher, 27 Ark. 209. 
 
88 
 
 THE USUGES OF TRADE AND THEIE 
 
 two doctrines, and that, having in remembrance what Lord 
 Coke calls " the uncertain testimony of slippery memory," (to) 
 we would have felt more inclined to adopt the rule of the 
 law of Scotland, by which no written obligation whatever 
 can be extinguished or renounced without either the credi- 
 tor's oath or a writing signed by him.(o) And we regard 
 the prevailing rule as to the invalidity of the oral dissolution 
 of a statutory instrument as an argument in favor of our 
 proposition. (^) 
 
 Collateral Agreements. 
 
 Sec. 60. Of course, the rule is not infringed by proof 
 of any collateral parol agreement, which does not inter- 
 fere with the terms of the written contract, although it 
 may relate to the subject-matter ;(§') and it must be remem- 
 
 (to) 5 Rep. 26a. 
 
 (o) Taifc on Evidence, 325. In 
 Scotland a written agreement can- 
 not be afterwards waived or varied 
 by mere words, though a subse- 
 quent parol agreement, accompa- 
 nied or followed by part perform- 
 ance, will suffice for that purpose. 
 Bargaddie Coal Co. v. Work, 3 Macq. 
 Sc. Cas. H. of L. 467. 
 
 (p) See Taylor on Ev. § 1045 (5th 
 ed.) ; Marshall v. Lynn, 6 M. & W. 
 116; Emmet v. Dewkirst, 21 L. J. Oh. 
 497 ; Moore v. Campbell, 10 Exch. 323; 
 Stowell V. Robinson, 3 Bing. N. C. 928 ; 
 Stead V. Dawber, 10 A. & E. 57. 
 
 [q) White v. Parkin, 12 East. 578 ; 
 Edwards v. Bates, 7 M. & G. 600, 611, 
 per Creswell, J. ; Foster v. Allanson, 
 2 T. R. 479; Fletcher v. Gillespie, 3 
 Bing. 685. This and the above pro- 
 visions have been introduced into 
 the Indian Evidence Act, 1862 ; see 
 sect. 92; see also The Law of Evi- 
 dence in British India, by C. D. 
 Field (2d ed. 1873), p. 316. The rule 
 is well established that parol evi- 
 
 dence of a subsequent agreement, 
 varying the terms of the written 
 agreement, is admissible. Thus, in 
 one case, Adler v. Friedman, 16 Cal. 
 138, evidence of a parol agreement 
 made subsequent thereto was admit- 
 ted to show that it was agreed that 
 a note which, on its face, bore tivo 
 and one-half per cent, interest 
 should bear but one and a half per 
 cent. So, too, a parol agreement 
 between two endorsers of a note to 
 divide the loss between them, may 
 be shown. Phillips v. Preston, 5 How. 
 (U. S.) 278; Cartwright v. Clayton, 25 
 Ga. 85 ; McDonald v. Stewart, 18 La. 
 An. 90. The general rule may be 
 said to be that parol contemporane- 
 ous evidence is inadmissible to con- 
 tradict or vary the terms of a valid 
 written instrument, but a new agree- 
 ment on a new consideration may 
 be established hy parol, whether it is 
 a substitute for the old one, or only 
 in addition to or beyond it. Shep- 
 herd v. Wysong, 3 W. Va. 46; Heath- 
 erly v. Record, 12 Tex. 49; Flanders 
 
ADMISSIBILITY AS EVIDENCE. 89 
 
 bered that the rule is applicable only to suits between the 
 parties, (r) 
 
 General Principle Illustrated. 
 
 Sec. 61. The policy of the rule will be the better appre- 
 ciated, and its nature and scope more thoroughly understood, 
 from a consideration of some of the cases in which parol 
 evidence has been rejected. In this place, any such inquiry, 
 as it is mainly preliminary, must necessarily be short. 
 Where, therefore, a policy of insurance was effected on 
 goods " in ship or ships from Surinam to London," parol 
 evidence was held inadmissible to show that a particular ship 
 which was lost had been verbally excepted at the time of the 
 contract, (s) And where a policy described the two termini 
 of the voyage, the insurers were not allowed to prove by 
 parol evidence that the risk was not to commence till the 
 vessel reached an intermediate place. (^) So where a ship 
 was particularly described in a written contract of sale, parol 
 evidence of a further descriptive representation made prior 
 to the sale was held inadmissible to charge the vendor, with- 
 out proof, of actual fraud, all previous conversation being 
 merged in the written contract, (tt) 
 
 Eule as to Extrinsic Parol Evidence— Presumption. 
 
 Sec. 62. These and other cases (v) suflBciently illustrate the 
 rule that, although extrinsic parol evidence is inadmissible 
 to vary, add to, or subtract from the contents of a valid 
 
 V. Fay, 46 Vt. 816 ; Marshall v. Baker, Leslie v. Be le Torre, cited 12 East. 
 
 19 Me. 402 ; Perry v. Central &c. R. R. 583. 
 
 Co., 5 Cald. (Tenn.) 138 ; McKinstry [t] Hoare v. Graham, 3 Camp. 57 ; 
 
 V. Runk, 12 N. J. Eq. 60 ; Musselman Spartali v. Beneoke, 10 C. B. 212 ; 
 
 V. Stoner, 31 Penn. St. 265 ; Cmnmings Besant v. Cross, 10 C. B. 895 ; Hanson 
 
 V. Putnam, 19 N. H. 569 ; Huckins v. Stetson, 5 Pick. 506. 
 
 V. Hebhard, 84 N. Y. 24 ; Keough v. (u) Pickering v. Dawson, 4 Taunt. 
 
 McNitt,- 6 Minn. 513; Holmes v. 779; see The Isabella, 2 Rob. Adm. 
 
 Boans',9 Cush. (Mass.) 135. 241; White v. Wilson, 2 B. & P. 116; 
 
 [r) 1 Poth. on Obi. 4, c. 2, art. 3, Rioh v. Jackson, 4 Br. C. C. 514. 
 
 n. 7g6. [v] See Taylor on Evidence (5th 
 
 (s) Kaines v. Knightly, Skin. 54; ed.), ? 1053, 1054, 1055, &c. 
 
90 
 
 THE USAGES OF TRADE AND THEIE 
 
 written instrument, on the sufficient grounds that the parties 
 to the instrument must be presumed to have committed to 
 writing all that was necessary to give full expression to their 
 intentions and meaning, and that incalculable difficulty, con- 
 fusion and mischief would arise if verbal testimony were 
 received in such cases ; still it may in all cases be adduced 
 where there is doubt, with the view of explaining the written 
 instrument, that is, for the purpose of enabling the court to 
 understand the real nature of the contents of the writing 
 before them, by an explication of the terms employed, (w) 
 
 {w) Shore v. Wilson, 9 CI. & F. 355, 
 pe?- Parke, B. ; 566, 567, per Tindal, 
 C. J. ; Kelt V. Charmer, 23 Beav. 195 ; 
 see also Campbell v. Johnson, 44 Mo. 
 247; Perkins v. Young, 82 Mass. 389; 
 Cocke V. Bailey, 42 Miss. 81 ; Ellis v. 
 Crawford, 39 Cal. 523 ; Richards • v. 
 Schlegelmich, 65 N. C. 150. That when 
 a word has acquired a local or tech- 
 nical meaning by usage, it may be 
 shown to ascertain the intention of 
 the parties and the scope and mean- 
 ing of the contract; see Prather v. 
 Ross, 17 Ind. 495 ; Clinen v. Cooke, 
 
 1 Sch. & L. 22; Barnard w Adam, 
 10 How. (U. S.) 270; Sturgis v. Cary, 
 
 2 Curtis (U. S. C. C.) 382; Adams v. 
 Packet Co., 5 C. B. N. S. 493 ; Seymour 
 V. Osborne, 11 Wall. (U. S.) 546; 
 Brown v. Bryne, 3 E. & B. 703. " Evi- 
 dence may be given of a custom or 
 usage," says Allen, J., in Lawrence v. 
 Maxwell, 53 N. Y. 21, " in explana- 
 tion and application of particular 
 words or phrases, and to aid in the 
 interpretation of the contract, but 
 not to derogate from the rights of 
 the parties, or to import into the 
 contract new terms and conditions 
 or to vary the legal effect of the trans- 
 action." Hudson V. Ede, L. E., 3 Q. B. 
 412; Whittemore v. TFej'ss, 33 Mich. 348; 
 Robinson v. United States, 13 Wall. 
 
 (U. S.) 363; Merrick v. McNully, 26 
 Mich. 374; George v. Joy, 19 N. H. 
 544; Myers v. Walker, 24 111. 133; 
 Moran v. Prather, 23 Wall. (U. S.) 
 499; Lamb v. Klauss, 30 Wis. 84; 
 Barnard v. Kellogg, 10 Wall. (TJ. S.) 
 383; Williams v. Woods, 16 Md. 220; 
 Fai-rar v. Stackpole, 6 Me. 154 ; Mo- 
 Masters V. R. R. Co., 69 Penn. St. 874; 
 Brown v. Brooks, 25 Id. 110 ; Carey 
 V. Bright, 58 Id. 70 ; Mieghen v. Bank, 
 25 Id. 288 ; Stone v. Bradbury, 14 Me. 
 85. In New Jersey Zinc Co. v. Boston 
 Franklinite Co. 15 N. J. Eq. 418, where 
 a deed conveyed all the ''zinc ore," 
 evidence was admitted to show what 
 was meant by the word "zinc," and 
 to show that a certain vein, which 
 the defendant claimed as "franklin- 
 ite," passed under the word "zinc."' 
 In Smith v. Clayton, 29 N. J. L. 357, 
 a lease of premises contained a pro- 
 vision that " should the said A. sell 
 the last mentioned lot at any time 
 after the said C. has planted the 
 same, he shall have the privilege of 
 sowing grain on the same." The 
 lessor haying sold the land after C. 
 had planted the land, he sowed oats 
 on the corn ground the succeeding 
 spring, and the question was whether 
 he was not restricted to the sowing 
 of winter grain. The court held that 
 
ADMISSIBILITY AS EVIDENCE. 
 
 91 
 
 Usage in Relation to Ambiguity— The Meaning of Words. 
 
 Sec. 63. Here we find ourselves in a position to consider 
 the laws relating to usage, for it is evident that in consider- 
 
 evidence of the meaning of the word 
 "grain," as used in common par- 
 lance, was not admissible, but that 
 it was the duty of the court to deter- 
 mine its meaning. But that parol evi- 
 dence of the meaning of a word that 
 is ambiguous or made so by the evi- 
 dence, may be shown. See Hart v. 
 Hammett, 18 Vt. 127 ; Patch v. Ins. Co. 
 44 Vt. 481 ; Collender v. Dinsmore, 55 
 N. Y. 204; Collins v. Driscoll, 34 Conn. 
 43; Avery v. Stewart, 2 Conn. 69; 
 Eaton V. Smith, 20 Pick. (Mass.) 150; 
 Walls V. Bailey, 49 N. Y. 464 ; Taylor 
 \. Sotolingo, 6 La. An. 154; Galena 
 Ins. Co. V. Kwpfer, 28 III. 332; Brake 
 V. Gorce, 22 Ala. 409 ; Hooper v. R. R. 
 Co. 27 Wis. 81 ; Soulier v. Kellei~man, 
 18 Mo. 509 ; Johnson v. Ins. Co. 39 
 Wis. 87 ; Fitch v. Carpenter, 43 Barb, 
 (N. Y.) 50; Wait v. Fairbanks, Bray 
 (Vt.) 77 ; Stewart v. Smith, 28 111. 397 
 Jenny Lind Co. v. Bower, 11 Cal. 194 
 Reynoulds v. Jourdan, 6 Cal. 108 
 Dent V. Steamship Co., 49 N. Y. 320 
 Schnitzer v. Print Works, 114 Mass 
 123; Page v. Cole, 120 Mass. 37 
 Hoioard v. Ins. Co. 109 Mass. 387 
 Murray v. Hatch, 6 Mass. 465. In 
 Ganson v. Madigan, 15 Wis. 144, 
 usage was admitted to show what 
 was meant by the word " team." In 
 Whitney v. Boardman, 118 Mass. 242, 
 to show what was meant by the 
 words "all faults," in a contract 
 where certain property was sold 
 "with' all faults," and generally 
 where it is shown that a word has 
 acquired a special or technical mean- 
 ing in a certain trade it may be 
 shown, because it is presumed that 
 every person conducting such trade 
 uses the language of the trade, and 
 
 makes his contracts in conformity 
 with the sense in which such lan- 
 guage is therein employed. Carter 
 V. Coal Co. 77 Penn. St. 286; Mieghan 
 V. Bank, 25 Id. 288. And the same 
 rule prevails where words are used 
 in a peculiar sense in a certain dis- 
 trict or locality. Pope v. Nickerson, 
 3 Story (U. S.) 465; Trimble v. Vig- 
 nier, 1 Bing. (N. C.) 151; De LaVega 
 V. Vianna, 1 Br. Ad. 284 ; Be Wolfe v. 
 Johnson, 10 Wheat. (U. S.) 367 ; Clay- 
 ton V. Greyson, 5 Ad. & El. 502; Aben 
 V. Carson, 62 Mo. 207. The usage of 
 a trade is admissible to fix the exact 
 liability of the parties in cases where 
 the contract is silent in that respect, 
 and the law has fixed no definite 
 standard. Thus, in a contract by 
 which A. agrees to work for B. ten 
 days, at S2.50 a daj', the contract 
 seems definite enough, but A. has 
 really worked 120 hours, and the 
 question is, has he worked more or 
 fess than 10 days. If he has worked 
 more than that number of days, he is 
 entitled to additional pay in the pro- 
 portion that the excess bears to the 
 price per day; if less, then B. is en- 
 titled to a proportionate deduction. 
 The law has fixed no definite stand- 
 ard, therefore usage is the only in- 
 strumentality that can be brought in 
 to solve the question, and the courts 
 admit it. Hinlon v. Locke, 5 Hill (N. 
 Y.) 437. So to show what is meant 
 by the words " weeks," " months," 
 &c., in a certain class of contracts. 
 Grant v. Maddox, 15 Moll. 737 ; Jolly 
 W.Young, 1 Esp. 186. So, too, where 
 certain work, as "plastering" a 
 house, or " laying a cellar wall," &c., 
 &c., is to be done at so much per 
 
92 
 
 THE USAGES OF TRADE AND THEIE 
 
 ing the meanings of the words used in any document regard 
 must be had to their ordinary use. A dictionary is, after 
 all, only a volume of precedents. But words have not only 
 a common, conversational and literary meaning, they very 
 often have a technical, a business sense, and in transactions 
 connected with that particular trade or profession there is 
 every probability that the Janus-faced word will be used in 
 its technical sense, and it is there of importance, by means 
 of witnesses conversant with the business, trade and locality, 
 to which the document relates, to speak as to the particular 
 conventional meaning of the words in question, (a;) 
 
 square yard, evidence of the usage 
 of plasterers, in the locality where 
 the contract was made, has been held 
 admissible to determine whether, in 
 ascertaining the quantity, the whole 
 sides of the house should be mea- 
 sured as solid, or whether allowances 
 should be made for openings of win- 
 dows and doors. The courts justh' 
 hold that contracts of this character 
 are ambiguous to the extent that 
 evidence of the usage of the trade 
 is admissible to ascertain the true 
 method of measurement and the 
 number of yards, &c., that should 
 be paid for, provided the usage is 
 not unreasonable. Walk v. Bailey, 
 49 N. Y. 467 ; Ford v. Tirretl, 9 Gray 
 (Mass.) 401 ; Loive v. Lehman, 15 
 Ohio St. 179. It may be stated as a 
 general rule, that where a word or 
 phrase used in a contract is susceptible 
 of two or more meanings, extrinsic evi- 
 dence is admissible to ascertain in which 
 sense it was employed by the parties, and 
 if a usage exists by which the words, 
 in the trade to which the contract 
 relates, have acquired a definite 
 meaning that is regarded as the real 
 exponent of the true intention of the 
 parties. Bottomley v. Forbes, 5 Bing. 
 (N. C.) 121 ; Journu v. Bordieu, Park 
 
 on Ins. 245 ; Mason v. Skurry, Id. 245 ; 
 Mackenzie v. Dunlop, 3 Macg. (S. C.) 
 26 ; Buckle v. Knoop, 2 L. E. Exchq. 
 125. 
 
 (x) See Bell's Com. b. 3, pt. 1, oh. 
 3 (7th ed.), vol. 1, p. 456 ; see also 
 per Lord Eldon, in Anderson v. 
 Pitcher, 2 B. & P. 164; Cutter v. Pow- 
 ell, 6 T. R. 320. Commercial men 
 may be called as witnesses not onh' 
 to prove the meaning of certain 
 terms used in mercantile transac- 
 tions, but also to prove any commer- 
 cial usage. Chaurand v. Augerstein, 
 Peake 43, but when decisions are 
 made thereon it becomes the law of 
 the land, of which not only all par- 
 ties, but also the court, is bound to 
 take notice. Bank of Columbia v. 
 Fitzhugh, 1 H. & G. (Md.) 239 ; Branch 
 V. Burnley, 1 Call. (Va.) 159; Come- 
 qua V. Willing, Pet. (U. S. C. C.) 230; 
 Robertson v. Money, 1 Ry. & M. 75 ; 
 Vhde V. Walters, 3 Camp. 16. The 
 phrase, usage of trade, implies a 
 restriction to that class of merchants 
 or persons who deal in a certain 
 article or prosecute a business to 
 which the usage relates. Astor v. 
 Union Ins. Co. 7 Cow. (N. Y.) 202; 
 Thompson v. Sloan, 23 Wend. (X. Y.) 
 71. The fact that a particular mode 
 
ADMISSIBILITY AS EVIDENCE. 93 
 
 The Legal Principles and Usage as Evidence. 
 
 Sec. 64. The principles which have governed the admis- 
 sion of the evidence of usage in such cases have been uniform, 
 but an important question arises as to the expediency of an 
 indiscriminate admission of usages in explanation of written 
 contracts, which has to do with the whole policy of the law ; 
 and as the subject is one which by its nature should be con- 
 sidered before entering upon a minute account of the various 
 decisions in connection with the reception of evidence in 
 such cases, this seems the proper place to set out one or two 
 of the opinions which have been expressed upon the subject, 
 and the principles which ought to guide to an answer to this 
 important question. 
 
 As to the Extent to which Usage Should be Admitted to Vary 
 "Written Contracts — Practice of Traders. 
 
 Sec. 65. There have been many doubts expressed as to the 
 expediency of the extension of the rule as to the admissibil- 
 ity of evidence of usage. That it was originally admissible 
 only to explain written contracts, that it was used to assist 
 in the rational construction of written instruments, is cer- 
 tain ; but it is equally beyond doubt that in many cases it 
 had been admitted to put a construction upon such writings 
 at variance with that which was in the intention of the par- 
 ties. There are scarcely any questions which come before 
 
 of doing a certain thing in a certain 13 Penn. St. 33; Barr v. Sickles, 17 
 trade or business is very common, Ark. 428. As a general rule the evi- 
 but that a few persons engaged in deuce of one person is not sufficient 
 the trade do not do so, is not suffi- to estaWish a usage, but whether or 
 cient to establish a usage of that not it will have that effect will de- 
 trade, because it is lacking in uni- pend upon the experience of the 
 formity of application. Castitt v. person in, and his general knowl- 
 Crawford, 7 Ala. 635, nor generally edge of, the trade and its methods, 
 can a custom or usage be proved by Halmerson v. Cole, 1 Speers (S. C.) 321 ; 
 an isolated instance, nor can evi- Thomas v. Graves, 1 Mill's (S. C.) 
 dence of a usage of one person en- Const. 309; SisseH v. iJyam, 23 111.566; 
 gaged in a business be operative to Partridge v. Forsyth, 29 Ala. 200 ; Vail 
 establish a general usage. The Para- v. Rice, 5 N. Y. 155 ; Hamilton v. Nick- 
 gon,lWa.re (U.S.)322; Coke y.Dodd, erson, 13 Allen (Mass.) 351. 
 
94 
 
 THE USAGES OF TRADE AND THEIK 
 
 courts of law so difficult of decision as those involving cus- 
 toms. Here the court has to deal with something which is 
 vague and indefinite, which bears much similarity to law, 
 but which yet comes before them in the guise of evidence, 
 which is not definitely written in books, but lives only in the 
 breath of the public and the vague traditions of the actions 
 of men. It requires not only le'gal learning but genius to 
 deal with such cases, and it is not to be wondered at if many 
 of the common law judges shrink from the task of exercising 
 such an indefinite jurisdiction. Lord Campbell, with great 
 sagacity, has pointed out this fact,(y) "Lawyers," he says. 
 
 {y) See 7 El. & Bl. at p. 279. In 
 many of the States in this country 
 tl:ere is a strong tendency to exclude 
 usage, not only where it in any 
 measure conSicts with the terms of 
 the contract, but also where it con- 
 flicts with the well established rules 
 of the common law. " I am among 
 those judges," said Story, J., in Bon- 
 nell V. Columbia Ins. Co., 2 Sum. (U. 
 S.) 367, " who think that usages 
 among merchants should be very 
 sparingly adopted, as rules of court, 
 by courts of justice, as they are often 
 founded in mere mistake, and still 
 more often in the want of enlarged 
 and comprehensive views of the full 
 bearing of principles.'' In Barnard 
 \. Kellogg, 10 Wall. (U. S.) 393, Davis, 
 J., in reference to the office of 
 usages says, "Whatever tends to un- 
 settle the law and make it different 
 in the different communities into 
 which the State is divided, leads to 
 mischievous consequences, embar- 
 rasses trade, and is against public 
 policy. If, therefore," he adds, " on a 
 given state of facts the rights and lia- 
 bilities of the parties are fixed by the 
 general principle of the common law, 
 they cannot be changed by any local 
 custom of the place where the contract 
 
 was made." In New York the rule 
 is well established that evidence of 
 a custom or usage cannot be re- 
 ceived to change the legal import of 
 a contract. Holmes v. Pettingill, 1 
 Hun. (N. Y.) 366, affd. 60 K Y. 646; 
 Lane v. Bailey, 47 Barb. (N". Y.) 395 ; 
 Vail V. Rice, 5 N. Y. 155 ; Dalton v. 
 Bavids, 2 Hill (N. Y. 0. P.) 472; 
 Hinton v. Locke, 5 Hill (N. Y.) 437 ; 
 Allen V. Bykers, 3 Id. 593 ; Bissell v. 
 Campbell, 54 N. Y. 353 ; Lawrence v. 
 Maxwell, 53 N. Y. 19 ; Higgins v. 
 Moore, 34 N. Y. 417; Taylor v. 
 Ketchum, 5 Eobt. (N. Y.) 507 ; Wads- 
 worth V. Allcott, 6 N. Y. 64 ; Bargett v. 
 Orient Ins. Co., 3 Bos. (N. Y.) 385; 
 Lombard v. Case, 47 Barb. (N. Y.) 95; 
 Wall V. East River Ins. Co., 3 Durr. (N. 
 Y.) 264. But the courts hold that 
 such evidence is admissible to explain 
 a rule of commercial law. Firth v. 
 Barker, 2 John. (N. Y.) 327; Emery 
 V. Bunbar, 1 Daly (N. Y. C. P.) 408; 
 Cutwater v. Nelson, 20 Barb. (N. Y.) 
 29 ; Schiefflin v. Harvey, 6 John. (N. 
 Y.) 170 ; Markham v. Jandon, 41 (N. 
 Y.) 235; Gibson v. Culver, 17 Wend. 
 (N. Y.) 305; Otsego County Bank v. 
 Warren, 18 Barb. (N. Y.) 290. It is 
 also held in, the same State that such 
 evidence is not admissible to vary 
 
ADMISSIBILITY AS EVIDENCE. 
 
 95 
 
 " desire certainty, and would have a contract express all its 
 
 the tei-ms of an express agreement. 
 Main v. Eagle, 1 E. D. S. (N. Y. C. P.) 
 €17 ; Stebbins v. Brown, 65 Barb. (N. 
 Y.) 274; Parsons v. Miller, 15 Wend. 
 (N. Y.) 561 ; Bradley v. Wheeler, 44 
 N. Y. 495 ; Collender v. Dinsmore, 55 
 N. Y. 200 ; Groat v. Gile, 51 N. Y. 431 ; 
 Mercantile Ins. Co. v. Staie Jns. Co., 25 
 Barb. (N. Y.) 319; Simmons v. £aw, 
 S Keyes, (N. Y.) 217. Therefore, 
 when certain property is sold with- 
 out an express warranty, it is held 
 that evidence of a usage of trade to 
 treat all such sales as with warranty 
 is inadmissible. Bieme v. Dord, 5 
 N. Y. 95 ; Hawes v. Laiorence, 4 Id. 
 845. Substantially the sa&e doc- 
 trine, in reference to all these mat- 
 ters, prevails in Massachusetts. 
 Homer v. Dorr, 10 Mass. 26 ; Strong v. 
 Bliss, 6 Met. (Mass.) 393 ; Hoskins v. 
 Warren. 115 Mass. 514; Dickinson v. 
 Gay, 7 Allen (Mass.) 9; Richardson 
 V. Copeland,Q Gray (Mass.) 536; Rice 
 V. Codman, 1 Allen (Mass.) 377 ; Me- 
 chanics Bank v. Merchants Bank, 6 
 Met. (Mass.) 13; Bliss v. Ropes, 9 
 Allen (Mass.) 339. As to admissibil- 
 ity to affect contracts, Brown v. 
 Forster, 113 Mass. 136 ; Atkins v. 
 Sowe, 18 Pick. (Mass.) 16; Macomber 
 v. Parker, 13 Id. 175; Randall v. 
 Rotch, 12 Id. 107 ; Dams v. Galloupe, 
 111 Mass. 121 ; Snelling v. JTaZZ, 107 
 Jd. 134 ; also, in Pennsylvania, Bol- 
 ton v. Colder, 1 Watts (Penn.) 360; 
 Christian v. Dripps, 28 Penn. St. 271 ; 
 Brown v. ^n-o«, 6 W. & S. 402 ; Coxe 
 v. Heisley, 19 Penn. St. 243 ; Weaver 
 v. J'e^fei/, 29 Penn. St. 243 ; Evans v. 
 Myers, 26 Jd. 114. But whatever the 
 courts may say as to the introduction 
 of evidence of a usage that conflicts 
 with the well settled rules of law, it 
 will be found in practice, and by a 
 
 careful examination of the case, that 
 the rule exists more in theory than 
 in practice, and that the rule really 
 is nothing more nor less than that, 
 evidence of a usage that conflicts with 
 a well settled rule of law, muSi be of 
 such a character as to afford irresistible 
 evidence that the parties knew of, and 
 contracted in reference to, the usage, 
 rather than in reference to the rules of 
 law, and that where nothing more than 
 mere proof of a usage exists, and the 
 parties knowledge thereof, it will be pre- 
 sumed that the parties contracted in 
 reference to the law rather than the 
 usage. Adams v. Pittsburgh Ins. Co., 
 76 Penn. St. 411; Jones -v. Wagner, 66 
 Id. 429 ; Barnard v. Kellogg, 10 Wall. 
 (U. S.) 383 ; Overman v. Hoboken 
 Bank, 30 N. J. L. 61 ; Id., 31 Id. 563. 
 A contrary rule would be not onl}' 
 inconsistent, but actually absurd. 
 It would in effect overturn a well 
 settled rule that parties may waive 
 the provisions of the common law, 
 or a statute even, and contract in 
 direct opposition thereto, unless the 
 statute prohibits such a contract, or 
 it is malum in se or opposed to the 
 policy of the law. Therefore there 
 can be no question but that- in all 
 cases where the parties may expressly 
 contract in opposition to the common 
 law or a statute, evidence of a usage 
 may be given to show that the parties in 
 a given case contracted in reference to 
 it rather than in reference to the law, 
 but in such cases the presumption 
 will prima facise be that the parties 
 contracted in reference to the law, 
 and in order to give effect to the 
 usage, the evidence must be such as 
 to fairly overcome this presumption. 
 To illustrate, take the case of Bar- 
 nard V. Kellogg, 10 Wall. (U. S.) 383. 
 
96 
 
 THE USAGES OF TRADE AND THEIR 
 
 terms, and desire that no parol evidence beyond it should 
 
 Suppose that in that case both par- 
 ties had known of the usage in ques- 
 tion, and it had been shown that 
 for that reason the purchaser had 
 omitted to examine all the wool, or 
 that the parties had had similar 
 transactions before, in which the 
 usage had been recognized and 
 acted upon, can there be any ques- 
 tion but that in tliat event the usage 
 would have been held effectual, and 
 the sale treated as one with warranty 
 as to quality ? In this case it will be 
 noticed that the court made the 
 qualification that the usage could 
 not be relied upon to establish a 
 warranty, " especially where the parties 
 did not know of the custom." Again, 
 suppose that by statute it is provided 
 that interest on accounts shall be 
 chargeable one year after it accrued, 
 or by the common law, after a bal- 
 ance is struck ; but a certain 'mer- 
 chant has established a usage to 
 charge interest on monthly balances, 
 which is known to his customers, 
 and upon which they have acted in 
 all former transactions ; can there be 
 any doubt but that the courts, even in 
 New York, as has been held in Massa- 
 chusetts, would be compelled to hold, 
 as the courts of Pennsylvania have, 
 that such usage will prevail in all 
 transactions between such merchant 
 and his customers, rather than the 
 rules of law in that regard ? In other 
 words, is not the usage in such 
 cases tacitly annexed to contracts for 
 credit between such parties, so as to 
 become a law unto them ? Fisher v. 
 Sargent, 10 Gush. (Mass.) 250 ; Loring 
 V. Gurney, 5 Pick. (Mass.) 15; Watt v. 
 Hoch, 25 Penn. St. 411 ; Adams v. 
 Palmer, 30 Penn. St. 346 ; Koons v. 
 Miller, 3 W. & S. (Penn.) 271. The 
 
 editors of Phillips on Evidence 
 (Messrs. Cowen and Hill) in a note 
 upon this subject, give the question 
 as to the admissibility of evidence 
 of a usage that conflicts with the 
 general law a very careful and elab- 
 orate consideration. They say, vol. 
 2, p. 612, "We frequently meet with 
 general propositions like the follow- 
 ing: 'A usage must be reasonable, 
 and can never be received to con- 
 tradict a settled rule of law.' " Frith 
 V. Barker, 2 John. (N. Y.) 335; Eager 
 V. Atlas Ins. Co. 14 Pick. (Mass.) 141 ; 
 Homer v. Dorr, 10 Mass. 26 ; Henry v. 
 Risk, 1 Dall. (U. S.) 265; Bowen v.. 
 Jackson, "Whsirt. (Penn.) 252; Stoever 
 V. Tf7i.iiman,6Binn.(Penn.)416; Ban- 
 kin V. American Ins. Co., 1 Hall (N. 
 Y.) 619; Brown v. Jackson, 2 Wash. 
 (U. S. C. C.) 24 ; Winthrop v. Union 
 Ins. Co., 2 Id. 9 ; Barksdale v. Brown, 
 1 N. & McC. (S. C.) 517 ; (to which 
 may be added, Boardman v. Spooner, 
 13 Allen (Mass.) 353; Famsworth v. 
 Hemmer, 1 Id. 494 ; Glass Co. v. Morey, 
 108 Mass. 570 ; Barnard v. Kellogg, 10 
 Wall. (U. S.) 383; Evans v. Wain, 71 
 Penn. St. 69; Mears v. Waples, 3 
 Houst. (Del.) 581 ; Dewees v. Lockhart, 
 1 Tex. 585 ; Jones v. Wagner, 66 Penn. 
 St. 430 ; Randall v. Smith, 63 Mo. 105 ; 
 Security Bank v. Bank of the Republic, 
 67 N. Y. 458. Edie v. The East India 
 Company, 2 Burr. 1216, will, it is ap- 
 prehended, be found the nucleus of 
 most of this doctrine ; and when con- 
 sidered in reference to the particular 
 facts to which it was applied, is 
 undoubtedly correct. There, Lord 
 Mansfield had received evidence at 
 Nisi Prius of the custom of mer- 
 chants, that in a case of a bill of 
 exchange payable to order, the in- 
 dorsement was restrictive, unless 
 
ADMISSIBILITY AS EVIDENCE. 
 
 97 
 
 be receivable. But merchants and traders with a multi- 
 
 that also contained the word order. 
 At the bar, on motion for a new trial, 
 he and the other judges concurred, 
 that the law being settled, the custom 
 of merchants could not control it; 
 that is to say, would not subvert the 
 law of the land, as such ; not that 
 the parties might not make the in- 
 dorsement restrictive by special 
 agreement, or by the customary 
 course of some particular business, 
 making an exception in their own 
 case, leaving the general law to take 
 its course. But there the bill of ex- 
 change was drawn in the East Indies, 
 and the main evidence came from 
 bankers in London. Their opinion 
 was allowed by Lord Mansfield to 
 overturn a rule of law which per- 
 vaded the whole empire, and indeed 
 the whole commercial world. The 
 court, Coioen, J., delivering the opin- 
 ion. Gibson v. Culver, 17 Wend. (N. 
 Y.) 308; Rushforth v. Hadfleld, 17 
 East 225, lays down the true doc- 
 trine. There the court agreed that 
 evidence of usage was admissible to 
 enlarge the rights of carriers. The 
 defendants claimed a lien on the 
 goods carried, not only for the price 
 of carrying them in particular, but 
 for a general balance due to them 
 for previous carriage. The law de- 
 nies to carriers a claim for a general 
 balance; but a long train of evi- 
 dence was received, to show that 
 custom and a particular course of 
 trade, among a particular sort of 
 carriers, had overcome the law. The 
 jury found against the defendants, 
 but the evidence- was so imposing 
 that they moved for a new trial. 
 Chambre, J., who tried the cause, put 
 it to the jury, whether the usage was 
 so general as to warrant them in pre- 
 
 suming that the parties who deliv- 
 ered the goods to be carried knew of 
 it, and understood that they were 
 contracting in conformity to it; if 
 not, the general rule of law would 
 entitle the plaintiffs to a verdict. All 
 the judges concurred that a custom 
 of this kind, which is quoad hoc, to 
 supersede the general law of the 
 land, should be clearly proved, and 
 the interested encroachments of per- 
 sons engaged in a particular trade 
 watched with great jealousy. None 
 of them disapproved the qualifica- 
 tions under which the case went to 
 the jury ; and Lord EHenborough, C. 
 J., and Grose, J., put it on the ground 
 df a usage so general, and so uni- 
 formly acquiesced in for a length of 
 time, that the jury would feel them- 
 selves constrained to say it entered 
 into the minds of the parties, and 
 made a part of the contract. But 
 all this has nothing to do with the 
 abstract question of competency. 
 Usage, when it goes to change the 
 law, is always hard to be made out ; 
 yet, if counsel propose to prove such 
 a usage, and think they can estab- 
 lish it, there is, it seems, no rule of 
 law which forbids the attempt. Gib- 
 son V. Culver, 17 Wend. (N. Y.) 805, 
 307, 308, 309, et seq. The doctrine on 
 this subject has been considerably 
 discussed in South Carolina. There 
 a usage of the river trade, for the 
 carrier of goods to look to the pro- 
 duce and consignee alone, for freight, 
 was set up as a defense to the person 
 who sent them ; and it was held, that 
 the usage might be proved. Oi-ant, 
 J., who delivered the opinion, con- 
 ceded that it would be difficult to 
 make out the usage in such cases ; 
 but that has nothing to do with its 
 
98 
 
 THE USAGES OF TKADE AND THEIK 
 
 plicity of transactions pressing on them, and moving in a 
 
 competency. In respect to the un- 
 reasonableness of the usage, he said 
 that, " although at the first blush, 
 the custom alleged may appear un- 
 reasonable, and such as ought not to 
 prevail, this is by no means conclu- 
 sive that the usage was not a good 
 one in law. In such cases recourse 
 is had to artificial and legal reason ; 
 and thus considered, the usage may 
 be shown to be beneficial to the boat- 
 men themselves." He further ob- 
 served : " It is competent for a man 
 or a body of men to renounce a 
 common law right, if they think 
 proper; and if, in relation to the 
 river trade, either from views of in- 
 terest, on the part of boat owners, 
 or other politic considerations, ex- 
 pediency has pointed out the pro- 
 priety, and usage has sanctioned it, 
 then it might become the law by 
 which the contract should be ex- 
 pounded." Middlelon v. Heyward, 2 
 N. & MbO. (S. C.) 9. But see Hey- 
 ward V. Middleton, 3 McC. (S. C.) 121. 
 The fact of a particular thing being 
 sanctioned by usage so general, uni- 
 form and extensive, as to raise the 
 presumption that all who deal in 
 reference to its subject, are pre- 
 sumed to have knowledge of the 
 usflge, and to contract in reference 
 to it, would seem in itself to be very 
 cogent evidence of its expediency 
 and reasonableness, as it respects the 
 class of persons among whom it pre- 
 vails ; and if not objectionable in any 
 other point of view, the simple ques- 
 tion should be, is it a usage ? See the 
 observations of Cheves, J., in Barks- 
 dale V. Brown, 1 N. & McC. (S. C.) 
 521. This accords with the elemen- 
 tary notion as to the origin of usages 
 and customs generally, in respect to 
 
 which it has been said, that where 
 the people of a particular class or 
 place " find any act to be good and 
 beneficial, and apt and agreeable to 
 their nature and dispositions, they 
 use and practice it from time to time, 
 and so by frequent iteration and 
 repetition of the act, a custom is 
 formed." The Case of Tanistry, Da vies' 
 Hep. 87. Thus the custom of gavel- 
 kind and borough English have 
 grown up, and although contrary to 
 the common law, are allowed to be 
 good. Jd. 88. A strong case for show- 
 ing that a local usage is not neces- 
 sarily bad because opposed to the 
 general law, is that of Snowdon v. 
 Warder, 3 Rawle (Penn.) 181. There 
 a usage, in Philadelphia for vendors 
 of cotton in that city, to be answer- 
 able for defects, without either fraud 
 or express warranty being proved, 
 was established, and a vendor held 
 liable accordingly. This was virtu- 
 ally permitting that class of dealers 
 to abrogate the common law, which 
 else must have applied, and intro- 
 duce the civil law principle in its 
 stead. When a written contract for 
 the sale of goods is definite and cer- 
 tain in its terms, as to the goods sold, 
 or can be made so by showing the 
 subject (a lot of oats) to which the 
 parties intended it to apply, it can- 
 not be controlled or modified in that 
 respect by evidence of commercial 
 usage. Vail v. Rice, 5 N. Y. 155. Nor 
 can a usage of trade be shown, that 
 a contract for flour of a particular 
 brand may be satisfied by the deliv- 
 ery of flour of an equal or better 
 quality. Beats v. Terry, 2 Sand. (N. 
 Y.) 127. A usage will not be received 
 in evidence to vary the construction 
 of a contract, unless it was known 
 
ADMISSIBILITY AS EVIDENCE. 
 
 99 
 
 narrow circle and meeting each other, desire to write little 
 
 to the parties and they contracted in 
 reference to it. Wheeler v. Newbold, 
 16 N. Y. 892; 5 Duer 29. But par- 
 ties are presumed to contract with 
 reference to a known usage. 5 Hill 
 (N. Y.) 437; 20 Barb. (N. Y.) 29. 
 Though evidence of usage cannot be 
 shown where the terms of the con- 
 tract are plain and unambiguous. 
 Wadworth v. Allcott, 6 N. Y. 64. The 
 result of the authorities, therefore, 
 seems to be that a particular usage 
 in reference to the contract in ques- 
 tion, may be proved to influence its 
 construction, though contrary to 
 some rule of general law ; and then 
 it will be a question of fact, triable 
 like other facts, whether the parties 
 contracted in reference to the usage 
 or not ; in other words, whether they 
 did or did not intend to adopt the 
 usage, instead of the general law, as 
 the rule for interpreting the con- 
 tract. See Gordon v. lAttk, 8 S. & E. 
 (Penn.) 533 ; Snowden v. Warder, 3 
 Kawle (Penn.) 101; Renner v. Bank 
 of Columbia, 9 Wheat. (U. S.) 581, 584, 
 585 ; Jones v. Fales, 4 Mass. Rep. 245 
 Kennebeo Bank v. Page, 9 Mass. 156 
 Kennebec Bank v. Hammatt, Id. 159 
 Widgerey v. Monroe, 6 Id. 449 ; Weld 
 V. Gotham, 10 Id. 366 ; Wood v. Wil- 
 cox, 9 Wend. (N. Y.) 349; Blanchard 
 v. Hilliard, 11 Mass. E,. 85 ; Middleton 
 V. Heyward, 2 N. & MoCord (S. C.) 9 ; 
 Halsey v. Brown, 3 Day (Conn. ) 346. 
 But see the cases in 25 Wend, and 6 
 Hill (N. Y.), cited ante in this note. 
 Limitations upon this right, how- 
 ever, do undoubtedly exist; and 
 cases may often arise where the 
 court must adjudge the usage abso- 
 lutely void in itself. If that which 
 is thus sought to be incorporated 
 with the contract would be void as 
 
 an express stipulation, the evidence 
 cannot be allowed. Hence, usages 
 sanctioning what is m,alii,m, in, se or 
 malum, prohibitum, are invalid. Snow- 
 den V. Warder, 3 Eawle (Penn.) 107 ; 
 Bryant v. The Commonwealth Ins. Co., 
 6 Pick. (Mass.) 131. Usages favoring 
 the taking of unlawful interest, and 
 trenching upon the policy of the 
 statutes on that subject are bad {Bun- 
 ham V. Dey, 13 John. (IST. Y.) 44) ; 
 though usage among bankers has 
 been said to have sanctioned certain 
 practices which else would have been 
 deemed usurious. See per Savage, C. 
 J., in Bank of Utica v. Wager, 2 Cow. 
 (N. Y.) 712, 766; S. C. reversed on 
 error, 8 Id. 398. Usages in restraint 
 of trade are void, semble. Williams v. 
 Gillman, 3 Me. 281. So of usages 
 originating in and continued by vio- 
 lence, oppression and fraud, or con- 
 trary to the general good, and such, 
 it has been said, are, for the most 
 part, those usages and customs which 
 have been adjudged void by the 
 English courts, as "unreasonable," 
 ■' against common right," " contrary 
 to law," &c., &c. Davies' Rep. 89. A 
 usage sanctioning what is unjust and 
 against good morals, is bad; e.g., a 
 usage among banks, not to correct 
 mistakes in counting money unless 
 discovered before the person leaves 
 the room {Gallatin v. Bradford, 1 
 Bibb (Ky.) 209); or a custom of 
 mechanics to charge for materials 
 according to a standard which would 
 give them pay for materials never 
 furnished. Whitsides v. Meredith, 3 
 Yeates (Penn.) 318. See Kendall v. 
 Russell, 5 Dana (Ky.) 501. So of a 
 custom to commit acts of trespass 
 upon others' property ( Waters v. Lilly, 
 4 Pick. (Mass.) 145; and a custom of 
 
100 
 
 THE USAGES OF TRADE AND THEIR 
 
 and leave unwritten what they may take for granted in 
 
 agents to depart from the instruc- 
 tions of their principal. Barksdale 
 V. Brown, 1 N. & McC. (S. C.) 517. 
 A custom of masters to sell the cargo 
 of a stranded vessel, without neces- 
 sity, has been characterized as a 
 usage against " faith and common 
 honesty," and therefore bad. Bryant 
 V. The Commonwealth Ins. Co. 6 Pick. 
 (Mass.) 145. Quere, whether a local 
 usage, exempting proprietors of car- 
 rier vessels from all responsibility in 
 respect to goods committed to their 
 charge, except for injuries arising 
 from the negligence of the master, 
 would not be void, as contrary to the 
 general good, and subversive of the 
 interests of trade and navigation. 
 See what was said by Story, J., in The 
 Schooner Reeside, 2 Sum. (U. S.) 574, 
 575; also, per Cowen, J., in Cole v. 
 Goodwin, 19 Wend. (N. Y.) 272, et seq. 
 It follows, from what has been said, 
 that evidence of usage may be re- 
 ceived to vary, in some sense, the 
 legal effect of a written instrument. 
 But see Eager v. Atlas Ins. Co., 14 
 Pick. (Mass.) 144, as to what is there 
 said, however, quere. Prima fade, 
 every contract is to be understood as 
 containing, in some sort, an implied 
 reference to the general law ; but 
 when a state of facts is made out, 
 which rebuts that presumption, and 
 shows that the parties intended to 
 adopt a particular usage as the rule 
 of interpretation, the latter shall 
 prevail, provided it be such a usage 
 as the parties had a right to adopt. 
 But it is obvious that where the con- 
 tract itself manifests an intention, 
 either directly or indirectly, to ex- 
 clude the usage, no evidence of it 
 can be received without overstepping 
 the limits of exposition. "A custom 
 
 or usage of trade is only allowable 
 as one mean to arrive at the inten- 
 tion, never to thwart or control it. 
 If the stipulations of a contract in- 
 dicate an intention in the obligor, 
 variant from the usage, then should 
 the stipulations prevail; otherwise, 
 an obligation may be imposed con- 
 trary to the intention, though pro- 
 vided against by the express terms 
 of the contract." Per Ewing, J., de- 
 livering the opinion of the court in 
 Kendall v. Russell, 5 Dana (Ky.) 501, 
 502. See per Story, J., in Schooner 
 Reeside, 2 Sum. (U. S.) 570. What 
 shall be deemed such an expression 
 of intention, inconsistent with the 
 usage, as to exclude the latter, is 
 many times a question of considera- 
 ble difficulty. The general rule is 
 clear; no extrinsic evidence of usage 
 can be received to vary, add to, or 
 contradict the plain sense of the 
 contract when once properly ascer- 
 tained. See Mumford v. Hallett, 1 
 John. (N. Y.) 439 ; Rankin v. The 
 American Ins. Co., 1 Hall (N.Y.) 619; 
 The Schooner Reeside, 2 Sum. (U. S.) 
 56, and Turney v. Wilson, 7 Yerg. 
 (Tenn) 540; Stoever v. Whitman's 
 Lessee, 6 Binn. (Penn.) 516; Turner 
 V. Burrows, 5 Wend. 541, 547 ; Par- 
 sons V. Miller, 15 Id. 562 ; Snoxu- 
 den V. Warder, 3 Rawle (Penn.) 107; 
 Yeates v. Pim, 2 Marsh. 141 ; Blackett 
 V. Royal Exchange Ass. Co., 2 C. & J. 
 244. But the application of it de- 
 pends so much upon particular 
 forms of expression and terms in the 
 contract, which may happen to strike 
 different minds in different ways, 
 as well as upon various collateral 
 and extrinsic circumstances, that 
 it is not extraordinary to find 
 learned judges disagreeing some- 
 
ADMISSIBILITY AS EVIDENCE. 
 
 101 
 
 every contract. In spite of the lamentations of judges they 
 
 what on this point. That disagree- 
 ment, as we have seen, is most 
 strikingly apparent in those cases 
 where usage has been invoked to 
 supersede some rule of general law. 
 Then the presumption that the par- 
 ties contracted in reference to the 
 general law, must be overcome be- 
 fore the usage can be applied ; and 
 very slight indications of intent, ap- 
 pearing in the instrument, have been 
 seized upon as corroborating that 
 presumption, to the extent of ex- 
 cluding the usage altogether. This 
 is illustrated by many of the cases 
 supra. In Eager v. Atlas Ins. Co. 14 
 Pick. (Mass.) 141, it was held to be 
 the general law as to insurance of 
 vessels, that in adjusting a partial 
 loss on a ship which has been re- 
 paired, the proceeds of the old 
 materials not used in the repairs are 
 first to be deducted. The under- 
 writers claimed, in virtue of a local 
 usage at Boston (the place where the 
 policy was made), that they had the 
 right of deducting one-third new for 
 old from the gross amount of the 
 expense of repair. The policy was 
 according to a form which had been 
 recently adopted by all the insur- 
 ance companies at Boston, and con- 
 tained an express reference to cer- 
 tain usages of the Boston insurance 
 companies, but none in respect to 
 this. There were some stipulations, 
 moreover, in the policy, touching 
 partial losses, which, however, were 
 aside of the point designed to be 
 established by the usage. Another 
 fact adverted to by the court was, 
 that the question as to the general 
 law had been settled in New York 
 years before the present policy was 
 underwritten, and for some time be- 
 
 fore had been pending in Massachu- 
 setts for decision. Id. 144. " From 
 these and other circumstances," the 
 court said, "the presumption is 
 strong that the parties did not treat, 
 as to the mode of adjustment on the 
 basis of usage, but on that of the 
 existing law, however it might be 
 decided. When the contract refers 
 to the customs and rules of insurance 
 in Boston, and specifies how far they 
 shall constitute part of the contract, 
 it must be inferred that the parties 
 did not intend that it should be 
 affected thereby beyond the extent 
 specified, especially as the form of 
 the policy was no doubt settled with 
 great care and deliberation." Id. 
 14A, 145. These considerations were 
 deemed quite sufficient to settle the 
 question of usage, but another was 
 added, viz. : that the contract being 
 one of indemnity, and the mode of 
 adjustment contended for by the 
 underwriters being one which would 
 deprive the insured of a full in- 
 demnity, the usage was opposed to 
 the essence of the contract. Id. 145. 
 See as to the mode of adjustment in 
 such cases, according to the general 
 law. Byrnes v. National Ins. Co., 1 
 Cow. (N. Y.) 265; Brooks v. The 
 Oriental Ins. Co., 7 Pick. (Mass.) 259. 
 See also the opinions ol Messrs. Nich- 
 ols, Phillips and Jackson, Amer. Jurist, 
 vol. 5, pp. 252, 262, and vol. 6, p. 45, 
 together with the authorities cited. 
 Where a brickyard was let to H. by 
 E. & L., the owners, under a contract 
 that H. should make bricks in the 
 yard, hire the workmen, &c., give in 
 his time and services, and pa}' a cer- 
 tain sum for every thousand bricks 
 made, as rent; E. & L. stipulating 
 that they would attend to selling the 
 
102 
 
 THE USAGES OF TEADE AND THEIK 
 
 will continue to do so, and in a vast majority of cases of 
 
 bricks, purchasing the materials, col- 
 lecting the bills, &c. ; the parties to 
 share the profits and loss equally, 
 and E. & L. to have the right to re- 
 tain the bricks, or money collected, 
 in their possession, to the amount of 
 all sums, &c., advanced by them from 
 time to time to H. ; held, that the 
 bricks made under the contract were 
 the joint property of the parties, and 
 such being the plain intent ex- 
 pressed, evidence of a usage tending 
 to vary the effect of it in such a way 
 as to show that H. had no property 
 in the bricks, but only a claim to a 
 certain share of the profits, was in- 
 admissible. Macomber v. Parker, 13 
 Pick. (Mass.) 175. In Kendall v. Rus- 
 sell, 5 Dana (Ky.) 501, the plaintiff 
 sued to recover for laying brick in a 
 building. The covenant under which 
 he performed the work bound him 
 to lay as -many bricks as the defendant 
 might need to complete the building, for 
 which the defendant bound himself 
 to pay a given sum per thousand for 
 each thousand brick laid. On the trial 
 the plaintiff claimed to recover ac- 
 cording to a local custom allowing 
 the quantity of brick laid to be 
 ascertained by assuming, as a basis 
 of calculation, that the wliole was 
 solid work, and not regarding open- 
 ings, such as doors, windows, &c. 
 The court held the terms of the con- 
 tract plainly expressive of a different 
 intent, viz. . that the plaintiff should 
 be compensated only for the brick 
 actually laid, and so the usage was 
 inadmissible. See also Whitesides v. 
 itferedi^/i, 3 Yeates (Penn.) 318. There 
 are various usages of trade and com- 
 merce which have been so often 
 proved as matters of fact, and have 
 so far incorporated themselves with 
 
 the general law that courts will 
 judicially recognize them. See Con- 
 sequa v. Willings, 1 Pet. C. C. (U. S.) 
 230; Snowden v. Warder, 3 Rawle 
 (Penn . ) 105 ; Wilcox v. Wood, 9 Wend. 
 349 ; United States v. Arredondo, 6 Pet. 
 (U. S.) 715; Thomas v. O'Hara, 1 
 Const. Ct. S. C. 306. But particular 
 usages, such as these of which we 
 have been speaking, must be proved 
 specially. And the circumstances of 
 the usage h&.r\g prima facie " unrea- 
 sonable," " against the general law," 
 "restricted within very narrow 
 limits," of comparatively " recent 
 origin," &c., &c., always come in to 
 enhance the difficulty of showing 
 that the parties contracted in refer- 
 ence to it, and intended to make it 
 the law of their case. See Gibson v. 
 Ouher. 17 Wend. {N. Y.) 307, 308, 309; 
 Wilcox V. Wood, 9 Id. 349 ; Middleton 
 v.Heyward, 2 N. & McCord (S.C.) 9; 
 Gordon y. Little, 8 S. & R. (Penn.) 535; 
 Eager V.Atlas Ins. Cb. ,14Pick. (Mass.) 
 143, 144 ; Snowden v. Warder, 3 Rawle 
 (Penn.) 105; Thomas v. O'Hara, 1 R. 
 Const. Ct. So. Car. 306; Fumiss v. 
 Hone, 8 Wend. (N. Y.) 266 ; Allegre 
 V. The Maryland Ins. Co., 2 G. & J. 
 (Md.) 136. And perhaps this is the 
 sense in which many cases are to be 
 understood, which lay down the 
 proposition that a usage, to be obliga- 
 tory, must be certain, uniform, reason- 
 able and sufficiently ancient to be gen- 
 erally known, &c. See the case of 
 Kendall v. Russell, 5 Dana (Ky.) 501, 
 and what is said at pp. 503, 504. 
 When the question is of a custom or 
 usage, and it is not known to those 
 who, from their business and con- 
 nections, have the best means of 
 knowing it, ignorance of it is, in 
 some sense, positive testimony of its 
 
ADMISSIBILITY AS EVIDENCE. 
 
 103 
 
 which courts of law hear nothing they do so without loss 
 
 non-existence. Thus, suppose the 
 question to be as to the existence of 
 a usage of trade in a foreign port, 
 according to which the rights of par- 
 ties are to be decided — and that there 
 are two foreign witnesses, both mer- 
 chants belonging to the place, and 
 dealing in the same business, one of 
 whom testifies in support of the 
 usage and the other is ignorant of it, 
 in such case it seems the usage can- 
 not be said to be proved, especially 
 if other merchants from the place 
 are in court and not called on. Per 
 Parker, C. J., in Parrott v. Thatcher, 
 9 Pick. (Mass.) 426, 431. The fact 
 that the usage has been resisted by 
 some, and those insisting upon it, or 
 others of the same class, consenting 
 to a qualification or abandonment 
 of it in consequence of such resist- 
 ance, may be quite material on the 
 general inquiry. See Kendall v. Rus- 
 sell, 5 Dana (Ky.) 501, 503, 504. There 
 is a distinction between inquiring of 
 a witness for the covimon understand- 
 ing as to the efiect or import of a 
 contract susceptible of a clear inter- 
 pretation, and evidence of custom 
 or usage. The latter is admissible, 
 if at all, as a means of interpreting 
 the sense in which the parties under- 
 stood the language in question; 
 while the former may only show the 
 understanding of others, which is 
 immaterial unless it be also the un- 
 derstanding of the parties. Paull v. 
 Lewis, 4 Watts (Penn.) 402, 403. So, 
 semble, as to the general understand- 
 ing of the country in regard to the 
 sense of particular words easily un- 
 derstood ; e. g., the word acre, in a 
 land contract. Id. 403, 404, as to 
 direct evidence of what a party 
 declared he meant by a term 'prima 
 
 facie unmeaning. A question arose 
 at Nisi Prius as to the meaning 
 of the word "cargo," in reference 
 to a ship, and whether it included 
 the whole loading; the counsel 
 cited Sergeant v. Read, 2 Strange 
 1228, to show that it did ; and he 
 was referring to Entick's Diction- 
 ary when he was interrupted by 
 Tindal, C. J., who said : " It is a 
 question of mercantile construction. 
 You had better lay aside yonr dic- 
 tionary and appeal to the knowledge 
 of the jury, for, after all, the diction- 
 ary is not authority." Houghton v. 
 Qilbart, 7 0. & P. 701 ; White v. Van 
 Kirk. 25 Barb. (N. Y.) 16. There is 
 another class of cases where a more 
 direct inquiry must be allowed as to 
 the meaning of writings. Those 
 hitherto considered relate mainly to 
 instances where the judge is sup- 
 posed capable of assigning to the 
 words some signification, without 
 the necessity of resorting to extrin- 
 sic evidence. If the contents of an 
 instrument, however, are utterly un- 
 intelligible in themselves, either 
 from being written in characters 
 which are difficult to be deciphered, 
 or in a language which the court 
 does not understand, &c., the pro- 
 priety of inquiry aliunde is still more 
 apparent. In the progress of the 
 arts, and the ever changing pursuits 
 of mankind, new terms are daily 
 devised among artists and others, in 
 whose peculiar departments they are 
 used, and when not understood there 
 can be no rational objection to ad- 
 mit the evidence of persons con- 
 versant with their meaning to ex- 
 plain them. See per Chancellor, in 
 Sleight v. Hartslwrne, 2 John. (N. Y.) 
 542. In a case where a sculptor gave. 
 
104 
 
 THE USAGES OF TEADE AND THEIR 
 
 or inconvenience, and upon the whole they find this mode of 
 
 by his will, all his " bankers," evi- 
 dence was allowed to show that 
 " bankers " meant solid pieces of 
 wood, on which were placed blocks 
 of marble about to be worked. Gob- 
 let V. Beechey, 3 Sim. 24. See S. C, 
 more fully reported, Wigram on Ext. 
 Ev. 139, et seq. In the same will, the 
 same word "mod" was found, and 
 liberty was given for trying to ascer- 
 tain its meaning by the evidence of 
 persons generally conversant with 
 the subject-matters to which the will 
 related. See this case, post, note 516 ; 
 also, see Mechanics Bank v. Bank of 
 Columbia, 5 Wheat. 336. And, as a 
 general rule, if a party has expressed 
 himself in terms with which, as a 
 member of a particular trade, he is 
 familiar, but which are not under- 
 stood by the court, the evidence of 
 persons acquainted with the mean- 
 ing of such terms is admissible. 
 Wigram on Extr. Ev. 35; Attorney- 
 Oeneral v. The Plate Glass Co., 1 Anstr. 
 39; Smith v. Wilson, 3 B. & Ad. 728; 
 Richardson v. Watson, 4 B. & Ad. 787. 
 The custom of merchants will, not 
 bind a person acting in a different 
 character. Nor will a usage at one 
 port be taken to affect the dealings 
 of parties at another. Thus, the 
 captain of a vessel cannot bind the 
 owner by signing bills of lading, 
 unless he is clothed with express 
 authority for that purpose, or author- 
 ity implied by the usual course of 
 employment or a subsequent assent, 
 and proof of a practice of the cap- 
 tain to sign bills of lading for articles 
 deliverable at one. port, is no proof 
 of authority to sign bills of lading 
 for a different port. The power of a 
 consignee to bind the owner extends 
 only to such acts as are within the 
 
 object of the consignment. Nichols 
 v. BeWolf, 1 R. I. 277. A usage 
 governing a question of legal right 
 cannot be proved by isolated in- 
 stances, but should be so certain, 
 uniform and notorious, that it must 
 probably have been understood by 
 the parties as entering into the con- 
 tract. Cope V. Dodd, 13 Penn. St. 33. 
 Even though evidence of custom 
 cannot be admitted to vary a rule of 
 law, it may be admitted to explain 
 and give a proper effect to the con- 
 tracts and acts of parties. Inglebright 
 V. Hammond, 19 Ohio 337. In order 
 to affect a person with a custom or 
 usage different from the ordinary 
 rules of law, it must be shown to be 
 certain, uniform and so notorious as 
 presumably to be known to the par- 
 ties, and mere proof of an isolated 
 instance where it was applied is not 
 sufficient. Jones v. Wa^er, 66 Penn. 
 St. 429; Cope v. Dadd, 13 Penn. St. 
 33 ; Patterson v. Ben Franklin Ins. 
 Co., 33 Leg. Int. 5; Adams v. Pitts- 
 burgh Ins. Co., 76 Penn. St. 411; 
 Wheeler v. Newbould, 5 Dun. (N. Y.) 
 29; Martin v. Maynard, 16 N. H. 
 165; Sipperly v. Steward, 50 Barb. (N. 
 Y.) 62; Duguid v. Edwards, 50 Id. 
 288 ; Wood v. Hicock, 2 Wend. (N. Y.) 
 501 ; Kendall v. Russell, 5 Dana (Ky.) 
 501 ; Stevens v. Reeves, 9 Pick. (Mass.) 
 198. But parol proof of a particular 
 local custom or usage should not be 
 permitted to control the general law 
 of the land. Christian v. Dripps, 28 
 Penn. St. 271; Bolton v. Coldei-, 1 
 Watts. (Penn.) 360; Wethenll\. Neil- 
 son, 20 Penn. St. 448 ; Broivn v. Anott, 
 6 A. & S. (Penn.) 402 ; Coxe v. Heis- 
 ley, 19 Penn. St. 243. But a local 
 usage, if well established and ancient 
 and uniform, may enter into and 
 
ADMISSIBILITY AS EVIDENCE. 
 
 105 
 
 dealing advantageous even at the risk of occasional litigation." 
 
 become a part of a contract where it 
 does not conflict with the settled 
 rules of law or defeat the essential 
 terms of the contract. Coxe v. Heis- 
 ley, ante ; Wetherill v. Neilson, ante ; 
 Rapp V. Palmer, 3 Watts (Penn.) 178. 
 Usage is evidence of the construction 
 given to the law, and when it is 
 established and uniform it regulates 
 the rights and duties of those who 
 act within its limits, but no change 
 of usage can have a retrospective 
 effect. United States v. Buchanan, 
 Crahbe (U. S.) 563 ; Steiner v. Coxe, 4 
 Penn. St. 13. The usages of a de- 
 partment of the government, in set- 
 tling its accounts, are intended for 
 general rules in the transaction of 
 its business, but will be disregarded 
 by the courts, whenever they oper- 
 ate unjustly upon individuals. United 
 States v. McCall, Gilp. (U. S.) 577; 
 see also United States v. Duval, Gilp. 
 (U. S.) 372. Where a transaction is 
 within the statute against usury, the 
 usage of trade, as to such transac- 
 tion, cannot be received in evidence 
 to show that it is not usurious. Dun- 
 ham V. Bey, 13 Johns. (N. Y.) 40; 16 
 Id. 367 ; S. P. Bank of Utica v. Wager, 
 2 Cow. (N. Y.) 712 ; Bank of Utica v. 
 Smalley, Id. 770 ; Neio York Firemen's 
 Ins. Co. V. Ely, Id. 678. The general 
 custom, and usage under the statutes 
 respecting the proof and acknowl- 
 edgment of deeds, and the form and 
 certificate of acknowledgment, have 
 great weight in the construction of 
 such statutes. Meriam v. Harsen, 2 
 Barb. (N. Y.) Ch. 232. But neither 
 a custom or usage, however ancient, 
 can override a statute. Thus, where 
 a petition for a writ of certiorari con- 
 tained the affidavit of a former as- 
 sessor, setting forth the common 
 
 practice for a long course of years in 
 taking shares of a corporation situ- 
 ated outside of this commonwealth, 
 it was held that the evidence of 
 usage was insufficient to control the 
 legal interpretation of a statute pro- 
 vision. Dwight V. Boston, 12 Allen 
 (Mass.) 316. So, too, a mere custom 
 or usage cannot control the estab- 
 lished principles of law. Schieffelin 
 V. Harvey, Antb. (N. Y.) 56; Strong 
 V. Bliss, 6 Met. (Mass.) 393; Home v. 
 Mlutual &c. Ins. Co., 1 Sandf. (N. Y.) 
 137; Dewees v. Lockhart, 1 Tex. 535. 
 ^ In Coleman v. 'MoMurdo, 5 Rand. 
 (Va.) 51, it was held that the fact 
 that a usiage not sanctioned by law 
 had prevailed for a long time, gave 
 it no force as a rule by which to 
 determine the rigb.ts of parties. The 
 rights of parties are to be deter- 
 mined by law, and not by any local 
 custom or usage, unless there is 
 proof that such custom or usage is 
 certain, general, frequent, and so 
 ancient as to be generally known 
 and acted upon, nor unless it is 
 reasonable. Leach v. Perkins, 17 Me. 
 462; Caldwell v. Dawson, 4 Mete. 
 (Ky.) 121. Known and settled local 
 usages ought to be respected by 
 courts and juries, unless they con- 
 travene the law or policy of the 
 country. Wilcocks v. Phillips, Wall. 
 Jr. (U. S.) 47. A mere local usage, 
 in a small part of the country, can- 
 not change the law, and give the 
 plaintiffs an action against one man, 
 when they were employed by an- 
 other, nor control the legal rela- 
 tions of the parties, unless it was 
 known to them and it can fairly be 
 presumed that they contracted in 
 reference to it. Latimer v. Alex- 
 ander, 14 Ga. 259. It is a general 
 
106 THE USAGES OF TKADE AND THEIK 
 
 Attempts to Limit Scope of Custom — Written Contract to 
 Speak. 
 
 Sec. 66. It is owing to the circumstances just alluded to 
 that we iind many attempts upon the part of judges to limit 
 the extent of the applicability of custom as a means of 
 explaining indefinite writings. We must consider these. 
 In the case of Hutton v. Warren,{z) the judges, although 
 they decided in accordance with the authorities cited, clearly 
 indicated that in their opinion the relaxation of the common 
 law in reference to this matter, where formal agreements had 
 been entered into, and especially instruments under seal, was 
 both unwise and unjust, (a) And Lord Denman, in deliv- 
 ering the opinion of the court in the case of Freeman v. 
 Loder,{b) said : " If a legislator were called to consider the 
 expediency of passing a law upon this subject, the conclusion 
 at which he would arrive is hardly open to a doubt. He 
 would decide at once that the written contract must speak 
 for itself on all occasions ; that nothing should be left to 
 memory or speculation. There is no inconvenience in requir- 
 ing parties making written contracts to write the whole of 
 their contracts, while, in mercantile affairs, no mischief can 
 be greater than the uncertainty produced by permitting ver- 
 bal statements to vary bargains committed to writing. 
 
 Dangers of Explanatory Evidence. 
 
 Sec. 67. The nature of this explanatory evidence renders 
 
 rule that a custom is without force, an equitable, unless it is also a com- 
 
 in opposition to n positive law. patent legal rule. , Morrison v. Hart, 
 
 Cramoell v. Fanny Fosdick, 15 La. 2 Bibb. (Ky.) 4. In a doubtful case, 
 
 Ann. 436. But under the laws of usage may be resorted to to ascer- 
 
 Mexico, custom may not only attain tain the meaning of the legislature, 
 
 the force of law, in the absence of Polk v. Hill, Overt (Tenn.) 157. 
 
 special provisions, but may limit and (2) 1 M. & W. 475 ; see also Ander- 
 
 qualify general legal rules, or even son v. Pitcher, 2 B. & P. 168, per Lord 
 
 overturn the positive written laiu. Von Eldon. 
 
 Schmidt v. Huntington, 1 Cal. 55. No [a) See Johnston Y.Usborne, 11 Ad. 
 
 usage which is disregarded in a court & El. 557. 
 
 of law will be regarded in a court of [b) 11 Ad. & El. 597, 598. 
 chancery, as it can have no force as 
 
ADMISSIBILITY AS EVIDENCE. ^ 107 
 
 it peculiarly dangerous. Those who have heard it must 
 have been struck with the hesitating strain in which it is 
 given by men of business, and their wish .to secure the cor- 
 rectness of their answer by referring to the written docu- 
 ments. Again, what can be more difficult than to ascertain, 
 as a matter of fact, such a prevalence of what is called a cus- 
 tom of trade as to justify a verdict that it forms part of every 
 contract ? Debate may also be fairly raised as to the right 
 of binding strangers by customs probably unknown to them ; 
 a conflict may exist between the customs of two different 
 places ; and supposing all these difficulties removed, and the 
 custom fully proved, still it will almost always remain doubt- 
 ful whether the parties to the individual contract really 
 meant that it should include the custom." And the same 
 opinions have been expressed by the late able and learned 
 Mr. Justice Story. (c) "I own myself," he said, "no friend 
 to the almost indiscriminate habit of late years of setting up 
 particular usages or customs in almost all kinds of business 
 and trade, to control, vary, or annul the general liabilities of 
 parties under the common law, as well as under the commer- 
 cial law. It has long appeared to me that there is no small 
 danger in admitting such loose and inconclusive usages and 
 customs often unknown to particular parties and always 
 liable to great misunderstandings and misrepresentations and 
 abuses to outweigh the well-known and well-selected princi- 
 ples of law. And I rejoice to find that of late years the 
 courts of law, both in England and in America, have been 
 disposed to narrow the limits of the operation of such usages 
 and customs, and to discountenance any further extension of 
 them.(rf) The true and appropriate office of a usage or cus- 
 tom is to interpret the otherwise indeterminate intentions of 
 parties, and to ascertain the nature and extent of their con- 
 tracts, arising not from express stipulations, but from mere 
 
 (c) The Schooner Reedde, 2 Sum. [d) See a.]&o Story, J., in Bonnell v. 
 
 (U. S.) 567. Columbia Ins. Co., 2 Sum. (U. S.) 367. 
 
108 THE USAGES OF TEADE AND THEIE 
 
 implications and presumptions, and acts of a doubtful or 
 equivocal character. It may also be admitted to ascertain 
 the true meaning of a particular word or particular words in 
 a given instrument, when the word or words have various 
 senses, some common, some qualified and some technical, 
 according to the subject-matter to which they are applied. 
 But I apprehend that it can never be proper to resort to any 
 usage or custom to control or vary the positive stipulations 
 in a written contract, and a fortiori not in order to contra- 
 dict them. An express contract of the parties is always 
 admissible to supersede or vary or control a usage or custom, 
 for the latter may always be waived at the will of the par- 
 ties. But a written and express contract cannot be con- 
 trolled or varied or contradicted by a usage or custom, for 
 that would be not only to admit parol evidence to control, 
 vary or contradict written contracts ; but it would be to 
 allow mere presumptions and implications properly arising 
 in the absence of any positive expressions of intention to 
 control, vary or contradict the most formal and deliberate 
 declarations of the parties." (e) As we shall see, however, 
 
 (e) When a contract is silent rela- and consequently affords no defence, 
 tive to certain matters in relation to Bliwm, v. New England Screw Co., 23 
 ■which a usage exists, and the usage How. (U. S.) 420; see also S. C, 4 
 is known to the parties, or is so uni- Bl. {U. S. C. C.) 97. Where shingles 
 form and notorious that the parties are sold by the thousand, evidence 
 may be presumed to have known of of a usage to regard two bundles of 
 its existence, it may be shown to a certain size as a thousand, is ad- 
 supply those matters. Thus, if a missible. Soulier v. Kellerman, 18 
 custom to fill orders pro rata, and in Mo. 509. So, too, it is competent to 
 the order in which they are received, show that by the usage of a certain 
 as fast as the articles can be manu- trade, where goods are not sold on a 
 factured, is well known to the vendee cash sale, they are purchased on a 
 from his previous dealings with the six months' credit. Famsworth v. 
 vendor, the contract will be pre- Chase, 19 N. H. 584. So, where an 
 sunied to embrace the custom, and advertisement is inserted in a uews- 
 the vendee cannot complain that the paper, and no time during which it 
 articles are not sooner delivered, shall be continued is named, the 
 But if such custom is not known to publisher of the paper may show a 
 the vendee, it cannot be regarded as custom of the trade to continue it 
 -forming any part of the contract until instructions are given to stop 
 
ADMISSIBILITY AS EVIDENCE. 
 
 109 
 
 there has, in more recent times than those to which Mr. Jus- 
 tice Story referred, been a tendency upon the part of judges 
 to extend the office of a usage, and while they have been as 
 unwilling to allow a usage' to rule express words, they have 
 allowed a usage to supply words and incidents to a written 
 contract which were not inconsistent with it. They, too, 
 looked to the intention of the parties, but they came to the 
 conclusion that the real drift of these intentions would be 
 better ascertained by a careful regard to the circumstances 
 of the individual at the time of the contract than from a 
 slavish regard only to the written words of the instrument. 
 The circumstances which it was of most importance to bear 
 in mind, as likely to affect the mental condition of the par- 
 ties to the instrument, were those common circumstances 
 which are classed under the head course of trade, and which 
 are embodied in what we call usage. It was from this view 
 that the recent extension of the functions of custom has taken 
 
 it. Thomas v. O'Hara, 1 Mill (S. C.) 
 Const. 303. But proof of a usage in 
 reference to matters about which the 
 contract is specific, and which are 
 repugnant thereto, is not admissi- 
 ble. Boardvian v. Spooner, 13 Allen 
 (Mass.) 353. Thus, where a stipula- 
 tion, that all claims for damages 
 must be made within three days, 
 was a part of a contract of sale, evi- 
 dence to prove that, according to 
 the custom of trade in Boston, goods 
 were returned by purchasers at auc- 
 tion, and received by the owners, 
 and an allowance made after the 
 expiration of three days, if within a 
 reasonable time after the sale, was 
 held inadmissible. Atkins v. Howe, 
 18 Pick. (Mass.) 16. So, too, it has 
 been held that evidence is inadmis- 
 sible to prove a usage in the port of 
 Boston, that when a cargo of corn is 
 sold in bulk, lying in the vessel in 
 which it is imported, and the sale is 
 
 made under a warranty, the pur- 
 chaser receives and retains so much 
 of the corn as answers the warranty, 
 and rejects the residue, which, upon 
 such rejection, becomes the prop- 
 erty of the seller. Clark v. Baker, 11 
 Met. (Mass.) 186. So, in an action 
 by the vendee of goods for damages 
 for their non-deliver}', under a con- 
 tract which stipulated that the ven- 
 dee was to advance the freight upon 
 them, evidence of. a general custom 
 on the subject of paying freight to 
 the carrier on the delivery of goods, 
 was held inadmissible because the 
 parties had made their own contract, 
 which was susceptible of easy ex- 
 planation, and needed no aid from 
 custom and could not be controlled 
 by it. Hartfe v. Collins, 46 Penn. St. 
 268 ; see also, on the general propo- 
 sition, Lombardo v. Case, 45 Barb. 
 (N. Y.) 95; Beals v. Terry, 2 Sandf. 
 (N. Y.) 127. 
 
110 
 
 THE USAGES OF TRADE AND THEIK 
 
 place. Bearing, then, these weighed and careful words in 
 mind, we proceed to the consideration of the law, as it has 
 been laid down in various cases, which is applicable to the 
 question. In this country, substantially the same rules pre- 
 vail as to the operation of usages, as in England, and it may 
 be stated, as a general rule, that a reasonable usage of any 
 trade or business known to the parties contracting in refer- 
 ence to matters to which it applies, or so well established 
 and so notorious that they ought to know of it, will control 
 their relations, unless excluded by the express terms of the 
 contract,^ or it overrides a well-settled rule of law.^ Thus, 
 it is competent to show a usage of a certain trade or business, 
 to add incidents to a contract in reference to matters about 
 
 ° Loring v. Gurney, 5 Pick. (Mass.) 
 15; Thompson v. Hamilton, 12 Id. 
 425; Parrott v. Thatcher, 9 Id. 430; 
 Lowry v. Russell, 8 Id. 360 ; Stearns 
 V. Re&ies, 9 Id. 198 ; Cook v. Welch, 9 
 Allen (Mass.) 350; Porter v. Hills, 
 114 Mass. 103 ; Berkshire Woolen Co. 
 V. Proctor, 7 Cush. (Mass.) 417; 
 Scudder v. Bradbury, 106 (Mass.) 
 422; Cooper v. Kane, 19 Wend. (N. 
 Y.) 386; Dalton v. Daniels, 2 Hilt. 
 (N. Y.) 472; Hartshome v. Ins. Co., 
 36 N. Y. 172 ; Farmers' Bank v. Erie 
 R. R. Co., 79 N. Y. 188 ; Whitehouse 
 V. Moore, 13 Abb. Pr. (N. Y.) 142; 
 Fox V. Parker, 42 Barb. (N. Y.) 541; 
 Miller v. Burke, 68 N. Y. 615 ; Bissell 
 V. Campbell, 54 N. Y. 53 ; Aralls v. 
 Bailey, 49 N. Y. 464 ; Eyre v. Marine 
 Ins. Co., 5 W. & S. (Penn.) 115; Mc- 
 Masters v. Pennsylvania R. R. Co., 69 
 Penn. St. 374; Carter v. Philadelphia 
 Coal Co., 77 Id. 286 ; Coxe v. Heisley, 
 19 Id. 243 ; Aughinbaugh v. Coppen- 
 heffer, 55 Id. 347 ; Steward v. Scudder, 
 24 N. J. L. 96 ; Schenok v. Griffen, 39 
 N. J. L. 463 ; Barton v. MoKelway, 22 
 N. J. L. 165 ; Leach v. Beardslee, 22 
 Conn. 404; Dixon v. Dunham, 14 111. 
 
 324; Consequa v. Willings, Pet. (U. S. 
 C. C.) 225 ; Baxter v. Leland. 1 Blatch. 
 (U. S. C. C.) 526; Sunday \. Gordon, 
 1 Bl. & H. (U. S.) 569; Wilcocks v. 
 Phillips, 1 Wall. Jr. (U. S. C. C.) 63; 
 Bispham v. Pollock, 1 McLean. (U. S.) 
 411 ; Brown v. Jackson, 2 Wash. (U. 
 S. C. C.) 24; Union Bank v. Forrest, 
 3 Cranch (U. S. C. C.) 218; McGregor 
 V. Ins. Co.. 1 Wash. (U. S. C. C.) 
 89; The Reeside, 2 Sum. (U. S.) 567; 
 Cooke V. England, 27 Md. 141 ; Foster 
 V. Robinson, 6 Ohio St. 90 ; Conner v. 
 Robinson, 2 Hill. (S. C.) 354; Hum- 
 phreysville &o. Co. v. Vermont &c. Co., 
 33 Vt. 92 ; Pursell v. McQueen, 9 Ala. 
 380; Bodfish v. Fox, 23 Me. 90; Hen- 
 kel V. Welsh, 41 Mich. 664; Bancroft 
 V. Peters, 4 Mich. 619 ; Bush v. Pol- 
 lock, 41 Mich. 64 ; Sumner v. Tyson, 20 
 N. H. 384 ; Lebanon v. ifeaiA, 47 N. H. 
 353 ; Farnsworth v. Chase, 19 Jd. 534 ; 
 Soulier v. Kellerman, 18 Mo. 509. 
 
 * Dickinson v. Gay, 7 Allen (Mass.) 
 9 ; Haskins v. T-Karren, 115 Mass. 514 ; 
 Barnard v. Kellogg, 10 Wall. (U. S.) 
 383 ; Bank of Commerce v. Bissell, 72 
 N. Y. 615 ; Farmers' Bank v. Logan, 
 74 7d. 568. 
 
ADMISSIBILITY AS EVIDENCE." Ill 
 
 wliicli the contract itself is silent. Thus, where there was a 
 written contract for a certain number of " barrels " of petro- 
 leum, at so much a gallon, it was held competent to show 
 that, by the usages of the petroleum trade, the word " bar- 
 rel " meant a vessel of a certain capacity, and not the statu- 
 tory measure of quantity.'^ So where there was a written 
 contract for the delivery of "a cargo of coal, water nine 
 and one-half feet," and there was nothing said as to the 
 quantity, evidence was admitted to show what number of 
 tons usually constituted the cargo of a vessel drawing that 
 depth of water.* In another Massachusetts case,'* where 
 there was a written contract for the manufacture and deliv- 
 ery of " horn chains," parol evidence was held admissible to 
 show that chains made of horns and hoofs were intended by 
 the parties, such chains being known in the market as " horn 
 chains." Perhaps the most apt illustration of this rule may 
 be found in a later Massachusetts case,^ in which the defend- 
 ant, by a written instrument, conveyed to the plaintiff a milk 
 route in Boston, "with all the rights and privileges thereto 
 belonging." There was also a clause as follows : "Also the 
 right and good will of supplying twenty-six full eight-quart 
 cans of custom, situated as above." In an action upon this 
 contract, evidence of experts in the trade was held admissible 
 to show that milk trade is bought and sold by the can, and 
 that the right and good will of supplying customers has a 
 known and recognized value in the market, and is worth 
 eighty dollars a can ; also that there was a uniform usage in 
 the trade for the person, the right and good will of supply- 
 ing custom, to furnish to the purchaser, customers whose 
 average daily purchases amount to the number of cans sold ; 
 and that in the milk trade, the terms " right and good will 
 of supplying custom," mean, when applied to sales of the 
 trade, the right of supplying milk to the customers furnished 
 
 ■'Miller v. Stevens, 100 Mass. 518; (Mass.) 130. 
 Keller v. Webh, 125 Mass. 88. " Swett v. Shumway, 102 Mass. 365. 
 
 « Rhoades v. Castner, 12 Allen ^ Page v. Cole, 120 Mass. 37. 
 
112 
 
 THE USAGES OF TKADE AND THEIE 
 
 and pointed out by the vendor, from those accustomed to buy 
 milk of him. The instances in which incidents have been 
 annexed to contracts by usage are numerous, and many of 
 them are referred to in other parts of this work.^ It is a 
 rule, however, that the incident so to be incorporated, must 
 not conflict with the express terms of the contract to which 
 they are to be annexed.^ 
 
 ^ See illustrating the rule, Eldridge 
 V. Smith, 13 Allen (Mass.) 140; Ash- 
 well V. Radford, L. R. 9 C. P. 20; 
 Bond V. Coke. 71 IST. C. 97 ; Allen v. 
 Pink, 4 M. & W. 140 ; Humfrey v. 
 Dole, 7 E. & B. 266 ; Southwell v. Bow- 
 ditch, L. K. 1 C. P. 106; Adams v. 
 Morse, 51 Me. 499 ; Syers v. Jonas, 2 
 Exch. Ill ; Field v. Lelean, 6 H. & 
 N. 617 ; Allan v. Sundias, 1 H. & C. 
 123 ; Baker v. Jordan, 3 Ohio St. 438 ; 
 Renner v. Bank, 9 Wheat. (U. S.) 581 ; 
 Backenstoss v. Stahler, 33 Penn. St. 
 231; Gadtsv. Rose,17 C.B.209; Fleet 
 V. Murton, L. R. 7 Q. B. 126 ; Smart 
 V. Hyde, 8 M. & W. 723 ; Lucas v. 
 Bristow, E. B. & E. 907 ; Bryewater v. 
 Richardson, 3 N. & M. 748; Foster 
 V. Ins. Co., 2 E. & B. 48; Parker v. 
 Ibbetson, 4 C. B. N. S. 348 ; Hutchin- 
 son V. Tatham, L. B. 8 C. P. 482 ; Reg. 
 V. Stoke-Upon-Trent. 5 Q. B. 303. 
 
 ^ Bond V. Coke, ante; Brown v. 
 Thurston, 56 Me. 127 ; Ring v. Billings, 
 51 111. 475 ; Central R. R. Co. v. Ander- 
 son, 58 Ga. 393 ; Wickersham y. Orr, 
 9 Iowa 253 ; Evans v. Wain, 71 Penn. 
 St. 69 ; Austin v. Sawyer, 9 Cow. (N. 
 Y.) 40; Haskins v. Warren, 115 Mass. 
 514; Brown v. Foster, 113 Id. 136; 
 Macomber v. Parker, 13 Pick. (Mass.) 
 175; Odiorne v. New England Ins. 
 Co., 101 Mass. 551. In Randall v. 
 Ratch, 12 Pick. (Mass.) 107, it was 
 held that evidence of a custom for 
 a master cooper to send his appren- 
 tice on a whaling voyage, was not 
 
 admissible, because it was directly- 
 repugnant to the object and terms 
 of the contract. In Bavis v. Gallou-pe, 
 111 Mass. 121, the plaintiffs, wha 
 were stone cutters, entered into a 
 written contract to furnish the de- 
 fendant stone for a building, accord- 
 ing to certain plans and specifica- 
 tions of an architect, and to do all 
 the fitting and rebating necessary. 
 In an action to recover for the pat- 
 terns, it was held that evidence of a 
 usage for stone cutters, in cutting 
 stone for a building, to procure such 
 patterns and recover the cost from 
 the owner of the building, was not 
 admissible; and generally it may be 
 said that evidence of a usage is not 
 admissible either to add to or detract 
 from a contract when it conflicts 
 with the express provisions thereof. 
 Snelling v. Hall, 107 Mass. 134 ; Board- 
 man V. Spooner, 13 Allen (Mass.) 359 ; 
 Whitmore v. South Boston Iron Co., 
 2 Allen (Mass.) 52; Eagar v. Atlas 
 Ins. Co., 14 Pick. (Mass.) 141 ; Atkins 
 V. Howe, 18 Id. 16; Macomber v. 
 Howard Ins. Co., 7 Gray (Mass.) 207 ; 
 Stebbins v. Brown, 65 Barb. (N. Y.) 
 274; Beats v. Terry, 2 Sandf. (N. Y.) 
 127; Holmes v. Pettingill, 60 N. Y. 
 646; Lombardo v. Case, 45 Barb. (N. 
 Y.) 45; Lane v. Bailey, 47 Id. 395; 
 Spear v. Hart, 3 Robt. (N. Y.) 420; 
 People's Bank v. Bogart, 16 Hun. (N. 
 Y.) 270; Van Alstyne v. jEtna Ins. 
 Co., 14 Id. 360 ; Lawrence v. Gallagher, 
 
ADMISSIBILITY AS EVIDENCE. 
 
 113 
 
 Evidence of Usage Indispensable, Where. 
 
 Sec. 68. Evidence of the usage of a trade, business or 
 individual, is admissible to ascertain and carry into effect 
 the real intention of the parties, because where such 
 usage is established, of a character so general or noto- 
 rious that a presumption of its knowledge by the parties 
 can be raised, it is reasonable to presume that they con- 
 tracted in reference to and in reliance upon it, or they 
 would have excluded it in their contract, and, therefore, 
 in the case of a usage known to the parties, or which is 
 so general, uniform and unvarying as to warrant a pre- 
 sumption of its knowledge by them, forms a part of the 
 contract, as much as though it had been expressly written 
 
 10 J. & S. (N. Y.) 309; Farmers' &o. 
 Bank v. Logan, 74 N. Y. 568 ; Bank 
 of Coinmerce v. Bissell, 72 Id. 615 
 Rapp V. Palmer, 3 Watts (Penn.) 178 
 Harfje v. CoUins, 46 Penn. St. 268 
 Harvey v. Cady, 3 Mich. 431 ; Spears 
 V. Ward, 48 Ind. 546 ; Cabot v. Winsor, 
 1 Allen (Mass.) 546 ; Sanford v. Rawl- 
 ings, 43 111. 92; Luce v. Ins. Co., 105 
 Mass. 297; Marc v. Kupfer, 34 111. 
 287 ; Ins. Co. v. Wright, 1 Wall. {U. S.) 
 456; Marks v. Cass Co. Mill, 43 la. 
 146 ; Mangam v. Ball, 43 Miss. 288 ; 
 Merchants' Bank v. State Bank, 10 
 Wall. (U. S.) 604; Osgood v. McCon- 
 nell, 32 111. 74 ; Bodd v. Farlow, 11 
 Allen (Mass.) 476 ; Moran v. Prather, 
 23 Wall. (U. S.) 499; Willmering v. 
 McGaughey, 80 la. 205; Sawtelle v. 
 Brew, 122 Mass. 228 ; Schenck v. Qrif- 
 fin, 38 N. J. L. 462 ; Stanton v. Jerome, 
 54 N. Y. 480 ; Hackin v. Cooke, 4 T. E. 
 314; Muncey v. Bennis, 1 H. & N". 
 216 ; Suse v. Pompe, 8 C. B. N. S. 538 ; 
 Glendale Woolen Co. v. Ins. Co., 21 
 Conn. 19; The Schooner Reeside, 2 
 Sum. (r. S.) 567 ; Barnard v. Kellogg, 
 10 Wall. (U. S.) 383. In the latter 
 case, Bavis, J., said: "The proper 
 
 office of a custom or usage in trade 
 is to ascertain and explain the mean- 
 ing and intention of the parties to a 
 contract, whether written or in parol, 
 which could not be done without the 
 aid of this extrinsic evidence. It 
 does not go beyond this, and is used 
 as a mode of interpretation, on the 
 theory that the parties knew of its 
 existence and contracted in refer- 
 ence to it. It is often employed to 
 explain words or phrases in a con- 
 tract of doubtful signification, or 
 which may be understood in differ- 
 ent senses according to the subject- 
 matter to which they are applied. 
 But if it be inconsistent with the con- 
 tract, or expressly or by necessary im- 
 plication contradicts it, it cannot be 
 received in evidence to explain it."' 
 Thompson v. Ashton, 14 John. (N.. 
 Y.) 417; Bickinson v. Gay, 7 Allen 
 (Mass.) 29; Frith v. Barker, 2 John. 
 (N. Y.) 327; Simmons v. Law, 3 
 Keyes (N. Y.) 219; Coxe v. Heisley,. 
 
 19 Penn. St. 243 ; Wetherell v. Neilson,. 
 
 20 Id. 448 ; Robinson v. United States,. 
 13 Wall. (U. S.) 365. 
 
114 THE USAGES OF TEADE AND THEIE 
 
 therein.^ The maxim, "in contractibus tacite veniunt ea 
 quae sunt moris it consuetudinis," has full application in 
 such cases. " Experience and observation," says Storrs, J., 
 in a case previously cited,* "prove that the engagements 
 of individuals are in fact entered into with reference to 
 the customs and usages which prevail in the community 
 where they are made; they, therefore, tacitly agree to 
 conform to them, and so far from doing injustice, by 
 regarding such customs and usages, it is the only mode 
 by which justice can be attained. The presumption is, 
 indeed, that those who enter into contracts intend to be gov- 
 erned by the general principles of law. It is, however, 
 competent for them to renounce these principles when pub- 
 lic policy does not forbid, and to adopt another rule of 
 action ; and the prevalence of a particular local usage on 
 the subject, variant from those general rules, in the absence 
 of evidence to resist it, affords a rational ground of inference 
 that they intended to do so." But, in order to have this 
 effect, it must either be known to the parties or be suffi- 
 ciently ancient to warrant the presumption that it is gener- 
 ally known, and also certain, uniform and reasonable.^ It 
 
 ^ Sipperley v. Stewcwd, 50 Barb. (N. (Md.) 239; Barber v. Bruce, 3 Conn. 
 Y.) 62; Wheeler v. Newbold, 5 Duer 9; Coit v. Commercial Ins. Co., 7 
 (N. Y. Superior Court) 29; Buguid John. (N. Y.) 385; Parr y. Anderson, 
 
 6 East. 202; Vallance v. Bemar, 1 
 Camp. 503 ; Lethulier's case, 2 Salk. 
 443; HalseyY. Brown, 3 Day (Conn.) 
 346; Noble v. Kennoway, 1 Doug. 510; 
 Palmer v. Kane, 5 Wis. 265 ; Munn v. 
 Burch, 25 111. 35. 
 
 * Kilgore v. Bullcley, 14 Conn. 390. 
 o Shackelford v. N. 0. P. P. Co., 37 
 Miss. 202; Smith v. Gibbs, 44 N. H. 
 335; Collings v. Hope, 3 Wash. (Va.; 
 
 V. Edwards, 50 Barb. (N. Y.) 288 
 
 Martin v. Maynard, 16 N. H. 165 
 
 Stultz V. Dickey, 5 Binn. (Penn.) 287 
 
 Hursh V. North, 40 Penn. St. 241 
 
 Haven v. Wentworth, 2 N. H. 93 
 
 Wood V. Hicock, 2 Wend. (N. Y.) 501 
 
 Kenda.ll v. Russell, 5 Dana (Ky.) 501 
 
 Stevens v. Reeves, 9 Pick. (Mass.) 198 
 
 Inglebright v. Hammond, 19 Ohio 337 
 
 Ladwick v. Ohio Ins. Co., 5 Id. 436 
 
 Sampson v. Gazzam, 6 Port. (Ala.) 150 ; Register v. Spencer, 24 Md. 520 ; 
 
 123; Sewall v. Gihbs, 1 Hall (N. Y. Papp v. PaZmer, 3 Watts (Penn.) 178; 
 
 Superior Court) 612 ; United States v. Foley v. Mason, 6 Md. 37 ; Thomas v. 
 
 Arredondo, 6 Pet. (U. S.)715; Bank Graves, 1 Mill (S. C.) Court 308; 
 
 of Columbia v. Fitzhugh, 1 H. & G. Harper v. Pound, 10 Ind. 32; Chas- 
 
ADMISSIBILITY AS EVIDENCE. 115 
 
 must be so well established in the particular locality, trade, 
 profession or business to which it relates, that it must be 
 presumed that men transacting the business, &c., know of, 
 and contract in reference to it.' General or local customs 
 become laws, from immemorial and universal application and 
 acquiescence either in a particular locality affected, or in the 
 entire community to be affected by it.'' 
 
 "Why Parol Evidence is Admitted — Law and Evidence— Evi- 
 dence the Foundation of Law. 
 
 Sec. 69. We must bear in mind that the admission of 
 parol evidence of usage is allowed on a principle of presump- 
 tion that in many transactions the parties thought it unneces- 
 sary to express in writing the whole of the contract they 
 were entering into, but to contract with reference to those 
 known usages, (/) just as there is an implication that they 
 contracted with a reference to ascertained physical laws. 
 But these usages of trade with reference to which their con- 
 tract was framed must be understood as something different 
 from the general custom of merchants, which in so far as it 
 is ascertained and recognized is the universal established law 
 of the land, which is, as we have already seen,(^) to be col- 
 lected from decisions, legal principles and analogies, and not 
 from evidence. In all cases laws were matters of evidence 
 once upon a time, but when they were proved, ascertained 
 and acknowledged, they became not matters provable by new 
 
 tain V. Bowman, 1 Hill (S. C.) 270; ^ Foye v. Leighton, 22 N. H. 71; 
 
 Somerby v. Tampan, Wright (Ohio) Saint v. Smith,! Colclw. (Tenn.) 51; 
 
 573; Trott v. Wood, 1 Gall. (U. S.) Walker v. Barron, 6 Mum. 508; Mar- 
 
 443 ; Buck v. Grimshaw, 1 Edw. Ch. tin v. Hall, 26 Mo. 386. 
 (N. Y.) 147. '^ Com v. ilaloy, 57 Peiin. St. 591. 
 
 (/) Kirchner v. Venus, 12 Moore P. 538, at p. 567 ; but see Haille v. Smith, 
 
 C. 0. 361. 1 B. & P. 563, in which evidence of 
 
 [g) Per Foster, J., Edie v. East the general custom of merchants 
 
 India Co., 1 Wm. Black, at p. 298 ; was received, and Vallejio v. Wheeler, 
 
 per Lord Campbell, in Brandao v. Lofft. 631, at p. 644; see also per 
 
 Bamett, 3 0. B. 519, at p. 530 ; per Nelson, J., in Alle^i v. The Merchants' 
 
 Byles, J., Suse v. Pomp, 8 0. B. N. S. Bank, 15 Wend. (N. Y.) 215. 
 
116 THE USAGES OF TEADE AND THEIR 
 
 evidence, but matters evidenced by past records, and these 
 records resided, for the most part, in the breasts of the 
 judges. The right understanding of the real relation of law 
 and evidence seems to us to be a matter of some importance. 
 Evidence deals with facts, law with human principles as 
 applicable to facts. But rough doing went before rules. 
 Practice has always preceded theory, and in some historical 
 senses evidence must be regarded as the foundation of law. 
 The analogy of language which is closely connected with 
 law — which might well be regarded as the grammar of con- 
 duct — will help us to understand this connection. It has 
 been pointed out that men used to think of substantives in 
 action before they reached the abstract conception of a verb ; 
 and that such phrases, in the mouths of the vulgar, as 
 " a-going " and " a-coming," at the present time, are indica- 
 tive of the early use of nouns in the place of verbs. There 
 is an abstractness in expression of action or passion which 
 was only possible to a stage of considerable mental develop- 
 ment. But to us there seems to be a close analogy between 
 this relation of nouns and verbs which Hegel has expressed 
 by saying, " It is in names that we think," and the relation 
 which exists between evidence and law. The province of 
 the one is, as it were, substantives of the other verbs. The 
 province of the one is concrete experiences, of the other 
 abstract generalizations and commands. But, further, we 
 would be inclined to think that just as verbs were at first 
 nothing but modified substantives — or substantives becoming 
 abstract — so laws were at first only evidence modified or 
 becoming abstract. Hence it is that in our estimation cus- 
 tom or usage is the connecting link between law and evi- 
 dence ; hence, also, its importance, not only to the lawyer, 
 but to the scientific jurist. 
 
 Usage of Trade and Custom of Merchants to be Distinguished. 
 
 Sec. 70. Usages of trade, then, in the sense in which it is 
 
 ordinarily used, are to be discriminated from the general 
 
ADMISSIBILITY AS EVIDENCE. 117 
 
 custom of merchants, although in one way they may be 
 regarded as the' general custom of merchants in the making. 
 This being so, it is not extraordinary that this distinction 
 has not always been so clearly understood as it is at the 
 present time, and that we find a learned judge in the year 
 1787 using these words. "Within the last thirty years," 
 Mr. Justice BuUer remarked, (A) "the commercial law of the 
 country has taken a very different turn from what it did 
 before. Before that period we find that, in courts of law, all 
 the evidence in mercantile cases was thrown together ; they 
 were left generally to. a jury, and produced no established 
 principle. From that time we all know the great study has 
 been to find some certain general principles which shall be 
 known to all mankind, not only to rule, the particular case 
 then under consideration, but to serve as a guide for the 
 future." 
 
 Particular General Customs. 
 
 Sec. 71. But the distinction which is to be drawn at the 
 present time is clearly between general usages or customs 
 which are laws, and particular usages or customs which are 
 matters of evidence. When, however, they are proved, they 
 engraft terms into a contract in much the same way that a 
 general custom or law would. 
 
 Method of Proof. 
 
 Sec. 72. First, then, as to the principle of admissibility, 
 and the method of proof, {i) Seeing that custom is only to be 
 
 (A) 2 T. R. p. 73. v.SicHes,17Ark.428; Smith v. Floyd, 
 
 (i) Mackensie v. Dunlop, 3 Macq. 18 Barb. (N. Y.) 392; Knowles v. 
 
 H. of L. Cas. 22 ; see also Kidson v. Bow, 22 N. H. 387 ; Chesapeake Bank 
 
 Empire Marine Co., 35 L. J. C. P. v. Swain, 29 Md. 483; Mackenzie v. 
 
 250; see also Myers \\ Dresser, 1& C. Dunlop, 3 Macq. H. L. Cas. 22; 
 
 B. N. S. 646. Mercantile usage must Walker v. Barron, 6 Minn. 50S; Saint 
 
 be proved by the multiplication or v. Smith, 1 Coldw. (Term.) 51 ; Foye 
 
 aggregation of a great number of v. Leiyhton, 22 N. H. 71. In other 
 
 instances, showing a certain course words the rule is, that a usage, in 
 
 of business and a general established order to become a part of a contract 
 
 understanding respecting it. Burr must he so far established and so far 
 
118 
 
 THE USAGES OP TEADE AND THEIE 
 
 inferred from a large number of individual acts, it is evident 
 that the only proof of the existence of a usage must be by 
 
 knoion to the parties that it must be 
 supposed that their contract was 
 made in reference to it. For this 
 purpose the custom must be estab- 
 lished and not casual, uniform and not 
 varying, general and not personal, and. 
 known to the parties. Wheeler v. 
 Newbould, 5 Duer (N. Y.) 29; Sipper- 
 ley V. Steward, 50 Barb. (N. Y.) 62; 
 Martin v. Maynard, 16 N. H. 165; 
 Duguid v. Edwards, 50 Barb. (N. Y.) 
 288; TFboci V. ffioocyfc, 2 Wend. (N.Y.) 
 501 ; Kendall v. Russell, 5 Dana (Ky.) 
 501 ; Stevens v. Reeves, 9 Pick. (Mass.) 
 198; Walt v. Hock, 25 Penn. St. 411; 
 Hursh V. North, 40 Id. 241 ; Sampson 
 V. Gazzam, 6 Port. (Ala.) 123; Haven 
 V. Wentworth, 2 N. H. 93 ; Gallup v. 
 Lederer, 1 Hun. (IST. Y.) 282; Milk v. 
 Hallock, 2 Edw. Ch. (N. Y.) 6^2. 
 Where a custom or usage was set up 
 that a class of mercantile houses in 
 the same line of trade in New York, 
 generally known as " six months' 
 houses," by their general and uni- 
 form course of business, on a bill of 
 goods containing a memorandum 
 " six per cent, off for cash,'' would 
 understand a sale on six months' 
 credit, without any express agree- 
 ment; it was held, that in order to 
 discharge the office of exposition, 
 and be admissible in evidence, it 
 must be found to be the general 
 usage of the whole of that class of 
 houses in the city of New York, and 
 so well established and uniformly 
 acquiesced in, and for such a length 
 of time, that the jury might fairly 
 infer that it was known to the con- 
 tracting parties, and made by impli- 
 cation a part of their contract. If 
 such usage is not proved, it should 
 be laid out of the case ; and an offer 
 
 of evidence of anything less should 
 be excluded. Linsley v. Lovely, 26 
 Vt. 123. But in order to establish it 
 neither antiquity nor that general 
 notoriety essential to establish a cus- 
 tom need be shown. It is sufficient 
 if it is shown to be so well known 
 and acquiesced in that it may be 
 reasonably presumed to have been 
 an ingredient imported into the con- 
 tract by the parties. Shackelford v. 
 New Orleans R. R. Co., 37 Miss. 202; 
 Harper v. Pound, 10 Ind. 32 ; Buck 
 v. Grimshaw, 1 Edw. Ch. (N. Y.) 147; 
 Chastain v. Bowman, 1 Hill (S. C.) 
 276 ; Collings v. Hope, 3 Wash. (Va.) 
 150; Juggomohun Ghore v. Manick- 
 ehund, 7 Moore Ind. App. 263 ; Smith 
 v. G2:&6s, 44 N. H. 335 ; Rapp v. Palmer, 
 3 Watts (Penn.)178; Lewis v. Thatcher, 
 15 Mass. 433, and this is tlie case 
 only when the usage is certain, rea- 
 sonable and universally acquiesced 
 in, so that every one engaged in the 
 trade knows, or might have known 
 of it, if he had taken the trouble to 
 inquire. Plain v. Allcock, 4 F. & F. 
 1074. If it is sought to establish a 
 usage of a trade to control the mean- 
 ing of words, it must be shown that 
 the words are used in that trade and 
 are understood in a defined sense, 
 and a mere habit of affixing a special 
 meaning to words when used in one 
 class of contracts does not amount 
 to such a usage as will justify the 
 presumption that they were used in 
 that 'sense in the contract in ques- 
 tion. The proof must go further, 
 and show facts tliat lead to a convic- 
 tion that they were used in that case 
 in such sense. Abbott v. Bates, 43 
 L. J. C. P. 150; Eaton v. Smith, 20 
 Pick. (Mass.) 150 ; Steward v.Scudder, 
 
ADMISSIBILITY AS EVIDENCE. 
 
 119 
 
 the multiplication or aggregation of a great nunjber of par- 
 ticular instances, but these instances must not be miscellane- 
 ous in character, but must have a principle of unity running 
 through their variety, and that unity must show a certain 
 course of business, and an established understanding respect- 
 ing it. A usage of trade is a matter of fact, and must be 
 proved like any other fact, and cannot be established by the 
 mere opinion of witnesses. It may be proved by witnesses 
 testifying to its existence and uniformity from their knowl- 
 edge of it obtained by observation of what is practiced by 
 themselves and others in the trade to which it relates, but 
 the opinions of witnesses or their conclusions or inferences 
 as to its effect, either upon the contract or the legal title or 
 rights of parties, are not competent to show the force of such 
 usage or its character.^ As a general rule, one witness is 
 not sufficient to establish a general usage.^ But the question 
 as to whether the evidence of one witness is sufficient or not, 
 
 24 N. J. L. 96. The testimony of a 
 single witness is not generally suffi- 
 cient to establish a usage of trade of 
 which all are bound to take notice. 
 Wood V. Hicoch, 2 Wend. (N. Y.) 501 ; 
 but if the witness discloses such 
 familiarity with the trade as to sat- 
 isfy the jury the evidence may be 
 sufficient. Robinson v. United States, 
 13 Wall. (U. S.) 366; Partridge v. 
 Forsyth, 29 Ala. 200 ; Vail v. Rice, 5 
 N. Y. 155. Nor is the custom of a 
 particular house, of itself, sufficient 
 proof of a general usage. Weber v. 
 Kingsland, 8 Bos. (N. Y.) 415. In 
 Smiith V. Floyd, 18 Barb. (N. Y.) 523, 
 it was held that the evidence to 
 establish a customary right should 
 not be less than that required to 
 establish a prescriptive right. In 
 
 « Haskins v. Warren, 115 Mass. 514 ; 
 Garey v. Meaghar, 33 Ala. 630 ; Chesa- 
 peake Bank v. Swain, 29 Md. 483. 
 
 ' Halverson v. Cole, 1 Spears (S. C.) 
 
 Jeioell V. Carter, 25 Ala. 498, , it was 
 held that where there is conflicting 
 evidence, the question as to whether 
 or not a usage is established should 
 be left to the jury, and that where 
 there is the evidence of only one 
 witness thereto, the court should tell 
 the jury that there is no evidence of 
 a usage before them. See also Board- 
 man V. Spoonw, 13 Allen (Mass.) 359. 
 But this is not the rule now gener- 
 ally recognized, and if a witness tes- 
 tifies fully and explicitly to the 
 existence of a usage and his testi- 
 mony is not contradicted, it cannot 
 be assumed as a legal conclusion 
 that the proof is insufficient. Mar- 
 ston V. Mobile Bank, 10 Ala. 284 ; Rob- 
 inson V. United States, 13 Wall. (U.S.) 
 366. 
 
 321 ; Thomas v. Graves, 1 Mill (S. C.) 
 Const. 309; Bissell v. Ryan, 23 111. 
 566; Wood v. lZ"ic/fco/c, 2 Wend. (N.Y.) 
 501 ; Halls v. Hoioell, Harp. (S. 0.) 427. 
 
120 
 
 THE USAGES OF TRADE AND THEIE 
 
 must be determined from the witnesses' means of informa- 
 tion and acquaintance with the business/ While, as pre- 
 viously stated, usage cannot be established by the mere 
 opinions of witnesses, yet, if the witness has derived all his 
 knowledge of the usage from his own business, and it is 
 shown to be sufficiently extensive and long continued to 
 warrant the presumption that his knowledge in that respect 
 is general, he may state his belief as to what such custom or 
 usage is.^ A usage must be proved by evidence of facts and 
 instances in which it has been acted upon,^ and in a case 
 
 ^ Hamilion v. Niakerson, 13 Allen 
 (Mass.) 351; Vail v. Rice, 5 N. Y. 
 155; Partridge v. Forsyth, 29 Ala. 
 200; Robinson v. United States, 13 
 Wall. (U. S.) 365. 
 
 ^ Hamilton v. Nickerson, 13 Allen 
 (Mass.) 351. Proof that in one in- 
 stance the use by a son of his father's 
 name, upon negotiable paper dis- 
 counted at a bank, was known and 
 acquiesced in by the father, does not 
 authorize the introduction in evi- 
 dence of subsequent similar acts, for 
 the purpose of showing an implied 
 authority in the son to sign his 
 father's name, without proof that 
 these also were known and acqui- 
 esced in by him, Greenfield Bank v. 
 Crafts, 2 Allen (Mass.) 269. Evidence 
 ■of a custom of manufacturers of iron 
 castings to warrant the quality of 
 the articles made by them, without 
 an express contract to that effect, is 
 admissible in an action founded on 
 such supposed warranty. Evidence 
 that such was the custom at three 
 different establishments, without 
 proof that a contrary usage obtained 
 at others in the vicinity, is sufficient 
 to authorize the jury to find such to 
 be the general custom. Sumner v. 
 Tyson, 20 N. H. 384. To prove a 
 custom for all the inhabitants of 
 
 Hampton to deposit sea-weed upon 
 the close of the plaintiffs, the de- 
 fendant offered evidence that thirty 
 of the inhabitants had done so for 
 many years. Held, that this was 
 competent evidence to be submitted 
 to the jury to prove the custom. A 
 plea alleged a custom in the inhabi- 
 tants of Hampton to haul sea-weed 
 upon the plaintiff's close. The evi- 
 dence was, that only those inhabi- 
 tants of Hampton exercised the 
 right who lived at a convenient dis- 
 tance from the sea-shore. Held, 
 that this was competent evidence of 
 the custom. Knowles v. Dow, 22 N. 
 H. 71. 
 
 ' Mills V. HaUock, 4 Edw. Ch. (N. 
 Y.) 652. A usage governing a ques- 
 tion of legal right cannot be proved 
 by isolated instances, but should be 
 so certain, uniform and notorious, 
 that it must probably have been 
 understood by the parties as enter- 
 ing into the contract. Cope v. Dodd, 
 13 Penn. St. 33; The Paragon, 1 
 Ware (U. S.) 322; Desha v. Holland, 
 12 Ala. 513. Where the fact is ma- 
 terial that a purchaser of land has 
 actual knowledge of a right of way 
 over the same, evidence that the 
 way was used for many years, and 
 that the purchaser lived all the tinie 
 
ADMISSIBILITY AS EVIDENCE. 
 
 121 
 
 where the questiou was whether a certain practice had heea 
 tolerated to a certain extent at a custom house, the party 
 
 in the same immediate neighbor- 
 hood, is properly submitted to the 
 jury. Wissler v. Hershey, 23 Penn. 
 St. 333. The fact that it is shown 
 that a certain method of doing busi- 
 ness is "very common," does not 
 establish a usage. Anstill v. Oraw- 
 ford, 7 Ala. 335. To establish a ship- 
 ping usage on a certain river, the 
 witness may state his habit and cus- 
 tom in shipping on all boats on the 
 river. Berry v. Cooper, 28 Ga. 543. 
 Proof of the usage of the clerks of 
 steamboats, to receive and carry 
 packages from one port to another, 
 without hire, in the expectation that 
 such boat would be preferred by the 
 parties in their shipments of freight, 
 is insufficient to bind tlie owners; 
 first, because no certain or fixed 
 standard,of remuneration is shown, 
 nor that the consignee of the pack- 
 age would be liable to make any 
 return for the risk and labor in- 
 curred; and, second, because it is 
 not shown that such usage had 
 grown up with the consent 'of the 
 owners of vessels, or that it was 
 more than a mere accommodation 
 usage. Cincinnati ikc. Co. v. Boal, 15 
 Ind. 345. Where the plaintiff relied 
 upon a parol acceptance of a bill of 
 exchange, evidence of a custom of 
 the defendants to accept always in 
 writing and make corresponding 
 entries on their books, was held 
 competent as tending to show in 
 this case that the bill had not been 
 accepted. Smith v. Clark, 12 la. 32. 
 Where there is proof of an agreed 
 price or compensation, or of a usage 
 which might affect it, or from which 
 an agreement might be inferred, it 
 would not be correct to authorize 
 
 them to .judge of the reasonableness 
 of the charges, irrespective of such 
 agreement or usage ; but the court 
 should determine whether, if proved 
 to the satisfaction of the jury, the 
 usage is reasonable or operative. 
 Codman v. Armstrong, 28 Me. 91. 
 The mere opinions of witnesses is 
 not evidence of a usage. Garey v. 
 Meagher, 33 Ala. 630. That a rail- 
 road company had been for about a 
 month in the habit of storing cotton 
 consigned to their agent, at the 
 wareliouse of A., witliout any proof 
 that this was generally known, or 
 any other evidence that the shipper 
 had notice of it, is not sufficient to 
 bind him. Alabama &o. R. R. Co. v. 
 Kidd, 35 Ala. 209. An isolated in- 
 stance is not sufficient to prove a 
 custom, nor will evidence of the 
 custom of one person be sufficient 
 to establish a general course of trade. 
 Burr V. Sickles, 17 Ark. 428. When 
 a special custom at the place of 
 shipment is proved, and the ques- 
 tion is whether the purchaser had 
 knowledge of the special custom, 
 and contracted in reference to it, the 
 previous course of dealing between- 
 the same parties — such as the order, 
 shipment and receipt of several in- 
 voices of goods, without any charge 
 for insurance — is sufficient evidence 
 from which the jury may infer 
 knowledge of the special custom. 
 Walsh V. Frank, 19 Ark. 270. Evi- 
 dence that " there has always been a 
 custom at a certain saw-mill and 
 other mills in the neighborhood to 
 leave the slabs as belonging to the 
 mill, the owners of the logs never 
 claiming them," does not establish a 
 legal right in the mill as real estate, 
 
122 
 
 THE USAGES OF TKADE AND THEIE 
 
 denying the practice was held entitled to a ruling that the 
 practice is not established if no witness can recall a specific 
 
 to the slabs sawed. Adams v. Morse, 
 51 Me. 497. Proof is admissible of 
 a custom among merchants, where 
 merchandise is sold on condition, to 
 deliver it to the buyer before com- 
 pliance with the condition, and that 
 such change of custody is not de facto 
 a waiver of the condition, and the 
 property does not pass thereby. Far- 
 low V. Ellis, 15 Gray (Mass.) 229. 
 When, in a suit against a railroad 
 company for an injury received 
 while passing along a highway, an 
 issue is made upon the unreasonable 
 or negligent conduct of the company 
 in the use of the highway at the 
 time complained of, its usage at 
 other times has no legitimate bear- 
 ing upon this issue, and evidence 
 respecting such usage is incompe- 
 tent. Oahagan v. Boston &c. R. R. 
 Co., 1 Allen (Mass.) 187. No excep- 
 tion lies to the admission of evidence 
 of a custom existing in a trade with- 
 out direct evidence that it was 
 known to the opposite party, if the 
 party offering it contends that he 
 can prove, from all the evidence in 
 the case, that it must have been 
 known to him, and that question is 
 argued and submitted to the jury 
 under proper instructions in matter 
 of law. Dodge v. Favor, 15 Gray 
 (Mass.) 82. Ill determining whether 
 a salary or compensation paid to a 
 director of a bridge corporation was 
 a reasonable expense of the corpora- 
 tion, evidence is inadmissible of cus- 
 tom in sundry other corporations to 
 pay directors no salaries as compen- 
 sation for services. Central Corp. v. 
 Lowell, 15 Gray (Ma.ss.) 106. A gen- 
 eral usage in any place, by which 
 sales on commission are regulated. 
 
 may be given in evidence; for it is 
 a reasonable and legal presumption 
 that every man knows the usage of 
 the place in which he traffics, 
 whether by himself or his factor ; 
 and, if the usage is not illegal, he is 
 bound by it. Dwight v. Whitney, 15 
 Pick. (Mass.) 179 ; Goodenow v. Tyler, 
 7 Mass. 36, 46. Goods being con- 
 signed to an agent for sale, with 
 general instructions to remit the 
 proceeds, it is a sufficient compli- 
 ance with such instructions, if the 
 agent remits by a bill of exchange, 
 without endorsing or guaranteeing 
 it, provided such is the usage at the 
 agent's place of business, and the 
 agent uses proper diligence and dis- 
 cretion in the purchase of the bill. 
 In an action against the agent, to 
 recover the proceeds of such a sale, 
 proof of the usage and of a remit- 
 tance accordingly is a sufficient 
 prima facie defence ; and if it is 
 established by the agent, the burden 
 of proof is then on the principal to 
 show that bills remitted in pursu- 
 ance of the usage ought to be en- 
 dorsed or guaranteed by the agent. 
 Potter V. norland, 3 Cush. (Mass.) 
 384. A usage may be proved by 
 parol, whether it originates in a 
 public written law, or not. Drake v. 
 Hudson, 7 H. & J. (Md.) 399; see 
 also Livingston v. Maryland Ins. Co., 
 7 Cranch. (U. S.) 506. In an action 
 for damages for the want of corre- 
 spondence between tobacco bought 
 by sample and the samples by which 
 it was sold, evidence showing a cus- 
 tom of dealers in Baltimore of buy- 
 ing and selling in bulk, by samples 
 prepared by the State inspectors, 
 without insuring correspondence in 
 
ADMISSIBILITY AS EVIDENCE. 
 
 123 
 
 instance of it.* The mere fact that the evidence is conflict- 
 ing, does not entitle the party, against whom the usage is 
 invoked, to a ruling that the usage is not proved, but it is for 
 the jury to say from all the evidence whether or not the 
 usage is established.^ But if only one witness testifies to the 
 existence of a usage, and another equally competent and of 
 equal credibility contradicts such evidence, it is not proper 
 to leave it for the jury to say whether the usage is established 
 or not, but they should be instructed that the evidence is 
 insufficient.^ Upon the question as to whether a certain 
 
 C[ua]ity, is admissible. Gunther v. 
 Atwell, 19 Md. 157. The existence of 
 a general usage prevailing among 
 banks must be established, as a fact, 
 and not as a matter of judgment or 
 opinion of witnesses deduced from 
 the manner of dealing in a few in- 
 stances in particular banks. Chesa- 
 peake Bank v. Swain, 29 Md. 483. 
 
 * Chenevy v. Goodrich, 106 Mass. 
 566. 
 
 ^ Upton V. Sturbridge Cotton Mills, 
 111 Mass. 446. In Winsor v. Bellor 
 way, 4 Met. (Mass.) 221, where con- 
 tradictory evidence was offered as to 
 the existence of a usage on which 
 the plaintiff relied to support his 
 action, and the jury were instructed 
 that, if it was proved that the usage 
 existed, and the defendant knew it 
 existed, the plaintiff was entitled to 
 recover, and the jury thereupon re- 
 turned a verdict for the defendant; 
 it was held that the plaintiff had no 
 cause of exception to such instruc- 
 tion. See also Tunell v. Carter, 25 
 Ala. 498, to same effect. 
 
 •5 Parrott v.Thacher, 9 Pick. (Mass.) 
 426. In the absence of better proof 
 it was held that evidence of long and 
 uninterrupted usage, reputation, the 
 declarations and conduct of the own- 
 ers of the adjoining land, and the 
 
 public acts of the town, was properly 
 admitted to prove that an ancient 
 corporation of proprietors, now ex- 
 tinct, had dedicated a certain lot to 
 the public use, as a landing place. 
 Sevey's case, 6 Me. 118. Evidence by 
 a justice of the peace that, where 
 called upon by parties to prepare 
 conveyances for them, it was his 
 habit to inquire whether they de- 
 sired absolute or conditional convey- 
 ances ; that he had no doubt such 
 inquiry was made in the present in- 
 stance ; that he never failed to shape 
 the paper according to the expressed 
 object of the parties ; and that he 
 was also in the habit of reading the 
 papers after they were written to 
 those for whom they were prepared, 
 and especially if they were work- 
 men, was held inadmissible. Pocoak 
 V. Hendricks, 8 G. & J. (Md.) 421. In 
 an action by commission merchants 
 in Boston, to recover back money 
 paid to the consignor of goods sold 
 by the plaintiffs to a trader in the 
 country, who failed to pay for them, 
 evidence to show a usage of factors 
 in Boston to credit the amount of 
 sales immediately to the account of 
 the principal, and charge back in 
 case of the insolvency of the pur- 
 chaser, in case the factor has not 
 
124 
 
 THE USAGES OF TRADE AND THEIR 
 
 usage exists or not, a witness may be asked to describe how, 
 under the usage, a transaction like the one in question would 
 be conducted by all the parties thereto from its inception to 
 its conclusion.^ It may be said that the usage of a trade 
 must be proved by the multiplication or aggregation of a 
 great number of particular instances, showing a given course 
 of business, and a general, established understanding respect- 
 ing it.* It is not necessary that there should be either the 
 antiquity, uniformity or notoriety that is essential to estab- 
 lish a custom ; it is sufficient if it is shown to be so well 
 known and so generally acquiesced in that it may reasonably 
 be presumed to have been imported into their contract by the 
 parties.^ In a word, it must be shown that the usage is cer- 
 tain and reasonable, and so universally acquiesced in that 
 every one engaged in the trade knows it, or might know it 
 if he exercised reasonable diligence in making inquiry.-^ It 
 
 been negligent ; and also to show the 
 usage as to the oredit given to city 
 and country purchasers, was held to 
 be admissible. Dwight v. Whitney, 15 
 Pick. (Mass.) 179. Witnesses may 
 be examined to prove the course of 
 a particular trade, but not to show 
 what the law of that trade is. Ruan 
 V. Gardner , 1 Wash. (U. S.) 145 ; Aus- 
 tin V. Taylor, 2 Ohio, 64. A witness, 
 who had lived both in New York and 
 Mobile, understood it was the cus- 
 tom of merchants that the employer 
 should pay the expenses and passage 
 of clerks who were engaged in the 
 former place to do service in the 
 latter place, for the whole of the 
 ensuing business season ; that the 
 witness, who was a merchant, had 
 never so employed or paid .a clerk, 
 but he knew of one case, where, 
 under a stipulation to that effect, the 
 wages and passage money of a clerk 
 thus employed were paid by the 
 employer. Held, that this evidence 
 
 was inadmissible, and consequently 
 incompetent to establish the usage 
 or custom of trade. Price v. White, 
 9 Ala. 563. The plaintiff having 
 proved that a steamboat of the de- 
 fendants was engaged in carrying 
 goods and merchandise, generally, 
 for hire, and the general custom of 
 boats engaged in similar business 
 with that of the defendant, held that 
 it was admissible for the defendant 
 to explain the usage, by showing 
 that no freight or compensation was 
 ever charged or allowed upon re- 
 mittance of money, unless some evi- 
 dence was given by the boat of its 
 receipt, in which event only, a charge 
 was made. ICiiox v. Rives, 14 Ala. 249. 
 
 ^ Kershaw v. Wright, 115 Mass. 861. 
 
 * MacKenzie v.Dunlop, 3 Macq. H. 
 L. Cas. 22. 
 
 "Juggomohun Ghore v. Mlanickhund, 
 7 Moore Ind. App. 263. 
 
 1 Place V. Allcock, 4 Fr, F. 1074. 
 
ADMISSIBILITY AS EVIDENCE. 125 
 
 is a well-settled rule that a person dealing in a particular 
 market is presumed to be acquainted with the usages of 
 that market, and such is the rule in respect to any trade 
 or business ; therefore, when a usage in respect to any busi- 
 ness is shown to be well established, persons dealing in refer- 
 ence to matters to which such usage relates, are presumed to 
 know of it.^ 
 
 The Force of Usage. 
 
 Sec. 73. The force of usage is derived from the habit of 
 mind to expect uniformity in the actions of men, and to 
 anticipate the same conduct under similar circumstances in 
 the future which has been experienced in the past. Were 
 such an anticipation unfounded, custom could have no mean- 
 ing. But use is second nature, and produces a secondary 
 law well nigh as binding on the thoughts and actions of 
 mankind as the laws of Nature herself The proof, there- 
 fore, of single instances in such cases is all-important, and it 
 has been remarked that witnesses who are called to prove a 
 custom of trade, or the general or prevailing course of busi- 
 ness in that calling, should cause their minds to revolve over 
 instances known to them of its having been acted on.(^) 
 
 Elements to be Attached to Usage — Grow^ing Usage —Prevalent 
 Usage. 
 
 Sec. 74. One important particular is to be noted in rela- 
 tion to the evidence given to support a mercantile usage, and 
 that is, that it is not necessary to attach to it the elements of 
 antiquity, uniformity or notoriety, which is necessary to the 
 admission of a local law, or what is technically called a 
 particular custom. Such a usage " may be still in course of 
 
 2 Grissell v. Bnstowe, L. E. 4 C. P, 
 36; Bayliffe v. Butterwofth, 1 Exchq, 
 429 ; Bawring v. Shepherd, 49 L. J. Q 
 B. 129 ; Pollock v. Staples, 12 Q. B. 765 : 
 
 can V. Hill, L. R. 6 Exchq. 25 ; Had- 
 kinson v. Kelly, L. R. 6 Exchq. 496 ; 
 Noble v.Kenoivay, 2 Doug. 513; Bay- 
 ley V. Wilkins, 7 C. B. 880 ; Taylor v. 
 
 Buckle V. Knaap, 36 L. J. Exchq. 49; Stray, 2 C. B. N. S. 175; Mackintosh 
 Greaves v. Legg, 2 H. & N. 210 ; Bun- v. Marshall, 11 Moll. 116. 
 
 [k) HaU V. Benson, 7 C. & P. 911. 
 
126 
 
 THE USAGES OF TRADE AND THEIK 
 
 growth ;"(^) it may require evidence for its support in each 
 case, but in the result it is enough if it appear to be so well 
 known and acquiesced in that it may be reasonably pre- 
 sumed to have been an ingredient tacitly imported by the 
 parties into their contract, (m) Thus, as we have seen, the 
 
 (I) Juggomohun Ghore v. Manich- 
 chund, 7 Moore Ind. App. 263, at p. 
 282. 
 
 (m) Juggomohun Ghore v. Manick- 
 chund,7 Moore Ind. App. 263; Legh 
 V. Hewitt, 4 East. 154, 159, per Ld. 
 Ellenborough ; Dalby v. Hirst, 1 B. 
 <fe B. 224 ; 3 Moore 586 ; Vallance v. 
 Bewar, 1 Camp. 508; but see Collins 
 V. Hope, 3 Wash. (U. S. C. C.) 149; 
 compare Donnell v. Columbian Ins. 
 Co., 2 Sum. (U. S.) 366; Wilcocks v. 
 Phillips, 1 Wall. Jr. (U. S. C. C.) 47. 
 Evidence of usage may be admissible 
 in relation to a mercantile contract 
 in writing, to show in what manner 
 the business is done, although the 
 contract is precise in its terms. Fox 
 V. Parker, 44 Barb. (N. Y.) 541. But 
 in order to become part of a contract 
 must be so far established and so far 
 known to the parties that it must be 
 supposed that their contract was 
 made in reference to it. For this 
 purpose the custom must be estab- 
 lished and not casual, uniform and 
 not varying, general and not per- 
 sonal, and known to the parties. 
 Sipperly v. Steward, 50 Barb. (N. Y.) 
 62; Duguid v. Edwards, Id. 288; 
 Kendall v. Russell, 5 Dana (Ky.) 501 ; 
 Stevens v. Reeves, 9 Pick. (Mass.) 198; 
 Wood V. Hickok, 2 Wend. (N. Y.) 501 ; 
 Martin v. Maynard, 16 N. H. 165; 
 Wheeler v. Newbould, 5 Duer (N. Y.) 
 29. It may be resorted to where the 
 contract contains all that is neces- 
 sary to understand what the parties 
 agreed to do, when the evidence 
 explaining the usage is admitted. 
 
 Dana v. Fiedler, 1 E. D. S. (N. Y.) 
 463. Where a custom exists in 
 reference to a particular trade or 
 business, the contracts of parties 
 engaged in the business are pre- 
 sumed to be made with reference to 
 such custom, unless it is expressly 
 excluded. Ballon v. Daniels, 2 Hilt. 
 (N. Y.) 472. And when well estab- 
 lished, it may enter into the body of 
 a contract without being inserted. 
 Stultz V. Dickey, 5 Binn. (Penn.) 287; 
 S. P. Lodwick V. Ohio Ins. Co., 5 Ohio 
 436; Sewall v. Gibbs, 1 Hall (N. Y.) 
 612; Barber v. Brace, 3 Conn. 9; 2 
 Pet. (U. S.) 148 ; Bank of Columbia v. 
 Fitzhugh, 1 H. & G. (Md.) 239 ; Haven 
 V. Wentworth, 2 N. H. 93 ; United Statse 
 V. Arredondo, 6 Pet. (U. S.) 715; 
 Sampson v. Gaezam, 6 Port. (Ala.) 
 123; Inglebright v. Hammond, 19 
 Ohio 337 ; Hursh v. North, 40 Penn. 
 St. 241. And even the usage and 
 practice of a firm, though not good 
 as a custom, will be binding, if ex- 
 pressly made part of the contract, or 
 shown to have been known and 
 assented to by the defendant at the 
 time; and evidence of such a con- 
 tract, either direct, or by proving a 
 course of dealing between the par- 
 ties, on such terms, and of such 
 frequency, as to justify the inference 
 that the transaction was on the 
 accustomed terms, is admissible. 
 Hursh V. North, 40 Penn. St. 241. 
 The custom among the merchants 
 of Pittsburgh, of charging interest on 
 accounts after six months, having 
 existed for a long time, and become 
 
ADMISSIBILITY AS EVIDENCE. 
 
 127 
 
 " custom of the country " with reference to good husbandry 
 means no more than that the tenant should conform to the 
 existing prevalent usage of the country where the lands lie, (w) 
 and the general usage of trade may be imjDorted into a con- 
 tract though the proof has been given of exceptions to such 
 usage, (o) 
 
 Principle of Admission — Knowledge of Ousiom Presumed. 
 Sec. 75. Evidence of a particular usage, (p) to add to or 
 
 uniform and notorious, the courts of 
 justice are bound to notice it as part 
 of the law. Watt v. Hoeh, 25 Penn. 
 St. 411. A general custom at a par- 
 ticular store, for the customers to 
 allow interest on open accounts after 
 a certain time, cannot have the 
 effect of an agreement, on the part 
 of a party dealing at such store, to 
 pay such interest, unless expressly 
 or impliedly sanctioned by such 
 party. Searson v. Heyivard, 1 Spears 
 (S. 0.) 249. But the usage of a credi- 
 tor to compute interest on monthly 
 rests will not bind his debtor, if it 
 does not appear that the latter knew 
 of such custom. Goodnowy. Parsons, 
 36 Vt. 46. 
 
 (n) Legh v. Heiuitt, 4 East. 154, 
 159, per Ld. EUenborough ; Dalby 
 V. Hirst, 1 B. & B. 224, 228. 
 
 (o) Vallance v. Bewar, 1 Camp. 508. 
 per Ld. EUenborough. 
 
 [p) See Kirchner v. Venus, 12 
 Moore P. C. C. 361; 7 W. E. 455 
 Meyer v. Dresser, 16 0. B. N. S. 646 
 Appleman v. Fisher, 34 Md. 540 
 Southwestern Freight &a. Co. v. Stan- 
 ard, 44 Mo. 71. Mr. Smith, in a 
 note to Wigglesworth v. DalUnson, 1 
 Sm. Lead. Cas. 308a, reviews the 
 cases and evolves the general rule, 
 that evidence of usage will be re- 
 ceived to annex incidents to written 
 contracts with respect to matters in 
 
 reference to which they are silent. 
 1st. In contracts between landlord 
 and tenant. 2d. In commercial 
 contracts. 3d. In contracts in other 
 transactions in reference to which 
 known usages have been established 
 and prevailed. Thus it has been 
 held that evidence was admissible of 
 a usage among brokers, that when 
 mining shares are sold to be paid 
 for " half in two and half in four 
 months," but the contract is silent 
 as to the time of delivery, that pay- 
 ment must be cotemporaneous with 
 delivery. Field v. Selean, 6 H. & K. 
 617 ; Bywater v. Richardson, 1 Ad. & 
 El. 508; Foster v. Mentor &c. Co., 2 
 E. & B. 48 ; Gadts v. Rose, 17 C. B. 
 229 ; Spartari v. Beneche, 10 Id. 212. 
 Or that a contract shall be defeasible 
 on a month's notice by either party. 
 Parker v. Ihbettson, 4 C. B. N. S. 348. 
 Or to attach to bought and sold notes 
 the incidents of a sale by sample. 
 Outhbert v. Camming, 11 Exchq. 405; 
 lAioas V. Bristow, E. B. & E. 907. Or 
 of the sale of a horse, to annex a 
 customary warranty. Allen v. Prink, 
 4 M. & W. 140. To a lease, the 
 reservation of ripening crops. Adams 
 V. Morse, 51 Me. 499 ; Wintermute v. 
 Light, 46 Barb. [IS. Y.) 283 ; Backen- 
 stoss v. Stahler, 38 Penn. St. 251 ; Bond 
 v. Coke, 71 N. C. 97. But that such 
 evidence is only receivable when the 
 
128 
 
 THE USAGES OF TKADE AND THEIR 
 
 in any manner affect the construction of a written contract 
 is admitted only on the principle that the parties who 
 
 incident which it is sought to im- 
 port into the contract is consistent 
 with the terms of the written instru- 
 ment. If inconsistent, the evidence 
 is not receivable, whether such in- 
 consistency is evidenced by the 
 express terms of the contract, or by 
 fair implication therefrom, or if it 
 changes the relation of the parties 
 to each other. Thus, such evidence 
 is not admissible tQ vary the rela- 
 tion of a broker and customer, 
 under an ordinary speculation con- 
 tract, to that of pledgor and pledgee. 
 Baker v. Drake, 66 N. Y. 518; Mark- 
 ham V. Jandon, 41 Id. 435. With 
 respect to commercial contracts, it 
 has been long established that evi- 
 dence of an usage of trade applicable 
 to the contract, and which the par- 
 ties making it knew, or may be 
 reason ably presumed to have known, 
 is admissible for the purpose of im- 
 porting terms into the contract 
 respecting which the written con- 
 tract is silent. The words "usage of 
 trade " are to be understood as re- 
 ferring to a particular usage to be 
 established by evidence, and per- 
 fectly distinct from that general cus- 
 tom of merchants, which is the 
 universal established law of the land, 
 which is to be collected from deci- 
 sions, legal principles and analogies, 
 not from evidence in pais, and the 
 knowledge of which resides in the 
 breasts of the judges. Vallejo v. 
 Wheeler, Lofft. 631 ; Eden v. India E. 
 Co., 1 W. Bl. 299; 2 Burr. 1216; sed 
 vide, Bailie v. Smith, 1 B. & P. 563, in 
 which evidence of the general cus- 
 tom of merchants was received. This 
 distinction, indeed, between the gen- 
 eral custom of merchants, which is 
 
 part of the law of the country, and the 
 particular usages of certain particu- 
 lar businesses, and was not, it seems, 
 so clearly marked in former times 
 as it is now; thus we find Buller, J., 
 saying, 2 T. K. p. 73, that " within the 
 last thirty years (his lordship spoke 
 in 1787) the commercial law of this 
 country has taken a very different 
 turn from what it did before. Before 
 that period we find that, in courts 
 of law, all the evidence in mercan- 
 tile cases was thrown together ; they 
 were left generally to a jury, and 
 produced no established principle. 
 From that time we all know the 
 great study has been to find some 
 certain general principles which 
 shall be known to all mankind, not 
 only to rule the particular case then 
 under consideration, but to serve as 
 a guide for the future." But with 
 regard to particular commercial 
 usages, evidence of them is admissi- 
 ble either to engraft terms into the 
 contract, as in those cases concern- 
 ing the time for which the under- 
 writers' liability in respect of the 
 goods shall continue after the arrival 
 of the ship. Noble v. Kennoway, 
 Dougl. 510, and see the observations 
 on this case in Ougier v. Jennings, 1 
 Camp. 603 n. ; Moon v. Guardians of 
 Witney Union, B Bing. N. C. 817; 
 or to explain its terms, as was done 
 TJdhe V. Waiers, 3 Camp. 16, by show- 
 ing that the Gulf of Finland, though 
 not so treated by geographers, is 
 considered by mercantile men part 
 of the Baltic, and in Hutchinson v. 
 Bowker, 5 M. & W. 535, where it was 
 proved that good barley and fine bar- 
 ley signified in mercantile usage dif- 
 ferent things ; see further, Robertson, 
 
ADMISSIBILITY AS EVIDENCE. 
 
 129 
 
 made the contract were both cognizant of the usage, and 
 are presumed to have made the contract in reference to it. 
 
 V. Clarke, 1 Bing. 445 ; Bottomly v. 
 Forbes, 5 Bing. N. C. 123 ; Moxon v. 
 Atkins, 3 Camp. 200 ; Vallance v. 
 Beivar, 1 Camp. 403 ; Cochran v. Ret- 
 burg, 3 Esp. 121 ; Birch v. JDepeyster, 
 
 1 Stark. 210; 4 Camp. 385; Donald- 
 son V. Forster, Abb. on Shipp. part 3, 
 cap. 1 ; Baker v. Payne, 1 Ves. Jr. 
 459; Raitt v. Mitchell, 4 Camp. 156; 
 LethuUer's case, 2 Salk. 448 ; Gharaud 
 V. Angerstein, Peake 43 ; Bold v. Ray- 
 ner, 1 M. & W. 446 ; Powell v. Horion, 
 
 2 Bing. N. C. 668 ; Bowman v. Horsey, 
 2 M. & E. 85. In mercantile trans- 
 actions, and others of ordinary occur- 
 rence, evidence of established usage 
 is admissible, not merely to explain 
 the terms used, but to annex cus- 
 tomary incidents, when such usage 
 is not expressly or impliedly ex- 
 cluded by the tenor of the written 
 instrument. Parke, B., in Syers v. 
 Jonas, 2 Exch. Ill, 116; and, as to 
 evidence of a usage to pay an agent. 
 Hutch V. Carrington, 5 C. & P. 471 ; 
 for a factor to sell in his own name, 
 Johnston v. Usborne, 11 Ad. & El. 
 549; that "sold eighteen pockets 
 Kent hops at 100«." means in the 
 hop trade 100s. per cwt., Spicer v. 
 Cooper, 1 Q. B. 424; that " in turn to 
 deliver," in a charter-party to Algiers 
 means at a particular spot in the 
 port for a particular purpose, Rob- 
 ertson V. Jackson, 2 C. B. 412 ; to ex- 
 plain the sense in which " the word 
 London " Avas employed, Mallan v. 
 May, 18 M. & W. 511 ; and see Simp- 
 son v. Margitson, 11 Q. B. 23. In 
 Sutton V. Tatham, 10 Ad. & El. 27, 
 it was laid down that a person 
 employing a broker on the stock 
 exchange, impliedly gives him au- 
 thority to act in accordance with the 
 
 rules there established, though the 
 principal be himself ignorant of 
 them. And in Bayliffe v. Butter- 
 worth, 1 Exchq. 416, Sutton v. Tatham 
 was expressly approved of by Parke, 
 B., and Rolfe, B. ; and Alderson, B., 
 laid down the law generally, that " a 
 person who deals in a particular 
 market must be taken to deal 
 according to the custom of that 
 market, and he who directs another 
 to make a contract at a particular 
 place must be taken as intending 
 that the contract may be made 
 according to the usage of that place." 
 And Parke, B., distinguished the 
 cases of Gabay v. Lloyd, 3 B. & C. 
 793, and BaHlett v. Pentland, 10 B. & 
 C. 760, in which the usage of Lloyd's 
 coffee house was held not to be 
 binding on persons who were not 
 shown to have been cognizant of or 
 to have assented to it, on the ground 
 that in Bayliffe v. B^itterworth, the 
 question was as to the authority 
 which the broker received. And 
 Bayliffe v. Buttenvorth has since been 
 followed in the Queen's Bench. Pol- 
 lock V. Stables, 12 Q. B. 765 ; see also 
 Bayley v. Williams, 7 C. B. 886. In 
 Steware v. Cauty, 8 M. & W. 160, a 
 rule of the Liverpool stock exchnnge 
 was admitted in evidence between 
 parties not members of it, upon a 
 question what was a reasonable 
 time for the completion of a sale of 
 shares made at Liverpool through 
 the agency of brokers. See, further, 
 Stewart v. Aberdein, 4 M. & W. 211. 
 So, in a case not falling within the 
 head of mercantile contracts, evi- 
 dence has been received to sliow 
 that by the custom of a particular 
 district the words '' 1,000 rabbits " 
 
 9 
 
130 
 
 THE USAGES OF TRADE AND THEIR 
 
 "Many contracts," said Erie, C. J., "in one case are con- 
 strued by the course of business in the particular trade, or in 
 
 meant 1,200 rabbits. Smith v. Wil- 
 son, 3 B. & Ad. 728 ; and see Clayton 
 V. Gregson, 5 A. & E. 302. In Hinton 
 V. Locke, 5 Hill (N. Y.) 437, Bromon, 
 J., said that he should feel great 
 difficulty in subscribing to the case 
 of Smith V. Wilson ; that it was diffi- 
 cult to deny that the evidence in 
 that case was a plain contradiction 
 of the express contract of the par- 
 ties ; and that no usage or custom is 
 admissible in evidence where it con- 
 tradicts the agreement of the parties. 
 But in Macy v. Whaling Ins. Co., 9 
 Met. (Mass.) 354, 363, Smith v. Wilson 
 appears to be approved; and it is 
 remarked that evidence is admissi- 
 ble, to show that the contract, not- 
 withstanding the common meaning 
 of the language used, was in fact 
 made in reference to the usage in 
 the trade to which the contract re- 
 lates ; and see also Brown v. Brown 
 and others, 8 Id. 573, 576. So, in Reg. 
 Stoke-wpon-Trent, 5 Q. B. 303, an 
 agreement in writing " to serve B. 
 from 11th November, 1815, to 11th 
 November, 1817," at certain wages, 
 " to lose no time on our own ac- 
 count, to do our work well, and 
 behave ourselves in every respect as 
 good servants," was considered capa- 
 ble of explanation by a usage in the 
 particular trade for servants, under 
 similar contracts, to have certain 
 holidays and Sundays to themselves. 
 See Phillips v. Innes, 4 CI. & F. 234. 
 Also, in Orant v. Maddox, 15 M. & 
 W. 737, an agreement by the man- 
 ager of a theatre to engage an 
 actress " for three years, at a salary 
 of £5, £6 and £7 per week in those 
 years respectively," was explained 
 by the usage of the theatrical profes- 
 
 sion to mean that the actress was to 
 be paid only whilst the theatre was 
 open for performance. So, again, in 
 Evans v. Pratt, 3 Man. & Gr. 759 ; 4 
 Scott N. R. 370, S. C, in a memoran- 
 dum as to a race, the run described 
 was " four miles across a country," 
 and evidence was admitted to show 
 that in sporting parlance the mean- 
 ing of those words is straight across, 
 over all obstructions, without liberty 
 to go through open gates. So, 
 where there was a contract to pay 
 freight on delivery, at a certain rate 
 per pound, a custom was allowed to 
 be shown that the ship owner, on 
 payment, allowed three months' dis- 
 count, which of course brought the 
 sum below that agreed upon by the 
 words of the contract. In all con- 
 tracts, the court observed, " as to 
 the subject-matter of which known 
 usages prevail, parties are found to 
 proceed with the tacit assumption 
 of those usages ; they commonly 
 reduce into writing the special par- 
 ticulars of their agreement, but omit 
 to specify those known usages, which 
 are included, however, as of course, 
 by mutual understanding. The con- 
 tract is in truth partly express and 
 in writing ; partly implied or under- 
 stood and unwritten." Brown v. 
 Byrne, 3 Q. B. El. & Bl. So, if A. and 
 B. were to agree for a lease, it would 
 be implied from custom that the 
 lessor should prepare and the lessee 
 pay for it. Grissett v. Robinsoyi, 3 
 Bing. N. C. 11. Although, in gen- 
 eral, upon a sale of property, the 
 vendee who is to bear the expense 
 of the conveyance ought to prepare 
 it. Price v. Williams, 1 M. & W. 6 ; 
 Poole V. Hill, 6 M. & W. 835; 
 
ADMISSIBILITY AS EVIDENCE. 
 
 131 
 
 the particular place where they are made. ... In the cases 
 where such local usages are imported into the contract, it is 
 
 Stephens v. Be Medina, 4 Q. B. 422 ; 
 see, however, Clarke v. Stilhoell, 8 Ad. 
 & El. 645. But the admissibility of 
 evidence of custom to explain the 
 meaning of a word used in any con- 
 tract whatever, is subject to this 
 qualification, viz., that if an Act of 
 Parliament has given a definite 
 meaning to. any particular word de- 
 noting weight, measure or number, 
 it must be understood to have been 
 used witli that mieaning, and no evi- 
 dence of custom will be admissible 
 to attribute any other to it; per 
 curiam, in Smith v. Wilson, see also 
 Sockin V. Cooke, 4 T. E. 314; The 
 Master of St. Cross v. Lm-d Howard de 
 Walden, 6 T. R. 388; Wing v. Erie, 
 Cro. Eliz. 267 ; Noble v. Durell, 3 T. 
 K. 271. In Doe v. Lea, 11 East 312, 
 it was held that a lease by deed of 
 lands since the new style, to hold 
 from the feast of St. Michael, must 
 mean New Michaelmas, and could 
 not be shown by parol evidence to 
 refer to Old Michaelmas. In Furley 
 V. Wood, 1 Esp. 198, Eunn. Eject. 112, 
 Lord Kenyon had under similar cir- 
 cumstances admitted parol evidence 
 of the custom of the country to 
 explain the meaning of the word 
 Michaelmas; and the court, in Doe 
 V. Lea, on hearing that case, asked 
 whether the holding there was hy 
 deed, which it does not appear to 
 have been, and to which it may be 
 added that it appears possible that 
 it was not even in writing. In Doe 
 v. Benson, 4 B. & A. 588, evidence of 
 the custom of the country was held 
 admissible for the purpose of show- 
 ing that a letting hy parol from Lady- 
 day, meant from Old Lady -day. The 
 court referred to Furley v. Wood, and 
 
 distinguished that case from Doe v. 
 Lea, on the ground that the letting 
 there was hy deed, "which," said 
 Holroyd, J., "is a solemn instru- 
 ment; and therefore parol evidence 
 was inadmissible to explain the ex- 
 pression Lady-day there used, even 
 supposing that it was equivocal." 
 It is perhaps not easy to conceive a 
 distinction, founded on principle, 
 between the admissibility of evi- 
 dence to explain terms used in a 
 deed, and terms used in a written 
 contract not under seal ; for though, 
 when the terms of a deed are ascer- 
 tained and understood, the doctrine 
 of estoppel gives them a more con- 
 clusive effect than those of an un- 
 sealed intrument; yet the rule that 
 parol evidence shall not be admitted 
 to vary the written terms of a con- 
 tract seems to apply as strongly to 
 a contract without a seal as with 
 one, while, on the other hand, it 
 appears from the principal case of 
 Wigglesworth v. Dallison, without 
 going further, that in cases where 
 parol evidence is in other respects 
 admissible, the fact that the instru- 
 ment is under seal forms no insuper- 
 able obstacle to its reception. Nor 
 does it seem necessary, in order to 
 prevent a contradiction between Doe 
 V. Lea, and Doe v. Benson, and Furley 
 V. Wood, to establish any such dis- 
 tinction between deeds and other 
 written instruments; for, in Doe v. 
 Benson, the letting seems not to have 
 been in writing, so that the objection 
 to the admission of parol evidence, 
 founded upon the nature of a writ- 
 ten instrument, did not arise. In 
 Furley v. Wood the letting was per- 
 haps also by mere parol ; and though 
 
132 
 
 THE USAGES OF TRADE AND THEIK 
 
 because they tacitly form part of it like those contracts in 
 which we find the words, ' and other usual terms.' They 
 
 the evidence was, it is true, offered 
 to explain the notice to quit, still it 
 may he urged that, when the hold- 
 ing was once settled, to commence 
 from Old Michaelmas, the notice to 
 quit, which probably contained the 
 words " at the expiration of your 
 term," or something ejusdem generis, 
 must be held to have had express 
 reference to, and to.be explained by 
 it. ■ We must not, therefore, it is 
 submitted, too hastily infer that 
 parol evidence of custom would be 
 receivable to explain a word of time 
 used in the lease in writing,, but not 
 under seal. Doe v. Lea was acted 
 upon by the Court of Common Pleas, 
 in Smith v. Walton, 8 Bing. 238, where 
 the defendant avowed for rent pay- 
 able " at Martinmas, to wit, Novem- 
 ber 23d ;" the plaintiff pleaded non 
 tenuit, and a holding from Old Mar- 
 tinmas having been proved, the 
 court thought that words after the 
 videlicet must be rejected, as incon- 
 sistent with the term Martinmas, 
 which they thought themselves 
 bound by statute to interpret No- 
 vember 11th ; that no evidence was 
 admissible to explain the record, 
 and that there was, therefore, a fatal 
 variance between it and the evi- 
 dence. See Hockin v. Cooke, 4 T. E. 
 314 ; The Master of St. Gross v. Lord 
 Howard de Walden, 6 T. E. 338; 
 Kearney v. King, 2 B. & A. 301 ; 
 Sprowle V. Legge, 1 B. & C. 16. How- 
 ever, evidence of usage, though 
 sometimes admissible to add to, or 
 explain, is never so to vary or to 
 contradict either expressly or by 
 implication the terms of a written 
 instrument. Magee v. Atkinson, 2 
 M. & W. 442 ; Adams v. Wordley, 1 
 
 M. & W. 374 ; Truman v. Loder, 11 
 Ad. & El. 589. Thus, in Yeates v. 
 Pym, 6 Taunt. 445, in an action on a 
 warranty of prime singed bacon, evi- 
 dence was offered of an usage in the 
 bacon trade, that a certain latitude 
 of deterioration called " average 
 taint," was allowed to subsist before 
 the bacon ceased to answer the 
 description of prime bacon. This 
 evidence was held inadmissible, first 
 at Nisi Prius, by Heath, J., and after- 
 wards by the Court of Common 
 Pleas. In Blackett v. Royal Exchange 
 Ins. Co., 2 Tyrwh. 266, which was an 
 action on a policy upon " ship, &c., 
 boat, and other furniture," evidence 
 was offered that it was not the usage 
 of underwriters to pay for boats 
 slung on the davits, on the larboard 
 quarter, but was rejected at Nisi 
 Prius, and the rejection confirmed 
 by the Court of Exchequer. " The 
 objection," said Lord Lyndhurst, de- 
 livering judgment, " to the parol 
 evidence is, not that it was to explain 
 any ambiguous words in the policy, 
 or any words which might admit of 
 doubt, or to introduce matter upon 
 which the policy was silent, but that 
 it was at direct variance with the 
 words of the policy, and in plain 
 opposition to the language it used, 
 viz., that whereas, the policy im- 
 ported to be upon ship, furniture, 
 and apparel generally, the usage is 
 to say, that it is not upon furniture 
 and apparel generally, but upon part 
 only, excluding the boat. Usage 
 may be admissible to explain what 
 is doubtful, but is never admissible 
 to contradict what is plain." The 
 language must neither add to, nor 
 qualify, nor contradict, the written 
 
ADMISSIBILITY AS EVIDENCE. 133 
 
 then form part of the contract. The contract expresses 
 what is particular to the bargain, and the usage supplies the 
 rest."(g') As it is only a law in growth, and not in complete- 
 ness, persons are only presumed to be aware of it, as there 
 was no necessity incumbent upon them of informing them- 
 selves of the whole of the customs of a trade, as there is upon 
 every subject of becoming acquainted with the whole of the 
 laws of a country. 
 
 May be Rebutted. 
 
 Sec. 76. Therefore the presumption may be rebutted, (r) 
 Thus where goods were shipped at Liverpool for Sydney, 
 and where by bill of lading the goods were made deliverable 
 to the shipper's order, or assigns, " he or they paying freight 
 for the goods here as per margin," and in the margin the 
 stated amount of freight was made payable in Liverpool to 
 M. (who was not the shipowner), one month after the sailing 
 of the vessel, it was held that, as against an indorsee for 
 value of the bill of lading, the master could not detain the 
 goods at the port of delivery on the ground of non-payment 
 of the freight, although the jury found that by the usage of 
 
 contract, but only " ascertain by be engrafted on the engagement to 
 
 expounding" it. Browne v. Byrne, leave it. But if the parties meant 
 
 3 Q. B. 717. In Roberts v. Barker, 1 to be governed by the custom in this 
 
 Cr. & Mee. 808, the question was respect; there was no necessity for 
 
 whether a covenant in a lease, any stipulation, as by the custom the 
 
 whereby the tenant bound himself tenant would be bound to leave the 
 
 not, on quitting the land, to sell or manure and would be entitled to be 
 
 take away the manure, but to leave paid for it. It was altogether idle, 
 
 it to be expended by the succeeding therefore, to provide for one part of 
 
 tenant, excluded the custom of the that which was sufficiently provided 
 
 country, b}^ which the outgoing ten- for by the custom, unless it was in- 
 
 adt was bound to leave the manure, tended to exclude the other part." 
 
 and was entitled to be paid for it. Clarke v. Roystone, 13 M. & W. 752 ; 
 
 The court held that it did. " It was Redding v. Menham, 1 M. & R. 236 ; 
 
 contended," said Lord Lyiidhurst, Spartalli v. Bencke, 10 Q. B. 212. 
 
 delivering judgment, "that the stipu- (q) Meyer v. Dresser, 16 C. B. N. S. 
 
 lation to leave the manure was not 646, at 660. 
 
 inconsistent with the tenant's being (r) See Southwestern Freight &c. Co. 
 
 paid for what was so left, and the v. Stanard, 44 Mo. 71. 
 custom to pay for the manure might 
 
134 
 
 THE USAGES OF TRADE AND THEIK 
 
 Liverpool the shipowner does not lose his lien for the freight 
 by making it payable at the port of shipment, and that such 
 a local usage cannot bind a bona fide holder for value with- 
 out notice, (s) A custom in a place from which goods are 
 shipped, is not necessarily binding upon a consignee at 
 another place, and from the mere fact of the existence of a 
 certain custom at the place of shipment, a jury would not be 
 warranted in presuming that such a usage existed at the 
 place to which the goods were consigned. Thus, the fact 
 that a usage existed at a city from which goods were 
 shipped, that the bill of lading shall not be detached from 
 the draft until the draft is paid, was held not sufficient to 
 warrant the jury in presuming that such usage existed in a 
 neighboring city to which the cargo was consigned.^ In 
 order to make such a usage valid, it must be recognized and 
 acted upon in both cities,* and mere proof of its existence in 
 
 (s) Kirchner v. Venus, 12 Moore P. C. C. 361 : 7 W. R. 455. 
 
 =* Meara v. Waples, 3 Houst. (Del.) 
 581. 
 
 * Mears v. Waples, 4 Houst. (Del.) 
 62. A mere local usage is not bind- 
 ing upon a party unless he has 
 notice or knowledge of its existence 
 at the time when the contract was 
 entered into, and the burden of 
 establishing knowledge is on the 
 person setting it up. Kirchner v. 
 Venus, 12 Mo. P. C. N. S. 361 ; Simp- 
 son V. Margetson, 11 Q. B. 32 ; The 
 Albatross v. Wayne, 16 Ohio 513 ; 
 Flynn v. Murphy, 2 E. D. S. (N. Y. 
 C. P.) 378; Latimer v. Alexander, 14 
 Ga. 259 ; Barnard v. Kellogg, 10 Wall. 
 (U. S.) 383; Halls v. Howell, Harp. 
 (S. C.) 427. In Eogers v. Mechanics' 
 Ins. Co., 1 Story (U. S.) 603, the 
 court says, " The usage or custom of 
 a particular port, in a particular 
 trade, is not such a usage or custom 
 as will, in contemplation of law 
 limit, control or qualify the language 
 
 of a contract of insurance. It must 
 be some known, general usage or cus- 
 tom in the trade, both applicable 
 and applied to all the ports of the 
 State, and so notorious as to afford a 
 presumption that all contracts of 
 insurance in that trade are made in 
 reference to it as a part of the 
 policy.'' See also PUlshurqh Ins. Co. 
 V. Bravo, 2 Weekly Notes Cases 194 ; 
 Dean V. Sivoop, 2 Binn. (Penn.) 72; 
 Adams v. Ins. Co., 76 Penn. St. 411; 
 Cope V. Bodd, 13 Id. 33 ; McMasters 
 V. R. R. Co., 69 Id. 374. Indeed, any 
 usage to be binding must be estab- 
 tablished by such clear and satisfac- 
 tory evidence that a presumption 
 naturally arises that the parties con- 
 tracted in reference to it. Bowling 
 V. Harrison, 6 How. (U. S.) 259; 
 Strong v. Camngton, 11 Am. Law 
 Peg. 287 ; Olerichs v. Ford, 23 How. 
 (U. S.) 49 ; Callings v. Hope, 3 Wash. 
 (U. S. C. C.) 149 ; Pirrpont v. Fou'le, 2 
 
ADMISSIBILITY AS EVIDENCE. 
 
 135 
 
 one place does not warrant the inference that it exists at 
 
 W. & M. (U. S. C. C.) 24. In New 
 York it is held that proof of a local 
 usage is inadmissible to control the 
 rules of law respecting a particular 
 trade. Higgins v. Moore, 34 N. Y. 
 417 ; Minnesota R. R. Co. v. Morgan, 
 52 Barb. (N. Y.) 217 ; Bissell v. Camp- 
 bell, 54 N. Y. 353. Or to vary an ex- 
 press agreement. Main v. Eage, 1 
 E. D. S. (N. Y. C. P.) 619 ; Stebhim v. 
 Brmm, 65 Barb. (N. Y.) 274; Beah v. 
 Terry, 2 Sandf. (N. Y.) 127. Or add 
 incidents thereto contrary to the 
 rules of the general law, as to import 
 a warranty where caveat emptor ap- 
 plies. Hawes v. Lawrence, 3 Sandf. 
 (N. Y.) 193 ; also 4 N. Y. 345 ; Beirne 
 V. Lord, 5 N. Y. 95. Or to qualify 
 the plain provisions of a contract 
 about which there is no ambiguity. 
 Calknder v. Dinsniore, 55 N. Y. 200 ; 
 Bradley v. Wheeler, 4A Id. 495 ; Mer- 
 cantile &c. Ins. Co. V. State Ins. Co., 
 25 Barb. (N. Y.) 319; Groat v. Gile, 
 51 N. Y. 431 ; Simmons v. Law, 8 
 Bos. (N. Y.) 213. Or to contradict 
 its plain legal import. Holmes v. 
 Pettingill, 1 Hun. (N. Y.) 316 ; Allen 
 v. Dykers, 3 Hill (N. Y.) 593; Dalton 
 V. Baniels, 2 Hilt. (N. Y. C. P.) 472; 
 Vail V. Rice, 5 N. Y. 155 ; Lombardo 
 V. Case, 45 Barb. (N. Y.) 95; Sewall 
 v. Gibbs, 1 Hall (N.Y.) 602; Law- 
 rence V. Ma.rwell, 58 N. Y. 19 ; Taylor 
 V. Ketehum, 35 How. Pr. (N. Y.) 289; 
 Wadmorth v. ^fcott, 6 N. Y. 64; 
 Spears v. flart, 3 Eobt. (N. Y.) 420; 
 Ourrie v. Smith, 4 Leg. Obs. (N. Y.) 
 343 ; Lane v. Bailey, 47 Barb. (N. Y.) 
 395; Wallv. Ins. Co., 3 Duer (N. Y.) 
 264; Bargett v. Oriental Ins. Co., 3 
 Bos. (N. Y.) 385; Suydam v. Ctorfc, 2 
 Sandf. (N. Y.) 183. Or to overcome 
 a settled rule of commercial law, but 
 it may be received to explain it. 
 
 Frith V. Barker, 2 John. (N. Y.) 327 ; 
 Emery v. Dunbar, 1 Daly (N. Y. C. 
 P.) 408 ; Bowen v. Neivell, 8 N. Y. 190 ; 
 Gibson v. Oulvei; 17 Wend. (N. Y.) 
 305. A local usage cannot be given 
 effect to vary a contract, as a usage 
 for pledgees of stock to transfer it at 
 pleasure, when the contract of pledge 
 only provided that it might be trans- 
 ferred after default. Dykers v. Allen, 
 7 Hill (N. Y.) 497 ; affirming S. C, 3 
 Id. 593 ; Vail v. Rice, 5 N. Y. 155 ; 
 Carrie v. Smith, 4 Leg. Obs. (N. Y.) 
 848. The same rule was also applied 
 to a usage offered to alter the legal 
 effect of an insurance policy. Steb- 
 bins V. Globe Ins. Co.. 2 Hall (N. Y.) 
 682 ; Mutual Safety Ins. Co. v. Hone, 
 2 N. Y. 235. And to a usage to sat- 
 isfy contracts for the sale of flour of 
 a specified brand, by the delivery of 
 other brands of equal or better qual- 
 ity. Beals V. Terry, 2 Sandf. (N. Y.) 
 127. Or to treat as a delivery that 
 which is not in law a delivery. Suy- 
 dam V. Clark, 2 Sandf. (N. Y.) 133 ; 
 and see Smith v. Lynes, 5 N. Y. 41. 
 A local usage can never vary the 
 construction of a contract, unless it 
 is clearly proved that its existence 
 was known to the parties, and that 
 their contract was made in reference 
 to its terms. Wheeler v. Newbould, 5 
 Duer (N. Y.) 29; affd., 16 N. Y. 392. 
 Nor if it contradicts the contract. 
 Sweet V. Jenkins, 1 R. I. 147. A cus- 
 tom of a particular locality for the 
 owner of a lot of land, after giving 
 notice to the owner of an adjoining 
 lot to build his half of a partition 
 fence, and his refusal to do so, to 
 build the whole, and hold the party 
 refusing for his share of the expense, 
 has been held to be a reasonable and 
 just custom, which may be enforced. 
 
136 
 
 THE USAGES OF TEADE AND THEIK 
 
 another {Reynolds v. Continental Ins. Co., 36 Mich. 131), 
 
 Knox V. Artman, 3 Rich. (S. C.) 283. 
 A shipper of goods is chargeable 
 with notice of an established and 
 well known usage, existing in a par- 
 ticular trade, in regard to the stow- 
 age of a general ship, both as to the 
 manner of stowing, and as to the 
 different articles to be stowed to- 
 gether. And if the shipper, in such 
 case, gives no ispecial instructions, 
 and his goods are stowed in con- 
 formity with such usage, he is 
 deemed to have assented to such 
 mode of stowage, and cannot, in case 
 his goods are injured on the voyage, 
 in consequence of the mode of 
 stowage, set that up as a ground of 
 complaint, or as. a foundation for 
 deprivin^the owners of their freight. 
 Baxter v. Leland, 1 Blatch: (U. S. C. 
 C.) 526. Where a cargo was carried 
 by a vessel, " addressed to " the 
 owner of the cargo, he was held to 
 be entitled to no commissions on 
 the freight, and any usage giving 
 him commissions in such a case, was 
 held to be an unreasonable one, and 
 the shipper was allowed no deduc- 
 tion from the freight, because wood 
 and water, usually stowed on deck, 
 had been stowed below, as it ap- 
 peared that the bulkheads had been 
 so moved as to give about the same 
 amount of room. Jelison v. Lee, 3 
 W.&M. {U. S. C. C.) 868. In a case 
 before the United States Supreme 
 Court, Willcocks v. Phillips, 1 Wall. 
 Jr. 47, where a master and his ves- 
 sel were employed near Canton, in 
 China, in a service not strictly with- 
 in their ordinary offices, _and not, 
 originally, in any way contemplated, 
 the ship being used, by an arrange- 
 ment with the agent of the owner at 
 Canton, for twenty-two months, as 
 
 an opium store-ship, and, according 
 to usage, a sum of five dollars on 
 each box was paid on the delivery 
 of the opium, which was called a 
 "kumshaw," and which was exclu- 
 sive of the price paid for storage, 
 and the "kumshaws " were paid to 
 the master, with the acquiescence of 
 the agent, there having been no 
 express agreement made with re- 
 spect to the same, it was held, in a 
 suit by the owner of the vessel 
 against the master, to recover the 
 " kumshaws,'' as a part of the earn- 
 ings of the vessel, that it should be 
 left to the jury to s'ay, whether, by 
 the usage of the trade, the " kum- 
 shaws " belonged to the master. 
 The court must judge of the reason- 
 ableness and validity of any usage. 
 Thus, where there is proof of an 
 agreed price or compensation, or of 
 a usage which might affect it, or 
 from which an agreement might be 
 inferred, it would not be correct to 
 authorize them to judge of the rea- 
 sonableness of the charges, irrespec- 
 tive of such agreement or usage; 
 but the court should determine 
 whether, if proved to the satisfaction 
 of the jury, the usage is reasonable 
 or operative. Codman v. Armstrong, 
 28 Me. 91. Exercising this power, it 
 was held by the court, in Walker v. 
 Transportation Co., 3 Wall. (U. S.) 
 150, that a local custom that ship 
 owners shall be liable for the negli- 
 gence of their agents, in cases where 
 the statute exempts them from lia- 
 bility, is unreasonable and therefore 
 invalid. So, too, in Bliss v. Mopes, 9 
 Allen (Mass.) 369, it was held that 
 evidence of a custom that a master 
 of a vessel in a particular port has 
 no authority to bind his owners for 
 
ADMISSIBILITY AS EVIDENCE. 
 
 137 
 
 but when instances of its application in one place are 
 
 necessaries furnished to the vessel, 
 is inadmissible, as it would contra- 
 dict and control a settled rule of 
 maritime law, of universal applica- 
 tion. In Lombardo v. Case, 45 Barb. 
 (N. Y.) 295, in an action on a con- 
 tract to deliver certain railroad 
 stock, it was held that the plaintiff 
 would not be permitted to prove 
 that, by the general custom of 
 brokers and dealers in stocks in the 
 city of New York, the words " divi- 
 dends or surplus dividends," in the 
 contract, were intended to mean 
 dividends declared on the stock, 
 whether they had been annount^ed 
 before or after the date of the con- 
 tract, provided that on the day the 
 contract was made, the stock was 
 selling in the market " dividend on," 
 and not " ex-dividend ;" for the rea- 
 son that effect could not be given to 
 the custom, without making a new 
 contract between the parties. It 
 was also held, in the same case, 
 that the words " six months from 
 date," cannot by proof of any cus- 
 tom, be extended or explained to 
 mean, or include, " a day or two 
 before date." Per Sutherland, J. 
 In Overman v. Hohoken City Bank, 30 
 N. J. L. 61, it was held that the 
 holder of a check drawn upon a 
 bank cannot avail himself of a cus- 
 tom by which banks belonging to 
 an association, called the clearing 
 house, of which the drawee was one, 
 are bound to return checks, pre- 
 sented through the clearing house, 
 and which they have no funds to 
 pay, upon the same day, or before 
 banking hours of the next day, under 
 penalty of being liable for the same, 
 and that the fact that the check was 
 presented through the clearing house 
 
 by a bank which belonged to that 
 association, and acted as the agent 
 of the holder, can make no differ- 
 ence, as customs in derogation of 
 the common law must be strictly 
 pleaded, and when well pleaded, the 
 count must show a case clearly 
 within the usage. Therefore, an 
 allegation of a custom that when a 
 check is presented at the clearing 
 house to a bank against which the 
 check is drawn, it shall be returned 
 within a certain time if not paid, 
 does not cover the case of the pre- 
 sentment of a check to a bank which 
 is the agent of the bank upon which 
 it is drawn. As to the necessity of 
 pleading a custom or usage in dero- 
 gation of the common law, and its 
 inadmissibility under the general 
 issue, see Governor v. Withers, 5 Graft 
 (Va.) 24. In an action against a rail- 
 road company by a person employed 
 in repairing their road, to recover 
 for injuries received while being car- 
 ried by them to his work, the de- 
 fendants alleged that the plaintifl' 
 was negligent in riding in the bag- 
 gage car. It was held. Strong, J., 
 dissenting, that evidence that it was 
 the custom for such workmen to ride 
 in the baggage car was admissible. 
 O'Donnell v. Allegheny R. R. Co., 50 
 Penn. St. 490. In an action upon a 
 contract to receive at a future day, 
 a certain number of barrels of flour 
 at a fixed price, evidence is not ad- 
 missible to prove a custom that 
 either party to such a contract " has 
 a right to demand a margin to be 
 put up, reasonably sufficient to se- 
 cure the performance of the con- 
 tract." Bowie, C. J., dissenting. 
 Oelriohs v. Ford, 21 Md. 489. When 
 a special contract is proved, evi- 
 
138 
 
 THE USAGES OF TEADE AND THEIR 
 
 shown, it may be shown to exist in other places for the 
 
 dence is not admissible to show a 
 conflicting general custom. Exchange 
 Bank v. Cookman, 1 West Va. 69; 
 Detwikr v. Green, lb. 109. In an ac- 
 tion by the payee of a note given for 
 the purchase money of a mining 
 claim in California, evidence of a 
 custom there for the vendor to re- 
 turn a note so given if the claim 
 proved unprofitable, as it did in this 
 case, is not a defence without proof 
 that the custom was known to the 
 plaintiff, and even if the custom set 
 up had been well established, it 
 would be invalid because unreason- 
 able. Leonard v. Peeples, 30 Ga. 61. 
 Evidence of a usage with other 
 banks organized under the same law, 
 to discount more than the legal rate 
 of interest, upon the acquisition of 
 business paper, is not admissible in 
 a suit by a bank upon the paper so 
 discounted. Niagara County Bank v. 
 Baker, 15 Ohio St. 68. Because a 
 usage in violation of a statute, or 
 which furnishes a pretext or excuse 
 for avoiding it, is bad. New York 
 Fireman's Ins. Co. v. Ely, 2 Cow. (N". 
 Y.) 678 ; Bank of XJtica v. Wager, 2 Id. 
 712 ; Dunham v. Bey, 18 John. (N.Y.) 
 46. Special usages are not binding, 
 unless known to the party sought to 
 be charged thereby. Thus, if the 
 master of a vessel hires a berth for 
 her at a wharf, without notice of any 
 rule of that wharf concerning the 
 mode of discharging cargoes differ- 
 ent from the usage at similar wharves 
 in the same port, a stevedore whom 
 he employs to discharge his cargo 
 may do so according to such usage, 
 and, if prevented by the wharfinger, 
 may maintain an action against him 
 for damages. Croncher v. Wilder, 98 
 Mass. 322. So in an action on a 
 
 policy of insurance, evidence of a 
 local custom amongst insurers, not 
 communicated to, the insured, nor of 
 such notoriety as to afford any pre- 
 sumption of knowledge on his part, 
 is not admissible. Hartford Protective 
 Insurance Co. v. Harmer, 2 Ohio St. 
 452. But in an action on a policy of 
 insurance, evidence is competent to 
 prove a usage that where there has 
 been a verbal agreement for insur- 
 ance, and the terms agreed upon 
 and entered in the books of the com- 
 pany, the contract for insurance is 
 considered as valid for the insured, 
 although the premium is not paid. 
 Baxter v. Massasoit Ins. Co., 13 Allen 
 (Mass.) 320. The practical adoption 
 and use, for a long time, of a par- 
 ticular route, under a right of way 
 granted by deed without fixed and 
 defined limits, if acquiesced in by 
 the grantor, operate to determine 
 the location of the way as effectu- 
 ally as if the same had been de- 
 scribed in the deed, because by 
 acquiescing in the continued use of 
 such route the owner of the land is 
 treated as licensing that as the way 
 granted, and the other by using it is 
 treated as electing to adopt it. Ban- 
 non V. Angier, 2 Allen (Mass.) 128. 
 In an English case the defendant 
 chartered the plaintifi''s vessel to 
 proceed to Newcastle-on-Tyne, and 
 there be ready forthwith, "in regular 
 turns of loading," to take on board 
 by spout or keel, as directed, a com- 
 plete cargo of four keels of coal, and 
 the remainder coke. In an action 
 for not loading the vessel with coke 
 within a reasonable time, it was held 
 that evidence was admissible to ex- 
 plain the meaning of the expression 
 in the charter party, " in regular 
 
ADMISSIBILITY AS EVIDENCE. 
 
 139 
 
 purpose of establishing uniformity or notoriety.^ In Star 
 Glass Co. V. Morey, 108 Mass. 570, the rule that the usage 
 at the place of manufacture, rather than 'that at the place 
 of sale will prevail, was applied in a case where glass was 
 ordered in Boston from a manufacturer of glass in Philadel- 
 phia, and the prices and sizes were designated according to 
 the manufacturer's price cards, but the local usages as to the 
 standard of measurement and mode of cutting to fit the cor- 
 responding sizes of sash, were different. 
 
 Incidents of a Usage Must be Reasonable. 
 
 Sec. 77. But although all the incidents which are neces- 
 
 turus of loading," by showing that 
 there was a usage of the port of New- 
 castle that vessels should take in 
 their cargoes of coke in a certain 
 regular order or turn ; and that the 
 question, whether the vessel was 
 loaded within a reasonable time, 
 ought not to be decided without ref- 
 erence to such usage, if proved. 
 Leidemann v. Sohultz, 14 C. B. 38. 
 The defendant, a London merchant, 
 employed a broker at Liverpool to 
 purchase some wool. The broker 
 negotiated a sale by the plaintiff to 
 the defendant of certain bales deliv- 
 erable at Odessa, " the names of the 
 vessels to be declared as soon as the 
 wools were shipped." In this trans- 
 action the broker acted for both 
 plaintiff and defendant. By the cus- 
 tom of Liverpool, where a contract 
 contained a stipulation that notice 
 of an event should be given by the 
 vendor to the vendee, it was usual 
 for the vendor to give the notice to 
 the broker, who communicated it to 
 the vendee. It was held that the de- 
 fendant was bound by such usage, 
 and therefore that a notice by the 
 plaintiff to the broker, of the names 
 of the vessels in which the wools 
 
 were shipped, was a performance of 
 that stipulation, although the broker 
 omitted to communicate them to the 
 vendee. Greaves v. Legg, 34 Eng. Law 
 & Eq. 489. Evidence of a custom in 
 a certain town to sell lumber with- 
 out previously measuring it, is ad- 
 missible, when material, if the lum- 
 ber to which it is sought to be 
 applied is not shown to have been 
 brought into the town by water, and 
 as such required by the statute, to 
 be surveyed and marked. Lee v. 
 Kilburn, 3 Gray (Mass.) 594. Where 
 it is proved that it has been the prac- 
 tice, for a long series of years, for the 
 vicars choral of a cathedral, during 
 their year of probation, to be ex- 
 cluded from a share in some of the 
 emoluments of their office, and it 
 can be gathered from the documents 
 in existence, that some person had 
 the power of regulating the manner 
 in which the vicars choral were to 
 be maintained, it will be presumed 
 that some regulation was made, out 
 of which the practice originated. 
 Shourbrklge v. Chirk, 22 Eng. L. & Eq. 
 435. 
 
 '' Citizens' Ins. Co. v. McLaughlin, 53 
 Penn. St. 485; Sumner v. Tyson, 384. 
 
140 THE USAGES OF TKADE AND THEIE 
 
 sary to the recognition of a particular custom or local law 
 are not necessary in the case of a usage of trade, still some 
 are; it must, for instance, be reasonable to be binding, and 
 it has been held that it is not reasonable if an honest or 
 right-minded man would deem it unfair or unrighteous. (^) 
 It is very evident that this is a necessary incident. Usages 
 are the result of the experience of mankind, and have been 
 planned with a view to their convenience. But nothing 
 absolutely unreasonable could result from the former, or 
 tend to produce the latter. The self-will of an individual 
 might make dishonesty or nonsense paramount for a day, 
 but the experience of men never could consecrate what was 
 unrighteous, their convenience and comfort never could be 
 subserved by what was unjust or unreasonable. Where evi- 
 dence of a usage has been admitted, therefore, evidence may 
 be given in reply, tending to show that such a supposed 
 usage would be unreasonable, (m) 
 
 Void Usages. 
 
 Sec. 78. A usage or custom that makes a negotiable 
 instrument transferable without endorsement, is against the 
 policy of the law, and therefore invalid. Thus, a local cus- 
 tom among cotton dealers making a warehouse receipt trans- 
 ferable by delivery without endorsement, and such mere 
 transfer to pass the title to the cotton unless notice is given 
 that a receipt has been lost or got into the hands of some one 
 not entitled to hold it, was held bad.^ So a usage that no 
 title passes upon an ordinary sale and delivery — no lien 
 being reserved by contract — without actual payment of the 
 purchase-money, is invalid.' In the case last cited the court 
 took occasion to place the ground of invalidity upon the cir- 
 cumstance that it was an attempt by usage to engraft terms 
 
 (t) Paxton V. Courtnay, 2 F. & F. 131 ; Freight &o. Co. v. Stanard, 44 Mo. 71. 
 see Leuckhartv. Cooper, S Scott 521; B [u) Bottomly x. Forbes, 5 Bing. N. 
 
 Biiig. N. C. 99 ; see also Southipeslern C. 128. 
 
 " Lehman v. Marshall, 47 Ala. 362. ' HasJdns v. Warren, 115 ]Mass. 514. 
 
ADMISSIBILITY AS EVIDENCE. 141 
 
 upon a contract inconsistent with the rules of the common law, 
 but it would seem that the true ground of invalidity is the 
 circumstance that such a usage is against the policy of the 
 law. So is a usage requiring a consignee to receipt for a 
 certain quantity of property before he has an opportunity of 
 ascertaining whether the quantity named in the receipt has 
 been delivered. Thus, a usage requiring a consignee to 
 receipt for grain weighed into a delivery bin before he has 
 taken it from the bin, or has had an opportunity, except from 
 the other party's statement, to ascertain whether the quantity 
 of grain receipted for is there, has been held unreasonable 
 and therefore void.^ In Gallup v. Lederer, 1 Hun. (N. Y.) 
 282, the defendant offered to show that it was the custom of 
 merchants to sign the receipt presented by carmen with goods, 
 without any inquiry on' the part of the receiving clerk or 
 porters as to the ownership of the goods or the place from 
 whence they came. The evidence was excluded upon the 
 ground that such a custom, if proved, was unreasonable and 
 therefore invalid. " The custom," said Daniels, J., " offered 
 to be proved, that merchants sent invoices with goods sold 
 at the time of delivery, stating the names of the vendor and 
 vendee, the quantity, number packages and prices of the 
 goods, could have no effect upon the rights and obligations 
 of the parties, even if it had been received. For, as the 
 plaintiff did nothing which could be construed or received 
 as an indication that the goods were owned by the broker, 
 he could not be deprived of his property in them, or his 
 right to the price for which they were purchased for the 
 defendant, although the invoice delivered to the broker was 
 fraudulently suppressed by him, and for that reason never 
 exhibited to the defendant. The sale was made by a person 
 known by the defendant to be a merchandise broker and 
 speculator, and, as the goods were never placed in his posses- 
 sion by the plaintiff", the defendant should have ascertained 
 
 « Christian v. First Div. St. Paul &o. R. R. Co., 20 Minn. 21. 
 
142 THE USAGES OF TKADE AND THEIE 
 
 that circumstance and inferred from it that he acted simply 
 as a broker in the transaction, and not as a merchant selling 
 his own property. The fact that the broker deceived him, 
 and on account of such deception he failed to discover the 
 true relation he sustained to the business, was no fault of 
 the plaintiflf, since it was practiced without his authority or 
 knowledge, and he did nothing to render the deceit success- 
 ful. The custom proposed to be proven, that merchants 
 signed the receipts presented by carmen with goods, without 
 any inquiry by the receiving clerk or porter, as to the own- 
 ership or the place from whence they were received, was 
 entirely unreasonable because it placed the congequences of 
 one person's negligence or inattention upon another, in no 
 way connected with him, having no control over his conduct, 
 and for whose acts he could be in no proper sense responsi- 
 ble. A custom tolerating carelessness and inattention in the 
 ordinary affairs of business, would be inconsistent with the 
 legal as well as social duties, which one person in those 
 affairs owes to another. It would be not only unreasonable, 
 but opposed to all settled legal obligations to maintain the 
 validity of a custom like that the defendant proposed to 
 prove upon this subject. In the same line of defence, the 
 defendant was asked whether, at the time of the sale, there 
 was a custom of brokers to sell goods in their own name and 
 to receive pay therefor. If a custom sanctioning such a 
 course of conduct on the part of brokers, would be valid, the 
 inquiry was not broad enough to render the proof admissible ; 
 for it might very well have been so restricted as to time and 
 persons as to afford no grounds for supposing that the plain- 
 tiff had any notice or knowledge of its existence. The 
 defendant did not propose to prove a general usage upon 
 that subject, but simply a custom of brokers that might have 
 been unknown to all other persons. To render a custom 
 valid and binding upon a party to a transaction included 
 within it, the proof should show, or propose to show, if of 
 
ADMISSIBILITY AS EVIDENCE. 143 
 
 such long continuance or general application as reasonably 
 to warrant the conclusion that it was known to the party- 
 designed to be affected by it, or that he had actual notice or 
 knowledge of its existence.^ This, as well as the other 
 offers of proof, custom was defective in this respect, and 
 for that reason properly excluded. The effect of such a 
 custom, so far as it extended, would be to abrogate an exist- 
 ing well-established rule of law, designed for the protection 
 of persons selling their property through the agency of 
 brokers, and nothing less than actual or presumed assent to 
 its application should be allowed to render it obligatory.^ 
 To prove the existence of a custom, something more than 
 the judgment or conclusion of the witness called to support 
 it, is required. A custom is the result of usage, and can 
 only be properly shown by proof of the usage from which 
 it may be claimed to be derived. The inquiry in such 
 cases is not after the opinions of traders and merchants in 
 respect to the law upon a mercantile question, but for the 
 evidence of a fact, to wit, the usage or practice in the course 
 of mercantile business in the particular case."^ So is the cus- 
 tom of the master of a vessel to sell the cargo of a stranded 
 vessel without necessity f or authorizing persons to charge for 
 services never performed, or materials not furnished ;* or an 
 agent to violate instructions from his principal f or exempt- 
 ing carriers from responsibility for negligence f or favoring 
 the violation of a statute;'^ or conferring a right of action 
 
 "Southwestern Freight Co. v. Stan- 6 Pick. (Mass.) 145. StilhnanY.Hurd, 
 
 nard, 44 Mo. 71 ; Sipperly v. Stewart, 10 Tex. 107. 
 
 50 Barb. (N. Y.) 62; Walh v. Bailey, * Whitesides v. Meredith, 3 Yeates 
 
 49N.Y. 464. (Penn.) 318; Kendall v. Russell, 5 
 
 ^ Rogers v. Mechanics' Lis. Co., 1 Dana (Ky.) 501 ; see Walls v. Bailey, 
 
 Story (U. S.) 603 ; Higgins v. Moore, 49 N. Y. 464. 
 
 34 IST. Y. 417 ; Barnard v. Kellogg, 10 ^ Barksdale v. Brown, 1 N. & M. 
 
 Wall. (U. S.) 383. (S. C.) 519 ; Catlin v. Smith, 24 Vt. 85. 
 
 ^ Allen V. Merchants' Bank, 22 Wend. ^ Schooner Reeside,2S,\im.{lJ.S. ) 574 ; 
 
 {N. Y.) 215 ; Rogers v. Mechanics' Ins. Cole v. Goodwin, 19 Wend. (N.Y.) 272. 
 
 Co., ante; Lewis v. Marshall, 7 M. & ^ Dunham v. Dey, 13 John. (N. Y.) 
 
 G. 729. 44; Supervisors v. Van Clief, 1 Hun. 
 
 2 Bryant v. Commonwealth Ins. Co., (N. Y.) 45, 47. 
 
144 
 
 THE USAGES OF TRADE AND THEIR 
 
 upon contracts void under the statute of frauds, or barred by 
 the statute of limitations f or to transfer settlement rights by 
 death-bed donations without a will f or for factors to pledge 
 the goods of their principal ;^ or to construe a contract for 
 articles by the ton, as calling for 2,200 pounds for a ton 
 instead of 2,000 pounds as fixed by statute f or one that is in 
 restraint of trade f or that deprives a person of his property 
 without compensation, as a usage of a bank not to correct 
 mistakes in counting money unless it is discovered before the 
 party leaves the bank f or that exempts a person from liabil- 
 ity where he is made liable by statute, or makes him liable 
 where he is exempt therefrom by statute f or that permits a 
 person to commit acts of trespass upon others' property f or 
 permits an individual to appropriate to his exclusive use, 
 
 " Dunham v. Gould, 13 John. (N. 
 Y.) 367. 
 
 ' West/all V. Singleton, 1 Wash. 
 (Va.) 227. 
 
 ' Newbold v. Wright, 4 Rawle 
 (Penn.) 195. 
 
 " Evans v. Myers, 25 Penn. St. 114 ; 
 Green v. Moffatt, 22 Mo. 529. 
 
 3 Williams v. Oilman, 3 Me. 281. 
 
 * Gtdlatin v. Bradford, 1 Bibl. (Ky.) 
 207. Where a custom for the in- 
 spector of flour to take to his own 
 use the draft flour, drawn out to be 
 examined, was set up, it was held 
 that it was contrary to the policy of 
 the law ; that the statute providing 
 certain fees for inspection, thereby 
 impliedly forbade all other compen- 
 sation ; that it could not be more 
 ancient than the inspection laws, 
 and that they were not old enough 
 to be immemorial, though beyond 
 the actual memory of those then 
 living; that though this custom had 
 existed under the old laws, and the 
 legislature, in remodelling them, had 
 not expressly negatived the custom, 
 yet that this silence was not a legis- 
 lative recognition of it. And where 
 
 such inspector of flour claimed that 
 he could not inspect by boring a half- 
 inch hole iij the head of the barrel, 
 and that the custom allowed him to 
 use a larger auger ; the old law re- 
 quired him to inspect flour by a half- 
 inch hole, while the new code re- 
 quired all inspectors of flour, fish, 
 butter, &c., to inspect by a half-inch 
 hole or in some other satisfactory 
 manner, and required the hoops of 
 barrels offered for inspection to be 
 nailed. Held, that the code did not 
 change the method of inspection 
 established by the old law, and that 
 it was no answer to a mandamus to 
 compel the ipspector to inspect a 
 certain lot of flour by a half-inch 
 hole, that he could not so inspect it 
 properly, and that the custom 
 authorized him to use a larger hole, 
 as both the answer and the custom 
 would be in contravention of the 
 statute under which he held his 
 office. Belaplaine v. Cranshaw, 15 
 Gnatt (Va.) 457. 
 
 = Walker v. Trans. Co.. 3 Wall. (U. 
 S.) 150. 
 
 Waters v. Lilly, 4 Pick. (Mass.) 145. 
 
ADMISSIBILITY AS EVIDENCE. 
 
 145 
 
 rights which equally belong to all the public ;' or which per- 
 mits a person to take anything from another's land f or that 
 permits an intermediate carrier to deduct from back freight 
 earned, any deficiency in the cargo as shown by a compari- 
 son of the bill of lading with the measurement of the carrier 
 receiving it;^ or a usage which continues the liability of 
 common carriers after their liability is discharged by the 
 general law ;^ or that permits an agent to warrant the quality 
 of goods sold by him, although not authorized to do so by 
 his principal f or that seamen's wages, due under shipping 
 articles, shall be paid to the shipping agent, to be paid by 
 him to the boarding-house keeper bringing the seamen for 
 their benefit;^ or that excuses a person from liability for 
 negligent acts f or, indeed, any custom or usage that origi- 
 
 ' Freary v. Cooke, 14 Mass. 488. In 
 Wadley v. Davis, 63 Barb. (N. Y.) 
 500, it was held that a custom 
 among persons employed to cut 
 staves from another's bolts, should 
 retain for his own use, not only the 
 clippings and corner pieces, but the 
 culls, without the owner's consent, 
 is against public policy and void. 
 
 » Perley v. Langley, 7 N. H. 233. 
 A custom to take fish, or to take 
 sand from another's land for the 
 purpose of making mortar, in alieno 
 sole, is void. Waters v. £1%, ante. 
 A profit a prendre, is not a good cus- 
 tom. Liitlefield v. Maxwell, 31 Me. 
 134; Lupkin v. Haskell, 3 Pick. 
 (Mass.) 356. 
 
 ^ In Strong v. Orand Trunk R. R. 
 Co., 15 Mich. 206, such a custom was 
 set up, but the court held that it 
 was unreasonable and void, as it 
 prevented the carrier from showing 
 that there was an error in the bill of 
 lading, and would enable the inter- 
 mediate consignee to deduct for 
 discrepancies between the bill of 
 lading and amount delivered, which 
 
 occurred owing to erroneous meas- 
 urement or count when the bill was 
 signed, and because it would deprive 
 the carrier of his lien upon the cargo 
 for freights to the extent of the 
 amount thus improperly deducted. 
 ^ Reed v. Richardson, 98 Mass. 216. 
 
 2 Dadd V. Farlow, 11 Allen (Mass.) 
 426. 
 
 3 Metcalf V. Weld, 14 Gray (Mass.) 
 210. 
 
 * 3Iiller v. Pendleton, 8 Gray (Mass.) 
 547. In Cleaveland v. New Jersey 
 Steamboat Co., 5 Hun. (N. Y.) 523, 
 the defendant who was sued for 
 injuries resulting from a failure 
 properly to secure the gangway of 
 its boat, offered to show that it was 
 customary on the Hudson river on 
 passenger boats leaving a dock at> 
 New York, to wait for departure, 
 until the gates at the gangway are 
 put in. The evidence was excluded, 
 Merevin, J., saying, "Evidence of 
 the character of a structure, either 
 generally or as compared with simi- 
 lar structures used by others, and 
 evidence of whether accidents of 
 
 10 
 
146 THE USAGES OF TRADE AND THEIR 
 
 nates in, or is continued by violence, oppression and fraud, 
 or is contrary to the policy of tlie law, morality and religion, 
 is void and cannot be set up either to protect rights acquired 
 under, or defeat rights acquired in opposition to them.^ The 
 evidence to establish a custom must be uniform, and even an 
 occasional practice tolerated to some extent, in a certain 
 department of business for any given year, cannot be said to 
 be made out without distinct proof of some specific instances 
 during the period in question, (-y) The usage, to be binding, 
 must be general as to place and not confined to a particular 
 bank, (w) We have already seen that evidence of a usage of 
 trade is admissible to show that words used in a certain 
 written contract were used in a peculiar, technical or local 
 sense; (a;) but we must add here, while we are speaking of 
 the kind of evidence which is required to support a usage, 
 that the proof of such a use must be clear and irresistible, (y) 
 
 How Proved. 
 
 Sec. 79. A usage of a trade, in order to arise to the dig- 
 nity of a usage, recognized in law, must arise from a general 
 and prevailing course of that particular business,^ and cannot 
 
 that kind have ever happened have customary for colored people to form 
 been sometimes admitted. But that legal marriages, and that the major- 
 does not reach the present point. ity of them cohabit promiscuously, 
 It is in effect, an offer to show, as an as well among free colored persons 
 excuse for its negligence, a custom as slaves, in order to rebut the pre- 
 of others to be equally negligent. I sumption ofmarriage and legitimacy, 
 know of no principle to sustain it." The court rejected the evidence upon 
 ^ In Holmes v. Johnson, 42 Penn. the ground that such a custom, if 
 St. 159, in an action of ejectment proved, was contrary to public morals 
 brought to settle the disputed title and decency, and therefore void, 
 to land, the claimant being a negro ^ Tindal, J., in Hall v. Benson, 7 C. 
 born in another State, the defendant & P. 911 ; Mills v. Hallock, 2 Edw. Ch. 
 offered to prove that, in the region (N. Y.) 652. 
 whence the plaintiff came, it was not 
 
 [v) CheneryY. Goodrich, 10& Mass. (U.S.)539; h\it aeeVallancev.Dewar, 
 
 566; see also per Erie, C. J., 1 Camp. 503. 
 
 in Myers v. Dresser, 16 C. B. N. S. (x) Ante, p. 47. 
 
 646. (y) Lewisy.Marshall,7M..&G.729; 
 
 (w) Adams v. Otterback, 15 How. 8 Scott, N. E. 477. 
 
ADMISSIBILITY AS EVIDENCE. 147 
 
 be proved by evidence of opinion merely, but by instances in 
 wbicb it has been acted upon. A witness if asked whether 
 a certain usage exists in a particular trade, who answers yes, 
 but is unable to give instances in which to his knowledge it 
 has been acted upon, proves nothing.'' It is not sufficient to 
 show by a witness belonging to a particular trade, that he 
 does a certain thing in a particular way, but it must also be 
 shown that that is the usual mode adopted in the trade.^ 
 The course adopted by the trade should be shown,^ and evi- 
 dence of an isolated instance is insufficient.^ But the belief 
 of a witness in the existence of a business usage, as derived 
 from a knowledge of the business for a long series of years, 
 is competent to prove such usage, and it is immaterial that 
 the knowledge is derived wholly from his own business, if 
 that is sufficiently extensive to enable him to testify to the 
 fact of usage.^ It is not necessary that the witness should 
 be engaged in a particular trade or business to make him 
 competent to testify to a usage pertaining to it. It is suffi- 
 cient if he has acquired his knowledge by dealing with those 
 engaged in it.^ Thus, in the case last cited, it was held that 
 
 ' Hall V. Benson, ante ; Cunning- lish a usage of trade. Anstill v. 
 
 ham V. Fonblanque, 6 C. &. P. 44 ; Crawford, 7 Ala. 335. 
 
 Geary v. Meaghar, 33 Ala. 630. ^ Burr v. Sickles, 17 Ark. 428. 
 
 ' Pfiel V. Kemper, 3 Wis. 315. In Proof that in one instance the use 
 
 this case it was sought to fix the by a son of his father's name upon 
 
 value of professional services by negotiable paper discounted, at a 
 
 usage, and it was held not compe- bank, was known to and acquiesced 
 
 tent to ask a witness what he should in by him, does not authorize the 
 
 have charged for the same ser- introduction in evidence of subse- 
 
 vices ; but that the evidence must quent similar acts for the purpose of 
 
 be either to the value of the ser- showing an implied authority in the 
 
 vices or the customary rate of com- son to sign his father's name, with- 
 
 pensation. out proof that these also were known 
 
 * Riian V. Gardner, 1 Wash. 145; to and acquiesced in by the father. 
 
 Winthrop v. Ins. Co., 2 Id.7; Austin Greenfield Bank v. Crafts, 2 Allen 
 
 V. Williams, 2 Ohio 64. Proof that a (Mass.) 269. 
 
 particular mode of selling cotton in ^ Hamilton v. Nickerson, 13 Allen 
 
 Mobile "is very common," but that (Mass.) 351. 
 
 a few factors at that place would not * Grippin v. Rice, 1 Hills (N. Y. C. 
 
 do so, was held insufficient to estab- P.) 184. 
 
148 THE USAGES OP TRADE AND THEIR 
 
 the customary mode of banks in respect to certain matters, 
 may be proved by a person who has dealt with, but was 
 never employed by them. So the usual mode of trausfer- 
 ing notes, drafts, &c., may be proved by a witness who has 
 derived a knowledge thereof in any manner that enables him 
 to testify to the facts.* In order to establish the existence 
 of a general usage among banks, or, indeed, in any busi- 
 ness, the facts must be shown ; that is, the witness must 
 state what is done, and how, and not merely his opinion 
 deduced from the manner of dealing in a few instances in 
 particular banks.^ The mere opinion of witnesses that, in 
 certain transactions with an agent, it is customary to hold 
 him responsible, is not such evidence of a custom in that 
 respect as will exonerate the principal.® A usage may be 
 proved by parol, whether it arises from a public written 
 law or not,"' and the question as to whether or not it can 
 be established by the evidence of one witness, depends 
 upon the extent of his experience and knowledge in that 
 regard. But if one witness swears to the existence of a 
 certain usage, and another, equally competent and con- 
 versant with the trade or business to which it relates, the 
 existence of the usage is not established, especially where 
 other witnesses could be but are not called.* But generally, 
 when the evidence is conflicting, it should be submitted to 
 the jury to determine whether the usage is established or 
 not. But where, there is only the evidence of one witness, 
 and his testimony is not restricted to any particular time or 
 
 * Corwmercial Bank of Pennsylvania contract itself should be first pro- 
 
 V. Union Bank of New York, 19 Barb. duced, and then any incident to it 
 
 (N. Y.) 392. arising from usage can be proved 
 
 ^ Chesapeake Bank V.Swain, 29 Md. by parol, but incidents cannot be 
 
 483. proved first to establish the exist- 
 
 8 Geary v. Meaghar, 83 Ala. 680. ence of the contract, as to prove a 
 
 '' Drake Y.Hudson, 7 }!.& J. {Md.) custom of a place by which all 
 
 S99; Livingston \. Maryland Ins. Co., notes expire at a certain time. 
 
 7 Cranch (U. S.) 506. But where it Moore v. Eason, 11 Ired. (N.C.) L. 568. 
 
 is sought to prove a usage as an ^ Parrottv. Thacher, 9 Fick. (Mass.) 
 
 incident of a written contract, the 426. 
 
ADMISSIBILITY AS EVIDENCE. 149 
 
 place, and tends to establish a usage in conflict with the law 
 or other well recognized usages, it is proper for the court to 
 tell the jury not to regard it.^ A general usage in a par- 
 ticular place, regulating certain matters, as sales on commis- 
 sion, may always be shown when the usage is reasonable and 
 not contrary to law, and it will be presumed that every one 
 dealing where such usage prevails, knows of and deals in 
 reference to it,^ and if the usage is not so general as to 
 uphold such a presumption, his knowledge thereof may be 
 shown by the previous course of dealing between the parties, 
 and this furnishes sufficient evidence from which the jury 
 may infer knowledge of the usage.^ As a general rule, a 
 custom cannot be established from the testimony of one wit- 
 ness.^ Especially is this the case when the custom sought 
 to be established is one in favor of a certain town or locality. 
 Thus, in a case where it was sought to establish a custom for 
 all the inhabitants of a certain town to deposit sea-weed 
 upon the plaintiff's land, it was held that thirty inhabitants 
 having testified that they had done so for many years, it 
 was competent evidence from which the jury might find the 
 custom.* In all cases, in order to establish a customary 
 right, the evidence should not be less than that required to 
 establish a prescriptive right.^ The burden of proving 
 either a custom or usage of trade devolves upon the party 
 seeking the benefit of it,'' and must be shown by facts rather 
 than the belief or opinion of witnesses. Thus for a wit- 
 ness to state that a custom or usage exists, without stating 
 
 ' Jewell V. Center, 25 Ala. 498. it was held that a custom of a manor 
 
 ^ Divight\.Whitney,\5Vick.['M.ae,e,.) might be prove^d by one instance, 
 
 179 ; Goodnow v. Tyler, 7 Mass. 36. and in a suit by the lord to restrain 
 
 2 Walsh V. Frank, 19 Ark. 270. a copyholder from digging vitreous 
 
 -' Vait V. Rice, 5 N. Y. 150 ; Thomas sand on his own tenement, evidence 
 
 V. Graves, 1 Mill (S. C.) Const. 309; of a custom to dig it for twenty-seven 
 
 Wood w.Hicock,'Z Wend. (N. Y.) 501; years, and of a custom to dig sand 
 
 Bissell V. Ryan, 22 Hi. 566; Partridge generally, was sufficient to establish 
 
 y. Forsyth, 29 A.\-a,. 200. the custom. 
 
 * Knowles v. Dow, 22 N. H. 387. In « SmUh v. Fhyd, 18 Barb.(N.Y.)523. 
 
 Hanrner v. Chace, 4 DeG. J. & S. 626, « Caldecott v. Smythies, 7 C. & P. 808. 
 
160 THE USAGES OF TRADE AND THEIR 
 
 instances where it has been acted upon or applied, proves 
 nothing, because the whole matter rests in his opinion or 
 belief, but if he can speak from instances in which it has 
 been acted upon, facts are then presented from which the 
 jury can arrive at a conclusion.' While a custom or a 
 usage, at a place distant from that in which it is sought to 
 apply it, may be shown as tending to establish such custom 
 or usage at the place where it is sought to give it effect, yet 
 it has no such tendency unless instances, in which it has 
 been acted upon, are shown at such place.* But proof of a 
 single instance at the place in question, unless the effect of 
 such evidence is antagonized by proof of similar transactions 
 in similar establishments in which it was not acted upon." 
 To establish a custom of shippers on a certain river, it is 
 competent for a witness to state his practice in that respect 
 on all boats on the river.^ The fact that a person whom it 
 is sought to affect by a local custom or usage, lives at a great 
 distance from the place where the custom, &c., exists, does 
 not, if the transaction had its situs at such place, tend to 
 overcome the presumption that he knew of the custom and 
 contracts in reference to it, as it is regarded as reasonable to 
 presume that a person knows the customs and usages of a 
 place at which he traffics, wherever he may reside.^ In 
 'order to establish a usage of a certain trade or business, the 
 testimony should come from those engaged in the business, 
 or those who are familiar with the existence and application 
 of the usage, but the testimony of a single witness, who testi- 
 fies that he knew what had been the custom of his neighbors 
 
 ' Henderson v. Charnock, Peake 4. merchants, where merchandise is 
 
 " Brown v. Wilkinson, Co. Lit. 2706 ; sold on condition to deliver it to the 
 
 Milward v. Hilhert, 3 Q. B. 120. buyer before the condition is com- 
 
 * Citizens' Ins. Co. v. McLaughlin, plied with, and that such a change 
 
 53 Penn. St. 485 ; Sumner v. Lyton, of possession is not in fact a waiver 
 
 20 N. H. 384. of such condition, is admissible to 
 
 ^ Berry v. Cooper, 28 Ga. 543. establish the fact that the title to the 
 
 ^ Dwight V. Whitney, 15 Pick, property did not pass by such deliv- 
 
 (Mass.) 179; Ooodenow v. 7\/ler, 7 ery. Farlow v. Ellis, 15 Gray {Mass.) 
 
 Mass. 36. Proof of a custom among 229. 
 
ADMISSIBILITY AS EVIDENCE. 151 
 
 for several years, in relation to certain matters — as in the 
 case cited below, the manner in which farmers received their 
 supplies from merchants who advanced to them — is not suffi- 
 cient to establish a usage.^ 
 
 Proof Of. 
 
 Sec. 80. The evidence to establish a usage must be uni- 
 form, and even an occasional practice tolerated to a certain 
 extent in a certain department of business for any given 
 year, cannofe' be said to be made out, without distinct proof 
 of some specific instances during the period in question.* 
 Opinions or conclusions of witnesses ps to the effect of a 
 usage of trade either upon a contract or the legal rights of 
 parties is not admissible to show either the character or force 
 of the usage.^ In order to disprove the application of a 
 usage or of regulations of a board, as a Chamber of Com- 
 merce, having corporate powers, to appoint an inspector of 
 certain classes of goods, as in the case cited below provides, 
 one of the purposes of the rules of which is declared to be, 
 " To establish uniformity in the commercial usages of the 
 city," to a certain class of property, it is competent to show 
 that certain classes of articles are specified, as subject to the 
 rules or usage, but that the article in question is not named, 
 and the effect of this is to show the non-existence of such 
 usage as to the article not named.^ When a sale is made in 
 a place where a board of trade exists, which has established 
 certain rules relating to the sale of certain classes of prop- 
 erty, as cotton, and a purchaser being informed of such rules 
 does not dissent or object to them, but proceeds with the 
 contract, those rules become a part of the contract as much 
 as though they had been incorporated into it, although they 
 have not existed or been acted upon long enough to acquire 
 the character either of a custom or usage of the trade.' 
 
 3 SmUh V. Wriffht, 56 Ala. 417. » Kershaw v. Wright, 115 Mass. 361. 
 
 ' Cfemerj/v.GoodncA, 106 Mass. 566. ' Leigh v. Mobile &o. R. R. Co., 58 
 
 ^ Hashins v. Warren, 115 Mass. 514. Ala. 165. 
 
152 THE USAGES OF TRADE, THEIR OFFICE. 
 
 CHAPTER IV. 
 
 THE USAGES OF TRADE, THEIR OFFICE. 
 
 81. E\IDENCE OF COLLATERAL CUSTOMS. PRESUMPTION — PECULIAR SENSE, HOW 
 
 82. EVIDENCE FEOM ANALOGY OP CUSTOMS. SHOWN. 
 
 ?X EFFECT OF CUSTOM ON WRITTEN CONTRACT 95. USAGE EXPLAINING CONTRACT. 
 
 —THE RULE OF LAW— TO EXPLAIN. 96. UNDEFINED WORDS IN CONTRACT- USAGE 
 
 84. USAGE ALLOWED TO ADD TO CONTRACT. EKING OUT MEANING — NO AMBIGUITY. 
 
 86. USAGE DEFINING AND EXPLAINING— MEAN- 97. AMBIGUITY INTRODUCED BY USAGE — 
 
 ING OF WORDS EXPLAINED. WHERE USAGE CAN ARISE — UNUSUAL 
 
 85. PHRASES EXPLAINED BY USAGE. CONTRACT. 
 
 87. "days"— PITCH PINE TIMBER. 98. WHEN USAGE IS REFERRED TO IN CON- 
 
 88. EXPLANATION BY USAGE — LIEN ABEO- TRACT. 
 
 GATED BY. 99. ORDINARY PAROL EVIDENCE AND USAGE 
 
 89. USAGE IN RELATION TO BILL OF LADING. —RULES AS TO USAGE. 
 
 90. BILLS OF LADING AND OTHER MATTERS. 100. CLASSIFICATION— PRINCIPLE OF. 
 
 91. USAGE IN RELATION TO SALE OF HOPS— 101. USAGE ADDING INCIDENT — CONTRACT 
 
 MEANING OF "BALE," "WET OIL," VARIED BY. 
 
 "ABOUT," "LONDON." 102. OF CORPORATIONS, ACTS NOT CONFORMA- 
 
 92. SPORTING USAGE— PARTICULAR AVERAGE. BLE TO CHARTER. 
 
 93. NOTES AND BILLS. 103. TIME OF PAYMENT— USAGE VARIED BY 
 
 94. AS TO AMBIGUITY AND ADDITION OF TIME OF PAYMENT— CASES RECONCILED. 
 
 TEEMS — MEANING OP WEEKLY AC- 104. WARRANTY MODIFIED BY USAGE. 
 
 COUNTS IN BUILDING TRADE — HOW 105. PROOF OF USAGE TO ESTABLISH A WAR- 
 
 WORDS ARE TO BE UNDERSTOOD- BANTY. 
 
 Evidence of Collateral OustomB. 
 
 Sec. 81. We come now to an important question, which 
 must be considered in connection with the proof of a custom, 
 and that is as to whether evidence of a custom at a different 
 place is admissible as bearing on the question of a custom at 
 the locus in quo. In one case it was distinctly laid down 
 that to prove the manner of conducting a particular branch 
 of trade at one place evidence may be given to show the 
 manner in which the same branch is carried on at another 
 place ; BuUer, J., remarking, " If it can be shown that the 
 time would have been reasonable in one place that is a degree 
 of evidence to prove that it was so in another. The effect of 
 such evidence may be taken off by proof of a difference of 
 circumstances. It is very true that the custom of one manor 
 is no evidence of another, that has been determined in many 
 cases, {a) but the point here is very different ; it is a question 
 
 (a) Anglesey (Marquis) v. Hatlierton (Lord), 10 M. & W. 218. 
 
THE USAGES OF TRADE, THEIK OFFICE. 153 
 
 concerning the nature of a particular branch of trade." (5) 
 In another case it appeared that a plea of a custom of trade 
 in London might be supported by proof of a custom prevail- 
 ing in London and other English ports, (c) And in the 
 most recent case,{d) in which the fact that a custom existed 
 in the London fruit trade, that if the brokers did not give 
 the names of their principals in the contract, they were held 
 personally liable, evidence was given as to the existence of a 
 similar custom in the London colonial market. The court, 
 although it had some doubt, seeing that the case went fur- 
 ther than Nohle v. Kennoway,{e) decided that it was admis- 
 sible, on the general principle that it would be useful in 
 elucidating the truth,(/) and because, in the words of Black- 
 burn, J., " it struck me, where the question was, does a 
 broker in the fruit trade, if he does not disclose his princi- 
 pal's name, incur a personal liability in consequence ? that 
 it would be proper evidence for a jury to consider and weigh 
 that such a custom existed in other trades, and that in those 
 other trades the broker did incur a personal liability." (_9') 
 In a Pennsylvania case,^ a policy was issued by the defend- 
 ant upon a "patent leather manufactory" in Pittsburgh, 
 Pennsylvania, belonging to the plaintiff. The policy pro- 
 vided that benzole, in quantities not exceeding five barrels, 
 might be kept in a shed detached from and in the rear of 
 the main building, and nowhere else on said premises. It 
 was well known that benzole was an important and essential 
 article in the prosecution of the business and was necessarily 
 and universally used. The custom of the plaintiff's work- 
 men was to carry an open bucket of it into the factory as 
 often as wanted, and upon the morning of the fire, a work- 
 man carried an open bucket of it into the factory and set it 
 
 (6) Noble V. Kennoway, 2 Dougl. (e) 2 Dougl. 510. 
 
 510, at p. 512. (/) Per Cockburn, C. J., 7 L. E. Q. 
 
 (c) Milward v. Hibhert, 3 Q. H. 120. B. at p. 130. 
 
 [d] Fleetv.Murton,7'L.'R.q,.B.126. [g) 7 L. R. Q. B. at p. 134. 
 
 1 Citizens' Ins. Co. v. McLaughlin, 53 Peiin. St. 485. 
 
154 THE USAGES OF TEADE, THEIR OFFICE, 
 
 down, when it almost instantly ignited, and, communicating 
 the flames to the building, it was burned down. To prove 
 that the method of carrying the benzole into the factory in 
 open buckets was according to the custom of the trade, it 
 was shown by the testimony of a witness that it was the 
 custom in twelve similar factories in Newark, New Jersey, 
 and no evidence being introduced to show a contrary custom 
 in Pittsburgh, where the plaintiff's factory was located, it 
 was held sufficient to establish the usage in Pittsburgh. 
 Woodard, J., upon this point, said: "We think there was 
 no error in the admission of the evidence of Harden. He 
 gave an intelligible account of the mode of using benzole in 
 twelve similar factories in Newark, New Jersey, and said it 
 was brought in and used from cans and buckets. If any 
 other custom had been established at Pittsburgh it could have 
 been shown, but in the absence of all other evidence on the 
 subject, this was competent to fix the usage of the business." 
 Thus it will be seen that while the usage of a certain trade 
 in one locality is not necessarily the usage of the same trade 
 in another, yet such usage may be proved, and, unless a dif- 
 ferent usage is shown to exist in the locality to which it is 
 sought to apply it, it will be presumed to be usage of the 
 trade in that locality. In a New Hampshire case,^ evidence 
 that a custom among iron manufacturers, to warrant the 
 quality of all the goods made by them, was held to be estab- 
 lished by proof of such a custom in three similar establish- 
 ments in the vicinity, there being no evidence of a contrary 
 custom in any other similar establishment. 
 
 Evidence from Analogy of Customs. 
 
 Sec. 82. Again, on this question of evidence from anal- 
 ogy, the case of Falkner v. Earle,{h) may be referred to. In 
 that case it appeared that there was a custom of Liverpool of 
 allowing a discount of three months on freights payable on 
 
 2 Sumner v. Tyson, 20 N. H. 384. 
 [h] 3 B. & S. 360 ; 32 L. J. Q, B. 124. 
 
THE USAGES OF TRADE, THEIR OEEICE. 155 
 
 all bills of lading from ports in North America ; it also 
 appeared that when Texas was annexed to the United States 
 of America, in 1846, the custom was in practice extended to 
 ports in that territory, and it was held that this was evidence 
 from which a jury might infer that the custom extended to 
 ports in California after that country was also associated with 
 the United States by annexation. 
 
 BflFeet of Custom on Written Contract— The Rule of Law— To 
 Explain. 
 
 Sec. 83. We now come to the question as to the effect of 
 a custom upon a written contract. We have seen that it 
 may engraft terms upon a written contract, and that it may 
 not contradict such a contract, and hence arises the question 
 which we have here to consider as to what evidence is admis- 
 sible in such cases, and from a consideration of the many 
 cases which have been decided to come to a definite conclu- 
 sion as to the exact meaning of the rule of law. It must be 
 remembered that customs, such as we are dealing with here, 
 are always questions of evidence, and hence it arises that 
 the main question for us in this place is as to the admissi- 
 bility of the evidence which is offered in their support. The 
 rule is that evidence of particular commercial usages is admis- 
 sible either to add terms to a contract, as in those cases con- 
 cerning the time for which the underwriters' liability in 
 respect of goods shall continue after the arrival of the ship,(i) 
 
 (i) Noble V. Kennoway, 2 Dougl. city for merchants, who had made 
 510; see also Ougier v. Jennings, 1 advances on goods consigned to 
 Camp. 503, n.; see also Law of Scot- them from other States, to ship them 
 land, Bell's Com. b. 3, pt. 1, ch. 3. In to foreign ports for sale ; and by such 
 an action by merchants in Kentucky proof to affect the amount of recov- 
 against commission merchants in ery, or defeat the action. Wallace v. 
 New Orleans, for the proceeds or Bradshaw, 6 Dana (Ky.) 382. A cus- 
 value of goods consigned to them tom which authorizes an agent hold- 
 for sale, on which they had made ing gunny bags and inspected pork, 
 advances, and as to which there was purchased for his principal, to de- 
 no special agreement. Held, that it liver, not the specific articles but 
 was competent for the defendants to others of equal quantity and value, 
 prove that it was the custom of that cannot be recognized. Under such 
 
156 THE USAGES OF TKADE, THEIR OFFICE. 
 
 ■or to explain its terms, as was done in Ude \.Walters,{j) 
 where it was shown that the Gulf of Finland, although dis- 
 tinguished by geographers from the Baltic, is not so distin- 
 guished by persons in trade, or as in another case, where it 
 was proved that in mercantile usage good barley and fine 
 barley did not mean the same thing, (y?;) 
 
 Usage Allowed to add to Contract. 
 
 Sec. 84. At first in the history of this branch of the 
 science of evidence we find that there seems to have been 
 some reluctance upon the part of judges to allow usage to do 
 more than explain in cases where there was evident ambi- 
 guity. But it soon came to be understood that it was as 
 necessary to allow usage to explain what was purposely not 
 said as what was carelessly ill expressed, and that many per- 
 sons were purposely reticent of words, as they were aware 
 of the existence of the usage. Hence it came that it was 
 allowed not only tb explain but to add a tacitly implied 
 incident to the contract in addition to those which were 
 •expressed. First, then, with regard to the supposed explana- 
 tion of contracts by means of usage. In order to affect a 
 person with the obligations imposed by usage or custom, it 
 is essential to show either that he knew of its existence, or 
 ■circumstances from which such knowledge can be presumed.^ 
 
 Sk custom the property could not be (J ) 3 Camp. 16. 
 
 identified if the agent should fail ; (/c) Hutchinson v. Botvker, 5 M. & 
 
 and, after a sale in violation of W. 535; see also Fox v. Parker, 4A 
 
 •orders, his interest becomes adverse Barb. 541; Collyer v. Collins, 17 Abb. 
 
 to that of his employer. Foley y. Pr. 467; Waeher y. Quenzer, 29'^. Y. 
 
 Be?/, 6 La. An. 760. 547. 
 
 " Boardman v. Qallard, 1 Hnn. (N. Ohio v. Canson, 62 Mo. 209; Porter v. 
 
 Y.) 220; Ripley v. JEtna Ins. Ck>. 30 fli&, 114 Mass. 106 ; Sawtelle wDrew, 
 
 _N. Y. 136; Higgins v. Moore, 84 Id. 122 Mass. 228; Central R. R. Co. v. 
 
 417 ; Duguid v. Edwards, 50 Barb. Anderson, 58 Ga. 393 ; Butta-worth v. 
 
 (N. Y.) 288; Wadley v. Davis, 63 Id. Volkenning, 1 S. C. 450. A person 
 
 600; Read v. Bel. & Hud. Canal Co. who makes a contract is not bound 
 
 Z Lans. (N. Y.) 213; Boardman v. by the usage of a particular business, 
 
 Volkening, 4 T. & C. (N. Y.) 650; unless it is so general as to furnish a 
 
THE USAGES OF TKADE, THEIK OFFICE. 
 
 157 
 
 In other words, a person cannot be affected by a usage,, 
 unless he has personal knowledge of its existence, or it is 
 shown to be so notorious, uniform and well established that 
 he ought to have known it, and that his knowledge thereof 
 will be conclusively presumed.* But when the usage is 
 established, and circumstances that charge the parties with 
 knowledge thereof, it will govern a contract presumed to- 
 have been made in reference to it, however partial or local 
 
 presumption of knowledge, or it is 
 proved that he knew it. Stevens v. 
 Reeves, 9 Pick. (Mass.) 198; Wood v. 
 Hickok, 2 Wend. (N. Y.) 501. ■ And 
 in the case of a private usage, or the 
 usages of an individual, actual knowl- 
 edge must be shown. Nanatuck Silk 
 Co. V. Fair, 112 Mass. 354 ; Goodnow v. 
 Parsons, 86 Vt. 46 ; Burger v. Farmers, 
 &c., Ins. Co., 71 Penn. St. 422. 
 
 * Walsh V. Mississippi Ins. Co. 52 
 Mo. 434. In Boardman v. Volkening, 
 ante, the question was, whether fur- 
 niture was sold by a contract as to 
 its price, and in order to prove that 
 it was not, proof was offered to show 
 that by a usage among cabinet work- 
 ers they could not be employed to 
 manufacture furniture except by the 
 day, and the court held that a pur- 
 chaser having no knowledge of the 
 regulation could not be affected 
 thereby. See also Wadley v. Davis, 
 ante ; South Western Freight, &o., Co. v. 
 Stannard, 44 Mo. 71. In Wilson v. 
 Baurman, 80 111. 493, the court below 
 instructed the jury that if there was 
 a custom among architects in a cer- 
 tain city at the time the contract was 
 made, it entered into the contract, 
 &c. This instruction was held bad 
 because it ignored the essential ele- 
 ment of notoriety or ancientness, 
 and authorized the jury to act upon 
 it, whether the parties to be affected 
 by it knew of its existence, or could 
 
 be fairly presumed to know of it or 
 not. A shipper of goods is charge- 
 able with notice of an established 
 and well known usage, existing in a 
 particular trade, in regard to the 
 stowage of a general ship, both as to- 
 the manner of stowing and as to the 
 different articles to be stowed to- 
 gether. And if the shipper, in such 
 case, gives no special instructions, 
 and his goods are stowed in con- 
 formity with such usage, he is 
 deemed to have assented to such 
 mode of stowage, and cannot, in case 
 his goods are injured on the voyage, 
 in consequence of the mode of stow- 
 age, set that up as a ground of com- 
 plaint or as a foundation for depriv- 
 ing the owners of their freight. Bax- 
 ter v. Leland, 1 Blatch. (U.S. CO.) 526. 
 A charge of negligence in stowing 
 goods shipped for transportation may 
 be repelled by proof of a custom to- 
 stow such goods, for such a voyage, 
 in the manner complained of Bar- 
 ber V. Brace, 3 Conn. 9. Evidence of 
 a custom of merchants, that the 
 feight of money received on board 
 a ship by the master is his perqui- 
 site, and that he, and not the ship 
 owner, is liable on the contract, was 
 held admissible in a suit against 
 such owner for money taken on 
 freight by the master at a West India 
 island. Halsey v. Brown, 3 Day 
 (Conn.) 346. 
 
158 THE USAGES OF TKADE, THEIK OFFICE. 
 
 its application may be.^ The question as to whether a usage 
 shall control or be deemed a part of a contract or not, 
 depends upon the intention of the parties, to be determined 
 from all the circumstances of the negotiation, and unless the 
 usage is known to the parties, or is so general and notorious 
 as to warrant a presumption of knowledge of it, of course 
 an intent to be controlled by it cannot exist." In order to 
 become a law of a trade, and make it obligatory upon those 
 contracting in reference to matters to which it relates, it 
 must be shown to be certain, uniform, reasonable and so gen- 
 erally known and of such long existence, that the parties 
 must be presumed to have known of and contracted in ref- 
 erence to it, or it must be shown that the parties actually 
 knew of its existence,' and the question as to whether the 
 parties had or ought to have had knowledge of it is a ques- 
 tion for the jury.^ Thus, where a usage at an inn for guests 
 to leave their money or valuables at the bar, or with the 
 keeper of the house,- or his clerk, it was held not to be bind- 
 ing upon a guest unless it was shown that he had knowledge 
 
 « Appleman v. Fisher, 34 Md. 450. Mason, 6 Md. 608 ; Trott v. Wood, 1 
 
 Usages of a particular trade are pre- Gall. (U. S.) 443 ; Harper v. Pound, 
 
 sumed to be known to those engaged 10 Ind. 32; Christian v. Bowman, 1 
 
 in it, and to have entered into any Hill (S. C.) 270; Saint v. Smith, 1 
 
 contract therein. Carter v. Philadel- Cald. (Tenn.) 51 ; Walker v. Barron, 
 
 phia Coal Co., 77 Penn. St. 286. But 6 Minn. 508 ; Com. v. Malay, 57 Penn. 
 
 a claim destructive of a contract, or St. 291 ; Bavis v. New Brig, Gilp. (U. 
 
 the subject of a grant, cannot be set S.) 486 ; Lewis v. Thatcher, 15 Mass. 
 
 upbyway of usage, 79Penn. St.242; 433; Foy \. Leighton, 22 Tii. H. 71; 
 
 Leigh v. Mobile S. R. R. Co., 58 Ala. Martin v. Hull, 26 Mo. 386 ; Tauro v. 
 
 165. Cassm,lN. &M. (S.C.)176; Thomas 
 
 "Carthman v. Salem Ins. Co., 14 v. O'lfTOe?-, 1 Mills (S. C.) Const. 303; 
 
 Bush. (Ky.) 197 ; Hinton v. Coleman, Consequa v.Willings, Pet. (U. S. 0. C.) 
 
 45 Wis. 165. 230 ; Somerby v. Tappan, Wright 
 
 ' SmUh V. Gibbs, 44 N. H. 835 ; Col: (Ohio) 573 ; United States v. Buval, 
 
 lings v. Hope, 3 Wash. (Va.) 150 '; Gilp. (U. S.) 356; Buck y. Grimshaw, 
 
 Shackleford V. Mississippi N.R.R. Co., 1 Edw. Ch. (N. Y.) 147; Smith v. 
 
 37 Miss. 202; Rapp v. Palmers, 3 TFn^H 1 Cai. (N. Y.) 45. 
 
 Watts (Penn.) 178 ; Register v. Spen- » Berkshire Woolen Co. v. Proctor, 7 
 
 cer, 24 Md. 520; Thomas v. Graves, 1 Gush. (Mass.) 417. 
 Mills (S. 0.) Const. 308; Foley v. 
 
THE USAGES OF TRADE, THEIE OFFICE. 
 
 159 
 
 or actual notice of it,^ and generally it may be said as to 
 private or usages of individuals, they are only binding upon 
 those who have actual knowledge thereof. Thus, the custom 
 of a merchant to charge interest on monthly rests is not 
 binding on a debtor unless it is shown that he knew of the 
 custom.-^ The distinction between a custom, as such, and a 
 
 ^ Berkshire Woolen Co. v. Proctor, 
 imte. Evidence of a usage among 
 brokers to sell stock hypothecated, 
 and return the same kind of stock 
 on the payment of the instrument 
 for which it was hypothecated, is 
 inadmissible. Allen v. Dykers, 3 Hill 
 (N. Y.) 593. So evidence of a cus- 
 tom among brokers to sell the stock 
 of their principals upon a failure to 
 repay advances, is not admissible to 
 vary the terms of a contract. Tay- 
 lor V. Ketchum, 5 Kobt. (N. Y.) 507. 
 But as to all valid usages, a person 
 dealing with brokers is presumed to 
 know of and contract in reference 
 to them, and especially is this the 
 case where the contract is expressly 
 made subject thereto, and in such a 
 case the broker may, where stock is 
 purchased on a margin, sell at the 
 stock exchange without notice to 
 the buyer, if such is the usage on 
 the buyer's failure to furnish a suffi- 
 cient margin. Baker v. Drake, 66 
 N. Y. 518. 
 
 ^ Goodnow V. Parsons, 36 N. 46 ; 
 Learson v. Hayward, 1 Spears (S. C.) 
 249. In G^-een v. Disbrow, 7 Lans. 
 (N. Y. S. C.) 392, it was held that 
 evidence as to a creditor's custom 
 in charging interest was admissible. 
 Read v. McAllister, 8 Wend. (N. Y.) 
 109 ; Eastenly v. Cole, 3 N. Y. 502, but 
 that, in the particular case, it was 
 not sufficient to charge the debtor, 
 because it did not appear that the 
 debtor knew of such custom before 
 the account accrued. Miller, P. J., 
 
 in commenting upon the point said, 
 " The referee erred in allowing inter- 
 est because the proof does not estab- 
 lish the time when the plaintifi' 
 communicated to the defendant that 
 such was his custom. The evidence 
 of the defendant's knowledge is very 
 slight. The plaintiff swears that he 
 told the defendant that his custom 
 was to charge interest after six 
 months, and he charged him interest 
 on his account, and he paid it ; when 
 the plaintiff told him, and when he 
 paid the account, is not stated. If 
 this was after the whole account accrued 
 it could be of no avail. If before, it 
 should have been so stated." Watt 
 V. Hooh, 25 Penn. St. 411. In Hal- 
 ford v. Adams, 2 Duer. (N. Y.) 471, 
 the court say, "A special and partic- 
 ular usage of one party is not bind- 
 ing upon the other, without proof 
 of actual knowledge on his part of 
 its existence and terms." In Ma- 
 governing V. Staples, 7 Lans. (N. Y.) 
 145, the plaintiff attended a fair of 
 the Jefferson Agricultural Society, 
 and while quietly seated with his 
 family upon seats established upon 
 the grounds, he was forcibly removed 
 by the defendant. In an action for 
 assault and battery brought against 
 the defendant, for forcibly ejecting 
 the plaintiff from the fair grounds 
 and seats, the defendant offered to 
 show a custom of the society to 
 charge for the use of the seats, but 
 did not show, or offer to show, that 
 the plaintiff knew of this custom, or 
 
160 
 
 THE USAGES OF TEADE, THEIR OFFICE. 
 
 usage, in this respect, is that a custom becomes a law of a 
 trade or business from immemorial and universal acquies- 
 ence in a neighborhood or country, and consequently must 
 be ancient. In other words, a usage from immemorial exist- 
 ence ripens into a custom,^ while a usage, if known to the 
 parties to a transaction to which it relates, is obligatory and 
 binding, however recent its origin f and the only object in 
 proving its long existence, general prevalence and uniformity 
 of application, is to raise a presumption of knowledge when 
 actual knowledge of its existence on the part of the person 
 to be affected by it cannot be shown.* The fact that in a 
 certain trade or business certain things are always done in 
 a certain way, furnishes the basis from which a jury has a 
 right to presume that the parties to a contract relating to 
 
 any facts from which his knowledge 
 thereof could be inferred, and it was 
 held that such usage was not admis- 
 sible to excuse the defendant from 
 all liability, but that it was admissi- 
 ble in connection with proof that the 
 plaintiff, while occupying the seats, 
 was notified of the usage, and after 
 such notice refused to leave, or upon 
 the question of malice. Mullin, P. J., 
 upon this point said, " The court be- 
 low properly excluded of the custom 
 of the society to charge for -the use 
 of the seats, the defendant not show- 
 ing, or offering to show, that the 
 plaintiff knew of the custom or was 
 chargeable with knowledge of it. It 
 does not appear that the plaintiff 
 had ever before attended a fair of 
 the society, or that he had lived in 
 the county six months. It seems to 
 me, however, that the offer to show 
 that the society had established a 
 charge of fifteen cents for the use of 
 seats, and instructed the superin- 
 tendent to collect the same, was im- 
 properly excluded. It was not ad- 
 missible to charge the plaintiff with 
 
 knowledge of the regulations or of 
 the instructions; but it was import- 
 ant to the defendant's defence to 
 show that, in demanding pay of the 
 plaintiff for the use of the 5eats, he 
 was carrying into effect the instruc- 
 tions and regulations of the society. 
 If there had been no authority to 
 demand pay, it would be difficult for 
 the defendant to find for removing 
 the plaintiff. It lay at the very 
 foundation of the defence." Where 
 the plaintiff relied upon a parol ac- 
 ceptance of a bill of exchange, evi- 
 dence of a custom of the defendants 
 to accept always in writing and 
 make corresponding entries on their 
 books, was held competent as tend- 
 ing to show in this case that the bill 
 had not been accepted. Smith v. 
 Clark, 12 la. 32. 
 
 ^ Commonwealth v. Maloy, 57 Penn. 
 St. 291. 
 
 ^ Tovmsend v. Whitby, 5 Harr. (Del.) 
 55. 
 
 » Martin v. Hall. 26 Mo. 886 ; Walker 
 v. Barron, 6 Minn. 508. 
 
THE USAGES OF TRADE, THEIR OFFICE. 
 
 161 
 
 such trade, within the application of such usage, had knowl- 
 edge of the usage, if it affects the transaction and contracted 
 in relation to it;^ consequently, unless excluded by the terms 
 of the contract, it enters into and is regarded as a part of it, 
 as much as though it had been written therein.^ But, how- 
 
 = White V. Fuller, 4 Hun. (N. Y.) 
 631; Barrett v. Williamson, 4 McLean 
 (U. S.) 697; Myers v. Perry, I La. An. 
 372 ; Lebanon v. Heath, 47 N. H. 353 ; 
 Clanmorgan v. Guisse, 1 Mo. 141 ; 
 Perkins v. Jordan, 36 Mo. 23. AVit- 
 nesses may be examined to prove 
 the course of a particular trade, but 
 not to show what the law of that 
 trade is. Ruan v. Gardner, 1 Wash. 
 (U. S. C. C.) 145; Winthrop v. Union 
 Ins. Co., 2 Wash. (U. S. C. 0.) 7; 
 Austin V. Taylor, 2 Ham. (Ohio) 64. 
 
 » Hursh V. North, 40 Penn. St. 241 ; 
 StuUz V. Dichey, 5 Binn. (Penn.) 287. 
 In Baker v. Squier, 1 Hun. (N. Y.) 
 443, the defendant purchased a quan- 
 tity of soda-ash, which was described 
 in the contract as ''225 tons Kurtz, 
 forty- eight to fifty per cent, carbon- 
 ated soda-ash." The ash was to be 
 shipped from Liverpool to New 
 York at the rate of twenty-five tons 
 monthly, and each shipment was to 
 be treated as a separate contract. 
 The vendors notified the plaintiff of 
 the first shipment, stating " the test 
 is forty-eight per cent.'' The defen- 
 dant refused to receive the property 
 upon the ground that the test was 
 only forty-eight per cent., when the 
 contract called for forty-eight to fifty 
 per cent. The plaintiff tendered the 
 soda-ash, with a certificate of the test 
 purporting to be issued by Hussan & 
 Arrat, showing the test to be forty- 
 eight. Evidence was given on the 
 part of the plaintiff tending to show 
 an established and universal custom 
 of trade, by which the terms used in 
 
 the contract, were understood to 
 mean, that the soda-ash was tmder- 
 stood to mean that the soda-ash was 
 to be of the manufacture of one 
 Kurtz, and was to possess at least 
 forty-eight per cent, of alkali, which 
 was to be according to the test of cer- 
 tain English chemists, recognized 
 and known in the trade, whose cer- 
 tificates were attached to the invoices 
 and received as evidence of the test; 
 and that the test of forty-eight was 
 understood to satisfy the contract. 
 Messrs. Hussan & Arrat were chem- 
 ists known to dealers in the article, 
 and their certificate was recognized 
 in the trade as a compliance with 
 the contract. Talcott, P. J., in pass- 
 ing upon the admissibility of this 
 custom in evidence, said " We think 
 the custom was properly admitted in 
 evidence. A person engaged in a 
 particular trade is to be presumed to 
 be acquainted with the usages of the 
 trade, and the contracts in reference 
 to them ; and the usage of the trade 
 in which the contract is made may 
 be shown to explain the meaning of 
 a particular contract, but not to vary 
 its plain terms. The figures, forty- 
 eight to fifty per cent, convey no 
 meaning to a person ignorant of the 
 subject-matter of the contract, and 
 of the usage of the trade in which it 
 was made. And the evidence of the 
 custom must explain the meaning of 
 those terms or figures when used in 
 such a contract, and did not tend to 
 vary its import, so far as its terms 
 were expressed." Burnham v. Ayer, 
 
 11 
 
162 
 
 THE USAGES OF TKADE, THEIR OFFICE. 
 
 ever well established a custom or usage may be, it cannot be 
 admitted to control or vary the express terms of a contract/ 
 
 30 N. H. 182 ; United States v. Kean, 
 1 McLean (U. S.) 429; InglebrigU v. 
 HammoTid, 19 Ohio 337 ; Ladwich v. 
 Ohio Ins. Co., 5 Id. 436 ; Lampson v. 
 Ouezam, 6 Part. (Ala.) 123; United 
 States V. Arredojido, 6 Pet. (U. S.) 715. 
 In Steward v. Scudder, 24 N. J. L. 96, 
 it was held that to vary the ordinary 
 meaning of plain words in a con- 
 tract, as, to make the word "cash" 
 mean "credit," the evidence must 
 show a special custom, precise, defi- 
 nite and universal where it exists. 
 The rule as generally expressed is, 
 that a usage or custom in order to 
 be imported into a contract by infer- 
 ence must be so far established and 
 so far known to the parties that it 
 must be supposed that 'their con- 
 tract was made in reference to it. 
 For this purpose, the custom or 
 usage must be established, and not 
 casual, uniform, and not varying, 
 general, and not personal, and must 
 be known or presumed to be known 
 to the parties. Martin v. Maynard, 
 16 N. H. 165 ; Sipperly v. Steward, 50 
 Barb. (N. Y.) 62; Baker v. Squier, 1 
 Hun. (N. Y.) 448; Goodnow v. Par- 
 sons, 36 N. 46; Wood v. Hieock, 2 
 Wend. (N. Y.) 501; Bank of Colum- 
 bia V. Fitzhugh, 1 H. & G. (Md.) 239 ; 
 Barber v. Brace, 3 Conn. 9 ; Senoall v. 
 Gibhs, 1 Hall (N. Y.) 612 ; Duguid v. 
 Edwards, 50 Barb. (N. Y.) 188 ; Stev- 
 ens V. Reeves, 9 Pick. (Mass.) 198; 
 Kendall v. Russell, 5 Dana (Ky.) 501 ; 
 Haven v. Wentworth, 2 N. H. 198. 
 
 ' Holmes \. Pettingill, 1 Hun. (N.Y.) 
 316 ; Meaghar v. Lufkin, 21 Tex. 383 ; 
 Sweet V. Jenkins, 1 E. I. 147 ; Cadwell 
 V. Meek, 17 111. 220 ; Cooper v. Purvis, 
 1 Jones (N. C.) L. 140; Renner v. 
 Bank of Columbia, 9 Wheat. 581 ; 
 
 Wadsworth v. Alcott, 6 N. Y. 64; Ran- 
 kins V. Am,erican Ins. Co., 1 Hall (N. 
 Y.) 619; George v, Bartlett, 22 N. H. 
 496; Wheeler v. Nurse, 20 N. H. 220; 
 Sleight V. Rhinelander, 1 Johns. (N.Y.J 
 192; Macomher v. Parker, 13 Mass. 
 175 ; Barlmv v. Lambert, 28 Ala. 704 ; 
 Lawrence v. Gallagher, 10 J. & S. (N. 
 Y.) 309 ; Fanners' &o. Bank v. Logan, 
 74 N. Y. 568 ; Bank of Commerce v. 
 Bissell, 72 Id. 615 ; Van Alstyne v. 
 jEtna Ins. Co., 14 Hun. (N.Y.) 360. In 
 the latter case the plaintiff's assignor 
 took out a policy on a canal boat, 
 containing a provision that the "pol- 
 icy shall become void if any other 
 insurance is or shall be made upon 
 the boat hereby insured, which, 
 together with this insurance, shall 
 exceed one thousand dollars." The 
 policy permitted the boat to " navi- 
 gate the inland lakes, rivers and 
 canals of the State of New York, and 
 the harbor of the city of New York 
 usually navigated by vessels of this 
 class engaged in the common carry- 
 ing trade, including the North river 
 where it forms a part of the vessel's 
 continuous trip ; also the East river 
 as far as the southwesterly end of 
 Blackwell's Island." There was also 
 an indorsement on the policy as fol- 
 lows: "Privileged to run to Phila- 
 delphia and the waters of New 
 Jersey." During the life of the 
 policy the plaintiff's assignor took 
 out a policy for $1,000 for six months 
 on the same boat, with the same 
 privilege as to business, except that 
 in the body of the policy the words 
 "also to run to Philadelphia, Fort 
 Johnson and Elizabethport " were 
 written. The boat was lost in the 
 Hudson river during the life of both 
 
THE USAGES OF TKADE, THEIR OFFICE. 
 
 163 
 
 or, as is said in some of the eases, to vary its legal im- 
 
 policies. To defeat the effect of the 
 provision as to other insurance in 
 the defendant's policy, the plaintiff 
 introduced evidence to the effect 
 that there is a general custom to 
 take out what is called a " trip 
 policy," whereby a party desiring to 
 navigate his vessel beyond the points 
 covered by his yearly or time policy, 
 takes out a policy for the particular 
 trip he desires to make; and that, 
 according to the custom, it is sup- 
 posed while the boat is outside, 
 within those limits permitted by it, 
 and revives again when she returns 
 ■within those limits. Talcott, C. J., in 
 denying the validity of the custom, 
 said : " According to any intelligent 
 account of the custom, as given by 
 the testimony, the trip policy and 
 the time policy could not be in force 
 at the same time : otherwise it would 
 render the condition against further 
 insurance ineffectual ; and a us4ge 
 or custom in hostility to the express 
 provisions of a contract can be of 
 no avail against the contract, and, 
 so far as that contract is con- 
 cerned, is void. Mutiud Safety Inn. 
 Co. v. Bom, 2 N. Y. 235 ; Mankham 
 V. Jandon, 41 N. Y. 235." Upon the 
 general proposition stated in the 
 text, see Atkinson v. Allen, 29 Ind. 
 375; Corwin v. Patoh, 4 Cal. 204; 
 Randall v. Rotch, 12 Pick. (Mass.) 
 107; Sanford v. Rawlings, 43 111. 92; 
 Sigworth v. Mclntyne, 18 111. 126 ; Foy 
 V. Strawn, 82 111. 295 ; Stebbins v. 
 Brown, 65 Barb. (N. Y.) 274; Mum 
 V. Eage, 1 E. D. 8. (N. Y.) 619 
 Beak v. Terry, 2 Sandf. (N. Y.) 127 
 Holmes v. Pettingill, 60 N. Y. 646 
 Wall V. East River Ins. Co., 7 Id. 
 370; Vail v. Rice, 5 Id. 155; Haines 
 V. Lawrence, 4 N. Y. 345. Where the 
 
 language of a written instrument is 
 clear and unmistakable in its terms, 
 evidence of a usage to give it a dif- 
 ferent meaning is not admissible. 
 Thus, where a creditor wrote to his 
 debtor, saying, "We must request 
 you to remit the amount," it was 
 held that this did not authorize 
 evidence of a local usage or underp 
 standing to give a meaning to the 
 terms of the letter different from 
 that which they obviously bear. 
 Gross V. Oriss, 3 Graft (Va.) 262. 
 Grain was sent by a country dealer 
 to commission merchants in New 
 York, with orders to sell for cash. 
 It was sold and delivered, and a 
 check for the amount of purchase 
 money sent to the dealer, before it 
 was collected of the purchaser. 
 Within a week the purchaser failed, 
 never having paid the money; and 
 the merchants brought their action 
 against the owner to recover the 
 amount, alleging that, by the cus- 
 tom of trade in New York, upon a 
 sale for cash, the purchaser has three 
 or four days in which to pay the 
 money. Held, that, to authorize a 
 verdict for plaintiff, the evidence 
 must have shown such custom to 
 have been at the risk of the owner, 
 and so certain, uniform, and notori- 
 ous, that it must be presumed to 
 have been understood by the parties. 
 Steward v. Soudder, 24 N. J. L. 96. 
 Though custom or usage will not be 
 admitted to contradict a stipulation 
 in writing, it is admissible to add 
 new terms not expressed in or cov- 
 ered by the writing. Alabama, &o. 
 R. R. Co. V. Kidd, 29 Ala. 221. But it 
 may be admitted to determine that 
 which, by the contract, is left unde- 
 termined. Dixon v. Dunham, 13 111. 
 
164 
 
 THE USAGES OF TRADE, THEIK OFFICE. 
 
 port.^ But this latter rule is subject to many exceptions, if in 
 fact it is not altogether erroneous, for the instances are numer- 
 ous where evidence of usage is received to vary in some sense 
 the legal effect of a written contract. Notably is this the 
 case when words used in a contract have acquired a peculiar 
 meaning, different from the sense in which they are ordina- 
 rily employed. In such cases the meaning which they have 
 acquired by usage is admitted, in order to ascertain and carry 
 into effect the real and true intent of the parties. Therefore 
 it would seem that the more accurate rule is, that 'proof of a 
 
 324; Leach v. Beardslee, 22 Conn. 404; 
 Shaw V. Mitchell, 2 Met. (Mass.) 65; 
 (hoper V. Kane, 19 Wend. (N. Y.) 386. 
 A contract required that a party 
 should "clear, grub, and pile the 
 brush, all to be done in good order 
 on all " of a certain piece of land, in 
 which there was a ravine. Held, 
 that evidence was not admissible to 
 show that the grubbing such a ravine 
 was not usual in that neighborhood, 
 or that the farm would be better 
 without having it grubbed, especially 
 if under the contract the party insists 
 upon having such grubbing done. 
 Holmes v. Stummel, 15 111. 412. In 
 such a case the question is not what 
 is iisual or best to do, but what was 
 contracted to be done. 
 
 ' Holmes v. Pettingill, ante ; Law- 
 rence v. Maxwell, 53 N. Y. 19; Allen 
 v. Dykens, 8 Hill (N. Y.) 593 ; Dalton 
 V. Daniels, 2 Hilt. (N. Y.) 472; Hin- 
 ton v. Locke, 5 Hill (N. Y.) 437 ; 
 Taylm- v. Ketchum, 5 Eobt. (N. Y.) 
 507 ; Spear v. Hart, 3 Id. 420 ; Ourrie 
 V. Smith, 4 N. Y. Leg. Obs. 343 ; Bar- 
 gett V. Orient Ins. Co., 3 B. & S. (N. Y.) 
 385 ; Vail v. Rice, 5 N. Y. 155 ; Suy- 
 dam V. Clark, 2 Sandf. (N. Y.) 133; 
 Wadsworth v. Alcott, 6 Id. 64; Lane 
 V. Bailey, 47 Barb. (N. Y.) 395; Wall 
 V. Ins. Co., 7 N. Y. 370 ; Higgins v. 
 
 Moore, 34 N. Y. 417 ; Bissell v. Camp- 
 bell. 54 N". Y. 353 ; Minnesota &e. R. 
 R. Co. V. Morgan, 52 Barb. (N. Y.) 
 217. And it is held in New York 
 that evidence of a usage is not 
 admissible to convert a representa- 
 tion into a warranty. Stebbins v. 
 Brown, 65 Barb. (N. Y.) 274; Beirne 
 V. Dord, 5 Sandf. (N. Y.) 95; Haines 
 ,v. Lawrence, 4 N. Y. 345. Or to con- 
 tradict a settled rule of law. Frith 
 v.f Barker, 2 Johns. (N. Y.) 327; 
 Mackenzie v. Smith, 22 Am. Law Reg. 
 448 ; Emery v. Dunbar, 1 Daly (N. Y.) 
 408 ; Schiefflin v. Harvey, 6 Johns. 
 (N. Y.) 170; Jones v. Bradner, 10 
 Barb. (N. Y.) 193; Otsego Co. Bank 
 V. Warren, 18 Id. 290; Cutwater v. 
 Nelson, 20 Id. 29. And such also is 
 the rule in Massachusetts. Board- 
 man y.Spooner, 13 Allen (Mass.) 353. 
 Where, by the terms of a written 
 contract, commission merchants are 
 to charge a specified commission on 
 sales, which is to be in full of all 
 expenses, and at the termination of 
 the contract by mutual consent, the 
 goods on hand are transferred to 
 other factors, evidence is incompe- 
 tent to prove a usage of merchants 
 to charge one-half commission under 
 such circumstances. Ware v. Hay- 
 ward Rubber Co., 3 Allen (Mass.) 84. 
 
THE USAGES OF TRADE, THEIR OFFICE-. 165 
 
 usage is never admissible to vary the plain legal import of a 
 contract unless a latent ambiguity exists therein, or is raised 
 by extrinsic evidence. In such cases evidence of usage, unless 
 expressly excluded by the terms of the contract, is not only 
 justifiable in principle, but absolutely necessary to carry into 
 effect the real intention of the parties.® An apt illustration 
 of this rule is to be found in a Connecticut case,^ in which 
 certain lands had been conveyed to the defendant by a deed 
 which contained a clause as follows : " With the privilege of 
 deepening the ditch leading from the premises, to drain the 
 same over the grantor's land as deep as the grantee may 
 desire." The defendant not only deepened but widened the 
 ditch correspondingly, to keep it from caving in from the 
 top. The plaintiff brought an action against him for the 
 alleged trespass in widening the ditch. It appeared that the 
 method of widening ditches at the top when they were deep- 
 ened was the usual mode adopted in that vicinity, and that 
 unless this was done, the defendant would have been com- 
 pelled to have curbed it with stone, which would have made 
 the expense more than the value of the land. The court 
 held that evidence was admissible to show what the usage 
 was in that respect, and that the parties must be treated as 
 having contracted with reference thereto, and that if the 
 mode adopted by the defendant was the usual method, he 
 could not be held chargeable for a trespass.^ This case 
 
 " Best on Evidence, (Wood's Edu.) draining the premises conveyed, 
 
 432; Eng. Edn. 318. which was low, swampy land, 
 
 1 Collins V. Driscoll, 34 Conn. 43. adapted to the production of peat 
 
 2 Pari, /..in delivering the opinion for fuel. * * Such business requires 
 of the court in this case said, "At the that the land should be thoroughly 
 time the deed was executed the ditch drained. The parties to the deed 
 in question was six feet deep and six considered that the ditch already 
 feet wide at the top, with sides slop- existing might be found incapable 
 ing to two feet wide at the bottom. of draining the land to the extent 
 The deed confers authority upon the desired, and hence, the clause in 
 plaintiff to deepen the ditch as deep question was inserted in the deed, 
 as the plaintiff may desire. The The defendant contends that the 
 ditch was dug for the purpose of clause should be construed as grant- 
 
166 
 
 THE USAGES OF TKADE, THEIE OFFICE. 
 
 furnishes but one of numerous instances in which the courts 
 permit usages to control the legal effect of a contract. All 
 contracts tacitly refer to the circumstances under which they 
 are made, and it is upon this principle that courts permit 
 evidence of particular usages and customs to be shown in 
 aid of the interpretation of all written instruments whether 
 ancient or modern, whenever from the nature of the case a 
 knowledge of such usages and customs is essential in order 
 to arrive at a correct understanding of the intention of the 
 parties.^ Such evidence is admissible to explain clauses of 
 doubtful construction/ and show the nature of the transac- 
 
 ing the right to deepen the ditch, 
 but as conferring no authority upon 
 the plaintiff to widen it; that the 
 expression is equivalent to an ex- 
 press prohibition against widening 
 the ditch, however necessary it 
 might he in deepening it. This 
 clause would render the clause inop- 
 erative, for the ditch was but two 
 feet wide at the bottom, and it is 
 manifest that at that width, it could 
 not be lowered to any practical effect, 
 even by curbing. * * Hence, if the 
 defendant's construction is correct, 
 he has granted a privilege of no 
 practical benefit, and contrary to 
 the manifest intention of the par- 
 ties. The plaintiffs claim that the 
 defendant granted the right to 
 deepen the ditch in the usual mode 
 in similar cases, which consists in 
 sloping the sides to an extent neces- 
 sary to prevent their caving in, and 
 render them safe from the ordinar}' 
 flow of the water through the ditch. 
 
 * * Some mode must have been un- 
 derstood by the parties, for it is easy 
 to see that the ditch could not have 
 been deepened without resort to 
 some mode for protecting the sides. 
 
 * * Inasmuch as the deed is silent 
 as to the mode of deepening the 
 
 ditch, it contains a latent ambiguity, 
 and when that is the case, extrinsic 
 circumstances may always be shown 
 in order to ascertain in what sense 
 the parties intended to be under- 
 stood by the terms they used. Brower 
 V. Brower, 4 Conn. 269 ; Shies v. Flagg, 
 4^(1. 581 ; Strong v. Benedict, 5 Id. 210; 
 Brown v. Slater, 16 Id. 192 ; , Baldwin v. 
 Carter, 17 Id. 201 ; Ely v. Adams, 19 
 John. (N. Y.) 313 ; Greenleaf's § 288; 
 Swift's Dig. 180. Should we inter- 
 pret the deed by the aid of these cir- 
 cumstances we can have no doubt 
 that the grantor intended to confer 
 the right to deepen the ditch in the 
 usual mode. * * If the defendant had 
 intended to restrict the plaintiff to a 
 mode of deepening the ditch differ- 
 ent from the usual one, he should 
 and would have done it specifically 
 in his deed." 
 
 5 FrUh V. Barker, 2 Johns. (N. Y.) 
 327; Barmen v. Neioell, 8 N. Y. 190; 
 Gib-son V. Cither, 17 Wend. (N. Y.) 305. 
 
 * Rankin v. Am. Ins. Co., 1 Hall 
 (N. Y.) 619; Winthroop v. Union Ins. 
 Co., 2 Wash. (Va.) 7; Alleyne v. 
 Maryland Ins. Co., 2 G. <fe J. (Md.) 
 136 ; Harris v. Nicholas, 5 Munf. (Va.) 
 483; Coit v. Commercial Ins. Co., 7 
 Johns. (N. Y.) 385; United States v. 
 
THE USAGES OF TRADE, THEIR OFFICE. 
 
 167 
 
 tion^ and give eifect thereto.® So, too, unless excluded by the 
 terms thereof, evidence of usage is admissible to add incidents 
 to the contract which are not inconsistent with its terms, and to 
 ascertain the intention of the parties in reference to matters 
 about which the contract is silent.'' Proof of a usage by com- 
 
 McDaniel, 7 Pet. (U. S.) 1 ; Merchants' 
 Insurance Co. v. Wihon, 2 Md. 217. 
 The words " six per cent, off for 
 cash," endorsed on a bill of goods, is 
 sufficiently equivocal to render it 
 proper to receive evidence as to how, 
 by custom or usage among men, it 
 is understood. Linsley v. Lovely, 26 
 Vt. 123. So it has been held admis- 
 sible to show whether the word 
 " cargo," in a policy of insurance, 
 was regarded as including " live 
 stock." Alkyne v. Maryland Ins. Co., 
 ante. That a contract to do plaster- 
 ing by the square yard "justifies the 
 plasterer to charge for the full sur- 
 face of the bare walls, without deduc- 
 tions for cornices, baseboards or 
 openings for doors or windows.'' 
 Walls v. Bailey, 49 iST. Y. 464— see 
 post ; Cutwater v. Nelson, 20 Barb. (N. 
 Y.) 29; Markham v. Jordon, 41 N. Y. 
 235; Thomas v. O'Hara, 1 Mill (S. C.) 
 Const. 303 ; Steward v. Scudder, 24 N. 
 J. L. 96. 
 
 ^ Loringy. Gurney, 5 Pick. (Mass.) 
 15 ; Thompson v. Hamilton, 12 Id. 
 425 ; Taylor v. Semmes, 4 G. & J. 
 (Md.) 274; Eaton v. Smith, 20 Pick. 
 (Mass.) 150. 
 
 * Manffuin v. Farrington, 1 Daly 
 (N.Y.) 236 ; Cooper v. Kane, 19 Wend. 
 (N. Y.) 886 ; Dalton v. Daniels, 2 
 Hilt. (N. Y. C. P.) 472; Hinton v. 
 Locke, 5 Hill (N. Y.) 437 ; Stanton v. 
 Small, 3 Sandf. (N. Y.) 230; Macken- 
 zie V. Schmidt, 22 Am. Law Reg. 448 ; 
 Bissell V. Campbell, 54 N. Y. 353 ; Lee 
 v.SaKer,Lalor(N.Y.)163. The rule 
 that courts are to give construction 
 
 to contracts is frequently departed 
 from where the contracts relate to 
 the scientific or mechanic arts, or 
 common words of a technical or local 
 signification. In such cases it is 
 common and prudent to admit the 
 evidence of those engaged in the 
 business to which the contract re- 
 lates. Reynolds v. Jordon, 6 Cal. 108 ; 
 Myers v. Walker, 24 111. 133 ; Hart v. 
 Hammett, 18 Vt. 127 ; Galma Ins. Co. 
 V. Kiiper, 28 Id. 332 ; Prather v. Ross, 
 17 Ind. 495 ; Carey v. Blight, 58 Penn. 
 St. 70 ; Williams v. Wood, 16 Md. 220 ; 
 Taylor v. Sotstings, 6 La. An. 154; 
 Broadwell v. Broadwell, 1 Gill. (Md.) 
 599; Brown v. Brooks, 25 Penn. St. 
 210 ; Smith v. Clayton. 29 N. J. L. 357 ; 
 Halhert v. Carrier, 37 Barb. (N. Y.) 62. 
 ' Fox V. Parker, 44 Barb. (N. Y.) 541 ; 
 Cassidy v. Begaden, 6 J. & S. (N. Y.) 
 180; Boormen v. Jenkins, 12 Wend. 
 (N. Y.) 666. It is admissible to de- 
 termine that which the contract has 
 left undetermined. Cooper v. Kane, 
 19 Wend. (N. Y.) 386 ; Dixon v. Dun- 
 ham, 14 111. 324 ; Mitchell v. Mitchell, 
 2 Met. (Mass.) 65; Leach v. Beardslee, 
 22 Conn. 404. When a contract 
 called for trees not less than " one 
 foot high," evidence of a usage of 
 the dealers in that sort of trees was 
 held admissible that the hard part 
 of the trees between the roots and 
 the green top was to be measured, 
 and not the green stem, and that 
 too, although the usage was of re- 
 cent origin. Barloio v. McKelway, 22 
 N. J. L. 165. Proof of usage is some- 
 times admissible to change the char- 
 
168 
 
 THE USAGES OF TEADE, THEIR OFFICE. 
 
 mission merchants, drovers, &c., to sell property left with them 
 for sale, on approved credit, may be given when it does not 
 impugn the clear stipulations of a contract, or is not in vio- 
 lation of express directions given by the owner. Thus, 
 where a yoke of oxen was delivered to a drover to be taken 
 to New York and sold by him on commission, and the 
 drover took them to New York and sold them in connection 
 with some of his own cattle, upon a credit of twenty days, 
 to a firm that was reputed to be good, and took a note there- 
 far covering both the price of his own and the plaintiff's 
 cattle, and before the note became due the makers failed and 
 became bankrupt ; it was held competent for the drover to 
 
 acter of an instrument, as to show 
 that a receipt is regarded as a bill of 
 sale. Thus, it was held that a re- 
 ceipt as follows, " Rec'd of A. B. 
 40J§ bushels of wheat," might be 
 shown by parol evidence of usage to 
 be a sale rather than a settlement. 
 Domson v. Kittle, 4 Hill (N. Y.) 107 ; 
 Goodyear v. Ogden, 4 Id. 104. In 
 Bewail V. Gibhs, 1 Hall (K Y.) 602, it 
 was held that a purchaser of indigo 
 at auction which proved to be ft-audu- 
 lently packed, might give evidence 
 of a custom to allow the purchaser 
 in such case, the actual tare, although 
 notice was given at the sale that the 
 indigo would be sold subject to the 
 usual tare. In debt against sureties 
 on a bond conditioned for the repay- 
 ment of advances made for the pur- 
 chase of packed meats for shipment, 
 and which were sent to London, 
 evidence of usage to charge a com- 
 mission on advances on shipments 
 made to London, is admissible ; and 
 if such a usage exists, a commission 
 is properly charged, in the absence 
 of a special agreement to the con- 
 trary. Turner v. Yate», 16 How. (U. 
 S.) 14. In assumpsit for goods sold, 
 it is competent for the defendant to 
 
 prove that, by the usage of dry goods 
 jobbers in Boston, to which class the 
 plaintiffs belonged, goods not pur- 
 chased on a cash sale are purchased 
 on a credit of six months, where the 
 bills are not marked. Famsworth v. 
 Chase. 19 N. H. 534. The power of 
 an agent to sell has been held, sub- 
 ject to the interpretation of usage, 
 to mean to sell by warranty or sam- 
 ple. Alexander v. Gibson, 2 Camp. 
 555 ; Dingle v. Hare. 7 C. B. N. S. 145 ; 
 Randall v. Kehlor, 60 Me. 37 ; Morris 
 v. Bmven, 52 N. H. 416. So, too, it 
 has been held that a power given to 
 an agent to sell certain species of 
 goods, may be limited by proof 
 of usage giving the principal the 
 right to reject such vendees as hfe 
 disapproved. Sumner v. Stewart, 69 
 Penn. St. 321. Where a bill of 
 lading expresses that goods are to 
 be carried from one port to another, 
 a direct voyage is, prima fade, 
 intended, but this presumption may 
 be controlled by a usage to stop at 
 intermediate ports, or by personal 
 knowledge on the part of the ship- 
 per that such a course is to be 
 pursued. Lowry v. Russell, 8 Pick. 
 (Mass.) 360. 
 
THE USAGES OF TRADE, THEIR OFFICE. 169. 
 
 show that in the sale of the oxen he followed the usage of 
 the trade, not only as to the manner of sale but also as to 
 the terms of credit, and that, if no definite instructions as to 
 the sale were given, contrary to such usage, it operated as a 
 full defence against the plaintiff's claim.** "A general usage," 
 said Church, C. J., " aflFecting any branch of business, furn- 
 ishes good evidence of what is regarded as right and reason- 
 able in that respect, and when it is conformed to, negligence 
 or misconduct cannot be imj)uted.^ Proof of the general 
 usage claimed by the defendant to exist in the city of New 
 York, where the plaintiff intended the sale of his cattle 
 should be made, furnished strong evidence that he not only 
 assented, but empowered his agent, to sell on the usual credit 
 and in the usual manner. And although commission mer- 
 chants, in the absence of instructions or custom, must gener- 
 ally sell for cash, yet, if there is a usage modifying the course 
 of business in this particular, or in other respects, and the 
 sale is made in the usual and customary way, the agency is 
 legally performed."^ The usage offered to be proved, and 
 which was proved, was not to contradict or control the terms 
 of a contract definitely expressed, as it would have been if 
 positive instructions to sell for cash down had been proved, 
 but only to show the extent of the duty and obligation of 
 the defendant, not thus expressed but inferable from the 
 nature of the business in which the defendant had long been 
 engaged, and the well known manner in which such business 
 is usually conducted. Usage cannot control the clear and 
 unequivocal stipulations of a contract, but will be controlled 
 by them? So, too, it is competent to show that by the usages 
 of trade where certain articles are sent to commission mer- 
 
 8 Leach v. Beardslee, 22 Conn. 404. = Taylor v. Briggs, 2 C. & P. 525; 
 
 ^ Barber V. Brace, SCorm. 9; Casco Smith v. Wilson, 3 B. & Ad. 728; 
 
 Mfg. Co. V. Dixon, 3 Cush. (Mass.) Blackett v. Royal Ins. Co., 2 C. & J. 
 
 408. 244; Yates v. Pi/m, 6 Taunt. 446; 
 
 1 Story on Agency, |J 60, 77, 96, 110 ; Glendale Mfg. Co. v. Protection Ins. Co., 
 
 2 Kent's Com. 622. 21 Conn. 19. 
 
170 THE rSA&ES OF TBADE, THEIR OFFICE. 
 
 chants or others, in barrels, boxes, &c., the barrels, &c., to 
 be returned, it is customary to return other barrels, &c., equal 
 in number and value, in lieu of those received. Thus, in a 
 Connecticut case,^ the defendant who was engaged in the 
 business of forwarding farmers' produce to New York and 
 s'elling it on commission, received from the plaintiff a quan- 
 tity of cider in barrels, to be sold, and the barrels to be 
 returned. He sold the cider and barrels and returned the 
 plaintiff other barrels equal in number and value with those 
 received, which the plaintiff refused to receive, but brought 
 trover for the barrels in question. The defendant proved 
 that it was the custom of those engaged in that business to 
 return to shippers the same casks when practicable to do so, 
 but if not, to return others equal in number and value to 
 those received, and that the plaintiff had presumptive, if not 
 actual, knowledge of such custom. The court held that the 
 plaintiff was bound by the usage and could not recover for 
 the barrels. Evidence of usage and custom is admissible 
 whenever from the nature of the case a knowledge thereof 
 is essential to a right understanding of the instrument. 
 " The law," says an eminent law writer,* " is not so unrea- 
 sonable as to deny to the reader of any instrument the same 
 light that the writer enjoyed." Consequently, if there is 
 not any thing upon the face of the instrument to exclude it, 
 and it appears that a well established usage existed in refer- 
 ence to the subject-matter to which it relates, when the 
 instrument was made, and such usage does not impair the 
 express terms of the instrument, and is not unreasonable or 
 in conflict with positive law, it may always be shown, 
 although its effect is to add incidents to the contract or 
 change the ordinary sense of certain terms employed, because 
 a knowledge thereof is essential to give effect to the contract 
 according to the true intent of the parties thereto.^ 
 
 3 Sturges v. Buckley, 32 Conn. 18. C. J., in Boorman v. Johnston, 12 
 
 * Wigrani on Extr. Ev. 57. Wend. (N. Y.) 573, " may be given 
 
 ^ " Parol evidence," says Savage, to apply the written contract to the 
 
THE USAGES OF TRADE, THEIE OFFICE. 
 
 171 
 
 Usage Defining and Explaining— Meaning of Words Explained. 
 Sec. 85. In such cases, then, evidence of usage is admis- 
 sible to define and explain the technical, peculiar or local 
 
 subject matter — in some instances 
 to explain expressions used in a 
 peculiar sense, when used by particu- 
 lar persons and applied to particular 
 Sfubjects. It is perfectly right and 
 consistent with fair dealing to give 
 effect to language used in a contract as 
 it is understood by those who make use 
 of it." Story, J., in The Schooner 
 Reeside, 2 Sumn. (U. S.) 569, says: 
 " The true and appropriate oiEce of 
 a usage is to interpret the otherwise 
 indeterminate intentions of the par- 
 ties, and to ascertain the nature and 
 extent of tlieir contracts, arising, not 
 from express stipulations, bat from 
 raere presumptions and implications 
 and axits of a doubtful nature. It may 
 also be admitted to ascertain the 
 true meaninir of a particular word, 
 in a given instrument, when the 
 word or words have various senses — 
 some common, some qualified and 
 some technical, according to the 
 subject matter to which they are 
 applied." Usages are to be found 
 in almost all kinds of business, in 
 relation to their particular and pe- 
 culiar conditions, and a knowledge 
 thereof is frequently indispensable 
 to get at the right understanding of 
 parties contracting in relation to 
 matters connected therewith. The 
 usage explains and ascertains the 
 intention of the parties, and, not 
 being in opposition to positive law 
 or the general policy of the law, 
 unreasonable, or inconsistent with 
 the express terms of the instrument, 
 it comes in as a species of lex loci, 
 and incorporates itself with the terms 
 of the writing. The general doctrine 
 is not restricted to mercantile trans- 
 
 actions, but extends to every depart- 
 ment of every species of business, 
 whether mercantile, professional^ 
 mechanical, agricultural, &c., &c. 
 Wait v. Fairbanks, Brayt. (Vt.) 7; 
 Heald v. Cooper. 8 Me. 33 ; Sewall v. 
 Gibbs, 1 Hall (N. Y.) 602; Williams 
 V. Oilman, 3 Me. '276 ; Gibson v. Cul- 
 ver. 17 Wend. (N. Y.) 305; Wood v. 
 Hicock, 2 Id. 501 ; Gordon v. Little, 8- 
 S. & R. (Penn.) 533; Be Forest v. 
 Fulton Ins. Co., 1 Hall (N. Y.) 84; 
 Harris v. Nicholas, 5 Munf. (Va.) 483 ;' 
 Powell V. Horton, 2 Bing. (N. C.) 
 688; Yeaton v. Bank of Alexandria, 5- 
 Cranch. (U. S.) 492; Van Ness v. 
 Packard, 2 Pet. (U. S.) 148; United 
 States V. Arredondo, 6 Id. 715 ; Yeate» 
 V. Pim, 1 Holt 95 ; Homer v. Dorr, Ifr 
 Mass. 26; StiUtz v. Dickey, 5 Binn. 
 (Penn.) 282; Lebanon v. Heath, 47 
 N. H. 353 ; Hursh v. North, 40 Penn. 
 St. 241; Wait v. Hock, 25 Id. 411; 
 State v. McClay, 1 Harr. (Del.) 520; 
 Wilcox V. Wood, 9 Wend. (N. Y.) 
 346; Foster v. Robinson, 6 Ohio St. 90 ; 
 Ludwick v. Ohio Ins. Co., 5 Ohio 436 ; 
 Inglebright v. Hammond, 19 Jrf. 
 337 ; Barber v. Brace, 3 Conn. 9 ; 
 DaUon v. Daniels, 2 Hilt. (N. Y.) 472 ; 
 Lampson v. Qazzam, 6 Port. (Ala.) 
 423 ; Haven v. Wentworth, 2 N. H. 93 ; 
 Munn v. Burch, 25 111. 35; Powers v. 
 Kane, 5 Wis. 265 ; TFarreji Bank v. 
 Parker, 8 Gray (Mass.) 221 ; Crosby 
 v. Wyatt, 23 Me. 156. Fair infer- 
 ences from evidence founded upon 
 the natural and usual course of busi- 
 ness and of human experience are 
 as much evidenije as the principal 
 facts from which these deductions 
 flow; and, as such, may properly be 
 suggested to the jury by the court in 
 
172 
 
 THE USAGES OF TRADE, THEIE OFFICE. 
 
 meaning of the words used, but where the word has two 
 meanings, one common and universal, the other technical or 
 local, it will be necessary to give proof of circumstances 
 which will raise a presumption that the parties intended 
 to use the words in their later rather than in their 
 former relation, unless the fact can be inferred from read- 
 ing the instrument itself (/) Thus the words " inhabi- 
 tant," (m) " level," (??.) as understood by miners; "thou- 
 
 its charge. Austin v. Bingham, 31 
 Vt.577. Numerous presumptions are 
 drawn from the usual course of busi- 
 ness, and, unless rebutted, have the 
 force of positive proof. Thus if a 
 letter, properly addressed,, is depos- 
 ited in the postofEce, it i\Soriis prima 
 fade evidence that it was received 
 by the partj' to whom it was ad- 
 dressed. Kufh V. West, 6 E. & P. 54 ; 
 Stockton V. Collins. 7 M. & W. 515; 
 Warren v. Warren, 1 C. M. & E. 
 250; Keiron v. Johnson, 1 Stark. 109. 
 So where it was shown to be the 
 usage of a hotel to deposit all letters 
 left at the bar in an urn for that 
 purpose, whence they were sent 
 every fifteen minutes throughout 
 the clay to the rooms of the different 
 guests to whom they were directed, 
 it was held to warrant the presump- 
 tion that a letter addressed to one of 
 the guests, and left at the bar, was 
 received by him. Dana v. Kemble, 
 19 Pick. (Mass.) 112. Presumptions 
 of this kind are also made from the 
 course of business in private offices, 
 as merchants'. Hagedom v. Reids, 
 
 3 Camp. 379 ; Hetherington v. Keinp, 
 
 4 Id. 193 ; Hawkes v. Saltei-, 4 Bing. 
 715; Prltt v. Fairclough, 3 Camp. 305 ; 
 Loosey v. Williams, 1 M. & M. 129; 
 Attorneys ttc. Patteshall v. Turpond, 3 
 
 [l] Shore v. Mfeo/i, 9 CI. & F. 355 ; 
 see also Att.-Gen. v. Drummond. 1 
 Dru. & War. 353 ; Drummond v. Att.- 
 
 B. & Ad. 890. In Hine v. Pomeroy, 
 39 Vt. 211, the question at issue was 
 whether the plaintiff's attorney, in a 
 former action, directed the officer 
 making an attachment to take a 
 certain person as receiptor. It was 
 held competent to ask the attorney 
 what his uniform habit and course 
 of business as an attorney was before 
 and at the time of issuing said writ, 
 not to give officers to whom writs 
 were delivered any instructions as to 
 whom they should take as receiptors. 
 The presumption that where a part- 
 nership shown to exist between per- 
 sons, but there is no evidence as to 
 the extent of their interest, that they 
 are interested in equal amounts. 
 Farrar v. Beswick, 1 M. & B,. 527. 
 That bills and notes are given for a 
 good consideration. Byles on Bills, 
 2 and 108. And that a bill of exchange 
 is presumed to have been accepted 
 within a reasonable time after its 
 date, and before maturity. Mobert^ v. 
 BetheU, 12 C. B. 778. As well as a 
 large class of other presumptions too 
 numerous to refer to, are predicated 
 upon and find their support in the 
 usual course of business. Cunningham 
 V. Fonblanque, 6 C. & P. 44; Hough- 
 ton V. Cilbart, 7 Id. 701 ; Carter v. 
 Abbott, 1 B. & C. 444. 
 
 Gen. 2 H. of L. Cas. 837. 
 (m) R. V. Mashiter, 6 A. & E 153. 
 (?!.) Clayton v, Greyson, 5. A. & E. 302. 
 
THE USAGES OF TRADE, THEIR OFFICE. 
 
 173 
 
 sand," (o) as applied to rabbits on a warren ; " weeks," as used 
 in a theatrical contract ;(|)) "months," as meaning calendar 
 months in a charter party; (5') "days," as meaning working 
 days in a bill of lading ;(r) "fur,"(s) "corn,"(i) "pig 
 iron,"(^) " freight," (i;) "salt,"(w) and other words(a;) and 
 phrases, which presented at first sight no ambiguity, have 
 been interpreted by extrinsic evidence of usage. Evidence 
 of usage is admissible to explain and fill up terms used in 
 commercial and other contracts,^ policies of insurance,' nego- 
 
 (0) Smith V. Wilson, 3 B. & Ad. 728. 
 
 (p) Grant v. Maddox, 12 M. & W. 
 737 ; see Myers v. Sari, 30 L. J. Q. B. 
 9 ; 3 E. & E. 306. 
 
 (q) Jolly V. Young, 1 Esp. 186, rec- 
 ognized in Simpson v. Margitson, 11 
 Q. B. 32. 
 
 [r) Cochran v. Retberg, 3 Esp. 121. 
 
 (s) Astor y. Union Ins. Co. ,7 Cowen 
 202. 
 
 (i) Mason v. Skurry and Moody v. 
 Surridge, Park, Ins. 245; Soott v. 
 Bourdillion, 2 N. R. 213. 
 
 (u) Mackenzie v. Dunlop, 8 Macq. 
 Sc. Gas. H. of L. 26. 
 
 {v) Peisch V. Dickson, 1 Mason, 11, 
 12 ; Gibson v. Young, 2 Moo. 224. 
 
 8 Fitch V. Carpmiter, 43 Barb. (N. Y.) 
 40; Hite v. State, 9 Yerg. (Tenn.) 357; 
 Sampson y.Gazzam,& Post. (Ala.) 123; 
 Ganson v. Madigan, 15 Wis. 144; Rug- 
 by V. Goodloe, 7 La. An. 295 ; Wait v. 
 Fairbanks, Breyt. (Vt.) 77; Noyes v. 
 Canfleld, 27 Vt. 79. 
 
 ' In Alleyne v. Maryland Ins. Co., 2 
 G. & J. (Md.) 186, evidence of usage 
 was held admissible to show that the 
 word "cargo" did not include live- 
 stock. Rogers v. Mechanics' Ins. Co., 
 1 Story (U. S.) 603 ; Lapham v. Atlan- 
 tic Ins. Co., 24 Pick. (Mass.) 1. It 
 may be shown that it is a usage 
 among commission merchants to 
 effect insurance upon goods con- 
 
 {^v)Journeev.Bourdieu,7a,ik.lns.245. 
 (x) See Symonds v. Lloyd, 6 C. B. 
 N. S. 691 ; see Lewis v. Marshall, 7 M. 
 & G. 729, 738; Lucas v. Gi-oning, 7 
 Taunt. 164; Robertson v. Jackson, 2 
 C. B. 412; Lethulier's case, 2 Salk. 
 443 ; Milter v. Tetherington, 6 H. & N. 
 278; Kidson v. The Empire Marine 
 Ins. Co., 1 L. E. C. P. 535; 35 L. J. 0. 
 P. 250; Myers v. Sari, 30 L. J. Q. B. 
 9; Taylor v. Bi-iggs, 2 C. & P. 525; 
 Gorrissen v. Perrin, 27 L. J. C. P. 29 ; 
 Bold V. Rayner, 1 M. & W. 343 ; Spicer 
 V. Cooper, 1 Q. B. 421; 1 G. & D. 52; 
 Bowman v. Horsey, 2 M. & Hob. 85, 
 per Ld. Abinger ; Johnston v. Usbome, 
 11 CI. & E. 549. 
 
 signed to them without express in- 
 structions from the consignors. Be 
 Forest v. Futton Ins. Co., 1 Hall (N. Y.) 
 84. In a recent case before the Penn- 
 sylvania Supreme Court not yet re- 
 ported, Adams v. Pittsburgh Ins. Co., 
 a custom of captains of steamboats 
 at a large river-port to insure their 
 boats and give premium notes there- 
 for, held to be one to which there 
 was great necessity to give effect, the 
 perils of navigation being so well 
 known that a due regard for some 
 indemnity against loss is justly recog- 
 nized as a necessary precaution. If 
 such custom has clearly and dis- 
 tinctly proved to have existed so 
 
174 
 
 THE USAGES OF TRADE, THEIK OFFICE. 
 
 tiable instruments* and other contracts when the language 
 used therein, although well understood by the parties and by 
 all who have to act upon it in matters connected with the 
 particular business, would nevertheless be unintelligible and 
 meaningless to a person not familiar with the business 
 to which they relate. The rule that courts are to give 
 construction to contracts is necessarily departed from where 
 the contract relates to the scientific or mechanic arts, 
 ■or contain words of a technical or local signification, or 
 which have acquired a peculiar meaning in the business 
 in which they are used ; and, in such cases, the evidence 
 
 long as to be generally known, the 
 ■owners of a steamboat so insured 
 would be liable upon the notes given 
 for the insurance. " Consuetudo," 
 said Coke, " is one of the main tri- 
 angles of the laws of England ; those 
 laws being divided into common law, 
 statute law and particular customs, 
 for if it be the general custom of the 
 realm it is part of the cominon law." 
 Co. Lit. 113-15. " A custom used 
 upon a certain reasonable cause de- 
 priveth the common law." Little- 
 ton 112, ? 169. In Vanheath v. Tur- 
 ner, Winch. 24, Chief Justice Hobart 
 said: "The custom of merchants is 
 part of the common law of this king- 
 dom, of which the judges ought to 
 take notice, and if any doubt arise 
 to them about the custom they may 
 fiend for the merchants to know 
 their custom." That a custom so 
 general and notorious may exist as 
 to authorize the captain of a steam- 
 boat to effect an insurance on it for 
 the benefit of the owners without 
 their express directions is well set- 
 tled by authority. It would not be 
 in conflict with any statute, nor 
 would it be unreasonable or contrary 
 to public policy. See Vanness v. 
 Pacard, 2 Pet. (U. S.) 148; Gordon v. 
 
 Little, 2 S. & R. (Pa.) 353; Eyre v. 
 Marine Ins. Co., 5 W. & S. (Penn.) 116; 
 Snowden v. Warder, 3 Rawl. (Pa.) 101 ; 
 MeMaster v. Pennsylvania R. R. Co., 
 19 P. P. Smith (Pa.) 374; Carter v. 
 Philadelphia Coal Co., 27 Id. 286; 1 
 Phill. on Ins. 80, 83 ; Smith v. Wright, 
 1 Cal. 43. It was held in Oliver v. 
 Gveen, 3 Mass. 134, that a part owner 
 of a vessel who had chartered the 
 other part with a covenant to pay 
 the value in case of a loss, might in- 
 sure the whole vessel as his property, 
 without disclosing that he had a 
 special property only, in a moiety 
 thereof. In De Forest v. Fidton Fire 
 Ins. Co., 1 Hall (N. Y.) 94, it was 
 held that a commission merchant 
 might recover on a policy of insur- 
 ance for goods in his possession de- 
 stroyed by fire, beyond the value of 
 his property therein, without any ex- 
 press orders from the consignors of 
 the goods to effect such insurance on 
 proof that such was the usage of 
 commission merchants in New York, 
 Merour, J., Nov. 1, 1880, Albany Law 
 Journal, vol. 23, p. 418. 
 
 ' Avery v. Stewart, 2 Conn. 69 ; 
 Bowen v. Newell, 2 Duer (N. Y.) 584 ; 
 Warren Bank v. Parker, 21 Pick. 
 (Mass.) 483. 
 
THE USAGES OF TRADE, THEIR OFFICE. 175 
 
 of persons familiar witii the usages of the business is 
 indispensable to enable the court to give effect to the con- 
 tract according to its intent.^ Thus, where a note was made 
 payable in "Canada money," evidence of brokers and others 
 at the place where the note was payable, held admissible to 
 show what was meant by the term.^ So the plaintiff, under a 
 contract to furnish carpenters to work at twelve shillings a 
 day, upon the defendant's house, was permitted to show that, 
 by the custom of the trade, ten hours constituted a day's 
 work, and that wages for a day and a quarter for each 
 natural day during which the men worked twelve and a half 
 hours, was properly chargeable under it/ So, in an action of 
 covenant, upon a lease containing a covenant, to get all the 
 coal lying under certain closes, not deeper or below "the 
 level of the bottom of said mine," it was held that evidence 
 was admissible to show that among "miners," "level" would 
 be construed in the sense of geological stratum, and might 
 therefore mean a line above or below the horizontal depth of 
 the mine.' In a contract for boots, where the contract called 
 for " good custom cowhide boots," it was held that evidence 
 was admissible to show what constituted '^ good custom cow- 
 hide," according to the usage of the trade.* In an action 
 
 ° Hart V. Hammett, 18 Vt. 127; Rey- artizans in a city was held admiasi- 
 
 nouldsv.Jourdan,HCa,\.10S; Carey v. ble to show the number of hours 
 
 Bright, 58 Penn. St. 70; Stewart v. per day of labor reqiiired by em- 
 
 Smith, 28 111. 397 ; Broadwell v. Broad- ployees in their business respec- 
 
 «;«K,1 Gill (Md.) 599; Oalena Ins. Co. lively, in order to show the estab- 
 
 V. Kupper, 28 111. 332 ; Taylor v. Soto- lishment of such a custom among 
 
 im^«, 6 La. An. 154 ; Brown -v. Brooks, ambrotypists, daguerreotypists and 
 
 25 Penn. St. 210 ; Prather v. Ross, 17 photographers. 
 
 Ind. 495; Williams v. Wood, 16 Md. = Clayton v. Gregson, 4 Nev. & M. 
 
 220; Cowles v. Qarrett, 30 Ala. 341; 602. 
 
 Drake v. Goree, 22 Id. 409. * Wait v. Fairbanks, Breyt. ( Vt.) 77. 
 
 ^ Thompson v. Sloan, 23 Wend. (N. In Fitch v. Carpenter, 43 Barb. (N. Y.) 
 
 Y.) 71. 40, it was held that evidence was ad- 
 
 ^ Hinton v. Looke, 5 Hill (N. Y.) missible to show what, by the usage 
 
 437. See also Barnes v. Ingalls, 39 of the trade, was regarded as '' good 
 
 Ala. 193, where the evidence of the merchantable shipping hay," used 
 
 general custom of mechanics and in a written contract. 
 
176 THE USAGES OF TRADE, THEIR OFFICE. 
 
 against a common carrier for loss of goods, the plaintiffs were 
 permitted to show by parol that the words " dangers of the 
 river," in the bill of lading, were, by the usage and custom 
 of merchants and others, understood to include other casual- 
 ties than those arising from water.^ So, where the trustee of 
 a railroad contracted with parties to carry " their freight " at 
 certain prices, it was held that evidence of the character of 
 the plaintiff's freighting business for several years previous 
 to the making of the contract, was admissible to show that 
 " hay " was not included.® In an action upon a contract 
 which contained a warranty that a machine furnished should 
 be capable, " with one man and a good team," &c., it was 
 held that evidence as to the sense in which the word " team " 
 was used, was admissible and should be ascertained by evi- 
 dence as to what is understood as constituting a " team," in 
 view of the use to which it was to be applied.' Where a 
 contract entered into to put up a sugar mill and engine, 
 specifying no time when the work should be completed, it 
 was held that parol evidence was admissible to show such 
 facts and usages, as, coupled with the stipulations in the 
 contract, will indicate the period which the parties, it must 
 be presumed, contemplated, without mentioning, from a 
 knowledge, that such incident would be supplied by equity 
 and usage.* Usage has been held admissible to show what 
 is meant by " farm " or " homestead farm,"^ and as to the 
 
 ^ SaiJtpsonv. (raazam, 6 Port. (Ala.) meaning of "inevitable dangers of 
 
 123. But in Boon v. The Belfast, 40 the river," was held admissible in 
 
 Ala. 184, where goods were lost by ascertaining what was intended 
 
 the seizure of the steamer by armed thereby in a bill of lading for the 
 
 men, and the only exception to the transportation of goods by inland 
 
 carrier's liability in the bill of lading navigation, 
 
 was "dangers of the river," it was '^ Noyes v. Canfield, 27 Vr. 79. 
 
 held that it was not competent to ' Oanson v. Madigan, 15 Wis. 144. 
 
 show that a usage existed among all ^ Ragley v. Goodloe, 7 La. An. 295. 
 
 persons navigating the river exempt- ' Locke v. Roioell, 47 N. H. 46. So 
 
 ing carriers from such losses. In "product," in a contract promising 
 
 Gordon v. Little, 8 S. & E.. (Penn.) to pay the product of hogs. Stewart 
 
 535, evidence of usage fixing the v. Smith, 28 111. 397. 
 
THE trSAGES OF TRADE, THEIR OFFICE. 177 
 
 mode of engaging and paying crews of fishing vessels, in 
 order to show the kind of voyage contemplated;-^ to show 
 that in certain kinds of contracts any description of written 
 instruments are regarded as bonds by the parties.^ Where a 
 contract was made between coopers and log dealers by wliich 
 the former agreed to pay the latter three dollars for each 
 and every thousand feet of merchantable boards that certain 
 logs, to be cut by the latter and deposited in the Kennebec 
 river at a given point, might be estimated to make, the 
 plaintiffs, who were the log dealers, insisted that the con- 
 tract was entered into in reference to a usage among persons 
 in their line of business along the Kennebec river, to esti- 
 mate the quantity of boards which may be realized from a 
 log or lot of logs before they were sawed, by a scale called 
 the Brunswich scale. The defendants, however, insisted that 
 the estimate was to be made by the Learned scale, and 
 claimed that the former was erroneous and the latter exact. 
 Under these circumstances the court held that if the usage 
 alleged by the plaintiff existed, and was so generally under- 
 stood that the plaintiff in contracting must be presumed to 
 have had reference to it, then the estimate should be made 
 according to the Brunswick scale.^ In a case arising under 
 the tariff of 1816* as to the meaning of the words " loaf 
 sugar," atfd whether crushed loaf sugar was within the terra 
 or only sugar in the loaf, Judge Story held that all statutes- 
 like this one must be interpreted, not according to the- 
 abstract propriety of language, but according to their mean- 
 
 1 Edredge v. Smith, 13 Allen (Mass.) ute expressly or by necessary impli- 
 24Q_ ' cation provides that an instrument' 
 
 2 Stone V. Bradbury, 14 Me. 185. not executed in the form prescribed 
 
 3 Heald v. Cooper, 8 Me. 32. In by it shall be inoperative, there can 
 Ohio, long established usage in the be no question but that, if it is exe- 
 execution and acknowledgment of cuted in the manner established by 
 deeds will be adhered to, even though long usage, it will be upheld. Gil- 
 it does not follow the literal requisi- man v. Riopelle, 18 Mich. 145; Kirk- 
 tions of the statute on that subject endattv.MitoheU,3'M.cLea,n{TJ.8.)144. 
 Brown v. Farron, 8 Ham. (Ohio) 155. * United States v. Breed, 1 Sumn.. 
 Indeed, exceptincaseswherethestat- (U. S.) 159. 
 
 12 
 
178 THE USAGES OF TRADE, THEIE. OFFICE. 
 
 ing in trade and commerce, and in buying and selling ; and 
 that merchants, refiners, confectioners and grocers might be 
 examined as witnesses for the purpose of ascertaining the 
 commercial import of the phrase in question, and that the 
 jury in the light of such usage of the trade should say 
 whether crushed sugar was within the term " loaf sugar " or 
 not, and they having found that it was not, their verdict was 
 sustained. In an English case^ in which a somewhat similar 
 question was involved, a contrary doctrine was held, the 
 court refusing to permit evidence of experts, or the usages 
 of a trade or business, to be shown to interpret terms used 
 in a statute. In that case it appeared that by an act of Par- 
 liament^ cast plate glass was directed to be squared into 
 plates of certain dimensions, and the question was whether 
 certain plates were in the shape directed. The Attorney 
 General, at the trial, produced books explaining the process 
 and the terms of art in the manufacture, and the defendants 
 offered to prove that by usage the word "squaring'''' had 
 acquired a technical meaning in the trade, and what that 
 meaning was, to wit, the cutting of glass into the shape in 
 which it is intended for the market, whatever that shape may 
 be. This was refused, and upon a motion for a new trial. 
 Eyre, C. B., said, " In explaining an act of Parliament it is 
 impossible to contend that evidence should be admitted, for 
 that would make it a question of fact instead of a question 
 of law. The judge is to direct the jury as to a point of law, 
 and in doing so must form his judgment of the meaning of 
 the legislature in the same manner as if it had come before 
 him by demurrer, where no evidence could be admitted. 
 Yet on demurrer a judge may well inform himself from 
 dictionaries or books on the particular subjects, concerning 
 the meaning of any word. If he does so at Nisi Prius and 
 shows them to the jury they are not to be considered as 
 evidence, but only as the grounds on which the judge has 
 
 « Atty.-Gen. v. The Cast Plate Glass '^ 27 Geo. III., chap. 28. 
 Co., 1 Anstr. 39. 
 
THE USAGES OF TRADE, THEIR OFFICE. 
 
 179 
 
 formed his opinion, as if he were to cite any authorities for 
 the point he lays down." Without doubt the course pur- 
 sued by Story, J., will commend itself to our courts as the 
 true and reasonable course to pursue, especially in the inter- 
 pretation of statutes applying to trades or businesses which 
 employ words in technical and peculiar senses not generally 
 known. Indeed, in our courts usages are often regarded in 
 ascertaining the intention of the legislature.'^ The construc- 
 
 ^ Meriam Y.Harsen, 2 Barb. Ch. (N. 
 Y.) 232. In Polk v. Hill, 2 Overt (Tenn. ) 
 157, the court held that in cases of 
 doubt, usage may be recurred to in 
 order to arrive at the meaning of the 
 legislature. Where the statute fixes 
 the fees of an officer, he cannot set 
 up a custom or usage by which other 
 compensation may be taken. Thus 
 an inspector of flour, whose fees 
 were fixed by statute, claimed that 
 by a custom among inspectors he 
 was entitled to the draft flour drawn 
 out to be examined, but the court 
 held that such a custom was against 
 the policy of the law ; that the stat- 
 ute providing certain fees for inspec- 
 tion thereby impliedly forbade all 
 other compensation ; that it could 
 not be more ancient than the inspec- 
 tion laws, and that they were not old 
 enough to be immemorial, though 
 beyond the actual memory of those 
 now living ; that though this custom 
 had existed under the old laws, and 
 the legislature, in remodeling them, 
 had not expressly negatived the cus- 
 tom, yet that this silence was not a 
 legislative recognition of it. Dela- 
 plane v. Orenshaw, 15 Gratt. (Va.) 
 457. It was also held in the same 
 case that where the statute provided 
 the way in which certain duties 
 should be discharged, a usage, or 
 custom to perform them in another 
 or different mode, even though the 
 
 mode provided by usage was much 
 the best, was invalid. Thus the 
 inspector claimed that he could not 
 inspect by boring a half-inch hole in 
 the head of the barrel, and that the 
 custom allowed him to use a larger 
 auger : the old law required him to 
 inspect flour by a half-inch hole, 
 while the new code required all 
 inspectors of flour, fish, butter, &c., 
 to inspect by a half-inch hole or in 
 some other satisfactory manner, and 
 required the hoops of barrels offered 
 for inspection to be nailed. Held, 
 that the code did not change the 
 method of inspection established by 
 the old law, and that it was no 
 answer to a mandamus to compel 
 the inspector to inspect a certain lot 
 of flour by a half-inch hole, that he 
 could not so inspect it properly, and 
 that the custom authorized him to 
 use a larger hole, as both the answer 
 and the custom would be in contra^ 
 vention of the statute under which 
 he held his office. An illegal usage, 
 prevailing for however long a period, 
 cannot ripen into a binding custom. 
 Pierce v. United States, 1 N. & H. (U. 
 S.) 270. The usage of the postoffice 
 department to require a new con- 
 tractor for carrying the mail to pur- 
 chase the stock of the previous 
 contractor, at a valuation, is not 
 binding on the government. Nye v. 
 United States, 22 Law Eep. (U. S.) 174. 
 
180 
 
 THE USAGES OF TKADE, THEIE OFFICE. 
 
 tion put upon a statute by public officers for a long series of 
 years, not in apparent conflict with its terms, is competent 
 evidence to aid in determining the real meaning of the 
 statute,^ and is regarded as having almost the force of a 
 
 8 Eaton V. Piakersgill, 55 N. Y. 310. 
 In Meriam v. Harsen, 2 Barb. Ch. 
 (N. Y.) 232, it was held that a gen- 
 eral usage, under the statute respect- 
 ing the proof and acknowledgment 
 of deeds and the form and certificate 
 of acknowledgment, was entitled to 
 great weight. A local custom, op- 
 posed to the provisions of a statute, 
 is not binding. Walker v. Trans- 
 ■portation Co., 3 Wall. (U. S.) 150; 
 S. P. Winter v. United States, Hemp. 
 (U. S.) 344. Custom cannot modify 
 a statute. The Forrester, Newb. 81. 
 An illegal practice prevailing among 
 officers of the government, no mat- 
 ter how long continued or extensive, 
 can never ripen into a binding usage. 
 Peirce v. United States, 1 N. & H. (U. 
 S.) 270. A foreign custom which is 
 bad in law, can confer no rights on 
 a party. Taylor v. Carpenter, 2 W. 
 & M. (U. S.) 2. A usage of the 
 board of directors of a bank, to per- 
 mit the cashier to misapply its 
 funds, will not exonerate his sure- 
 ties. Minor v. Mechanics' Bank of 
 Alexandria, 1 Pet. (U. S.) 46. A 
 usage, which would require those 
 who are in the legal use of the 
 waters of a harbor, as a highway, to 
 yield to others who are using them 
 for an unlawful purpose, will not be 
 upheld. The Maverick, 1 Spr. (U. S.) 
 23. Nor one for wharfingers to act 
 as agents, in accepting, on behalf of 
 consignees, goods arriving at their 
 several wharves. The Middlesex, 21 
 Law Kep. (U. S.) 14. Nor, indeed, 
 any usage that is unjust or opposed 
 to the policy of the law. To estab- 
 
 blish a local custom, derogating 
 from the general law, it is not 
 enough to prove that the act has been 
 frequently done ; it must be shown to 
 be so generally known and recog- 
 nized, that a fair presumption arises, 
 that the parties entered into their 
 contract, with a silent reference to 
 it. The Paragon, Ware (U. S.) 322. 
 A particular local usage, in contra- 
 vention of the general law merchant, 
 is not binding on those who have 
 entered into no contra-ct with refer- 
 ence to it. Sturgis v. Cary, 2 Curt. 
 (U. S.) 382 ; see Bank of Columbia v. 
 Lawrence, 2 Cr. (U. S. C. C.) 510. To 
 be binding, it must be general, and 
 well understood. If the usage is 
 clearly established, tliat the factor 
 has a right to charge commissions 
 on purchases, and on acceptances, 
 when not in funds to meet drafts at 
 maturity, such items ought to be 
 allowed. But commissions and in- 
 terest both cannot be charged on 
 advances. Snietz v. Kennedy, Riley 
 (S. C.) 218. The custom of railroad 
 companies to allow their contractors 
 the free use of their own roads, can- 
 not be extended so as to bind a 
 company to pay the expenses of its 
 contractors on the road belonging 
 to another corporation. Colcock v. 
 Louisville R. R. Co., 1 Strob. (S. C.) 
 329. The usage or custom of a par- 
 ticular port, in a particular trade, 
 will not control the language of a 
 policy of insurance. Rogers v. Me- 
 chanics' Insurance Co., 1 Story (U. S.) 
 603. To have that effect, it must be 
 some known, general usage or cus- 
 
THE USAGES OF TEADE, THEIE OFFICE. 
 
 181 
 
 judicial construction. But in order to have that effect it 
 must have been general, continued and unquestioned,** and 
 according to the case last cited, and according to the funda- 
 mental principles upon which the doctrine of usages and 
 customs rests, if the construction claimed to have been estab- 
 lished by usage has not been uniformly consistent therewith, 
 it cannot be invoked as having any binding force.^ Nor, 
 upon principle, could such a usage be invoked when clearly 
 opposed to the plain terms of the statute. "A custom," says 
 the court in a Louisiana case,^ " is without force in opposition 
 to a positive law,^ therefore it is not competent to show that 
 
 torn in the trade, both applicable 
 and applied to all parts of the State, 
 and so notorious as to aflford a pre- 
 sumption that all contracts of in- 
 surance in that trade are made with 
 reference to it. Id. Where a cus- 
 tom is relied on as imposing a par- 
 ticular duty, that custom must be 
 shown to exist at the place where 
 the transaction to which it relates 
 took place. Allen v. Lyles, 35 Miss 
 513. Proof of a custom by boats to 
 carry money for customers to gain 
 patronage, does not establish a cus- 
 tom to carry it for hire. Chouteau v. 
 Steamboat St. Anthony, 20 Mo. 519. 
 The custom of the merchants of 
 Mobile to retain notes and bills of 
 their country customers, after thej' 
 are paid, until the end of the year, 
 for settlement, may be given in evi- 
 dence to explain why a paid note 
 was not given up. Remy v. Duffee, 
 4 Ala. 365. 
 
 » Fellows V. New York, 24 N. Y. S. 
 C. 249 ; Meriam v. Harsen, 2 Barb. 
 {N. Y.) Ch. 232. 
 
 1 Brady, J., at page 254, in Fellows 
 V. New York, ante. 
 
 2 Oranwell v. Fanny Fosdick, 15 La. 
 An. 436. 
 
 3 Dwight V. Barton, 12 Allen (Mass.) 
 
 316. Where a transaction is within 
 the statute against usury, the usage 
 of trade, as to such transaction, can- 
 not be received in evidence to show 
 that it is not usurious. Dunham v. 
 Dey, 13 Johns. (N. Y.) 40; 16 Johns. 
 (N. Y.) 367; Bank of Utica w. Wager, 
 2 Cow. (N-. Y.) 712; Bank of Utica v. 
 Smalley, 2 Cow. (N. Y.) 770; New 
 York Firemen Insurance Company v. 
 Ely, 2 Cow. (N. Y.) 678. Nor of a 
 usage for factors to pledge the goods 
 of their principals is void, being 
 against a general rule of law. New- 
 bold V. Wright, 4 Rawle (Penn.) 195. 
 Or of a custom of the trade of Phil- 
 adelphia to allow interest on goods 
 sold, after six months. Henry v. Risk, 
 1 Dall. (Penn.) 265. Or of custom, 
 different from the law, in a particu- 
 lar place, to re-enter for a forfeiture 
 incurred by the non-payment of 
 rent. Stoever v. Whitman, 6 Binn. 
 (Penn.) 417. Or of a custom in the 
 trade between this country and Eng- 
 land, that the English merchant, on 
 receiving an indorsed bill of ex- 
 change, must return it immediately 
 to the indorser, on protest, and that 
 he exonerates the indorser, if he call 
 on the drawer, for payment. Brown 
 V. Jackson, 2 Wash. (U. S. C. C.) 24. 
 
182 THE USAGES OF TRADE, THEIE OFFICE. 
 
 by the usages of trade a transaction is not usurious when it 
 is within the statute against usury.* Of course, although 
 usage cannot repeal the plain words of a statute, yet, if its 
 meaning is doubtful, it furnishes a rational guide to its con- 
 struction,^ and where the practice under a statute has been 
 uniform for fifty years and more, the courts will not give it 
 a new construction under pretext of making it better,^ and 
 evidence is admissible to show that what otherwise might be 
 deemed a deviation in the usage is in fact not so.^ The 
 words "on the steamer" in a bill of lading, may be ex- 
 plained by parol proof of a general usage by which steam- 
 boats have barges in tow at certain stages of the water, and 
 load their goods on the barges, and the goods as loaded are 
 regarded as "on the steamer."* And generally where the 
 terms used in a bill of lading have acquired a peculiar mean- 
 ing by usage, evidence thereof is admissible, and the parties 
 will be presumed to have contracted in reference thereto and 
 used it in the usual sense.^ While it has been held that, as ap- 
 plied to inland navigation, the words " dangers of the river," 
 and " inevitable dangers of the river," evidence of usage fix- 
 ing their construction is admissible,^ yet a contrary rule has 
 been adopted as to the words "dangers of the sea," and 
 
 Or of the custom, in the Northern 222; State v. Jersey City, 24 N. J. L. 
 
 Neck of Virginia, for persons, hav- 108. 
 
 ing mere settlement rights, to trans- * Board v. Cronk, 5 N. J. Eq. 
 
 far them by a death-bed donation, 119. 
 
 without a will in writing. Westfall v. '' Lawrence v. McGregor, ante. 
 
 Singleton, 1 Wash. (Va.) 227. Or of » McClure v. Cox, 32 Ala. 617; Hib- 
 
 a custom that, when a seller of goods ler v. McCartney, 31 Id. 501. 
 
 receives a note of the consignee ^ Wayne v. Steamboat General Pike, 
 
 without the buyer's indorsement, the 16 Ohio 42. 
 
 maker of the note is alone answer- ^ Gordon v. Little, 8 S. & R. (Penn.) 
 
 able, and that the buyer is dis- 583; Sampson v. Gazzam, 6 Post. 
 
 charged. Prescott v. Hubbell, 1 Mc- (Ala.) 128. But not a usage of the 
 
 Cord. (S. C.) 94. carriers exempting them from lia- 
 
 * Dunham v. Dey, 13 Johns. (N. Y.) bility for losses arising from causes 
 
 40; Bank of Utica v. Wager, 2 Cow. clearly not within the meaning of 
 
 (N. Y.)712; New York Fireman's Ins. the term as generally applied and 
 
 Co. V. Ely, Id. 678. understood. Boon v. The Belfast, 40 
 
 5 Taylor v. Griswold, 3 N. J. Eq. Ala. 184. 
 
THE USAGES OF TKADE, THEIK OFFICE. 183 
 
 when by the bill of lading the goods were to be delivered in 
 good order, "dangers of the sea" excepted, it has been held 
 not admissible to show by usage that the ordinary exception 
 thereto would include an injury by rats.^ In a case in the 
 United States Court^ it was held not admissible to show that 
 by usage where a bill of lading provided that the goods 
 should be delivered in good order, " the dangers of the sea 
 only excepted," the owners of packet vessels between New 
 York and Boston are liable only for damages to the goods 
 caused by their own neglect. " Such evidence," said Story, 
 J., " would go, not to explain, but to vary and contradict the 
 contract.* The phrase " British weight," when used in a 
 charter party has been held explainable by evidence de hors, 
 as it may mean either gross or nett weight, according to 
 usage f so the meaning of the word " deliver," or rather what 
 constitutes a " delivery," by a usage of a place f and so of the 
 words " a good delivery," when no consignee is named,' and 
 generally where a new and unusual word is used, or a com- 
 mon word by a well settled usage of trade has acquired a 
 peculiar or technical sense as applicable to any particular 
 business or class of people, its meaning may be explained 
 and illustrated by proof of its sense according to the usage.* 
 "Terms," says Lord Ellenborough, in a leading case upon the 
 construction of instruments,^ " are to be understood in their 
 plain, ordinary and popular sense, unless they have gener- 
 ally, in respect to the subject-matter, or by the known usage 
 
 2 Aymer v. Astor,e, Cow. (N. Y.) 663. '^Furniss v.Howe, 8Wend.(N.Y.)247. 
 But SoAiage, C. J., dissented and deliv- ' Galloway v. Hughes, 1 Baily (S. O.) 
 ered an opinion giving very decided 553. 
 
 support to the doctrine that such « Eaton v. Smith, 20 Picli. (Mass.) 
 
 evidence is admissible. 150 ; Mercantile Ins. Co. v. State Ins. 
 
 3 TheSchoonerReeside,2Sum. (U.S.) Co., 25 Barb. (JST. Y.) 319; St. Nioho- 
 567. las Ins. Co. v. Mercantile Ins. Co., 5 
 
 *See also holding the same doc- Bas. (N. Y.) 288; Astor v. Ins. Co., 7 
 trine,' Tamey v. Wilson, 7 Yerg. Cow. (N. Y.) 202; Horn v. Mutual 
 (Tenn.) 340. Safety Ins. Co., 2 N. Y. 235; StebUns 
 
 6 Goddardv.Bulan,l'S.&,UoCoT:A. v. Globe Ins. Co., 2 Hall (N. Y.) 632. 
 
 (S. C.) 45. * ° Robertson v. French, 4 East 135. 
 
184 THE USAGES OF TKADE, THEIR OFFICE. 
 
 of trade, or the like, acquired a 'peculiar sense, distinct from 
 the popular sense of the same words."^ But such evidence is 
 not admissible to show that words of a plain and well known 
 signification have acquired a directly different sense, unless 
 the usage is precise, definite and universal where it exists, 
 but where the usage is established its reception in evidence 
 is a necessity, because the parties are presumed to have con- 
 tracted in reference to it, and a knowledge of it is essential 
 to give true effect to the contract according to its intent.^ 
 The rule deducible from all the cases may fairly be stated as 
 being when an expression used in a written instrument has a 
 technical meaning, evidence is admissible to show that it has 
 been used in that sense, and not in its ordinary meaning in 
 ■common parlance, although that may be perfectly clear and 
 unambiguous. In other words, evidence may be admitted to 
 ■create an ambiguity and then to explain it.^ But in order 
 to warrant the technical sense to prevail, it must be dis- 
 tinctly proved that it has acquired the particular meaning 
 ■claimed for it,* and whether it has or not is a question for 
 the jury.^ If a mercantile instrument is insensible when 
 read, according to the ordinary sense of the words used 
 therein, it is a question for the jury whether the words have 
 not acquired a definite meaning by mercantile usage.^ Evi- 
 •dence of this character has been admitted to show the mean- 
 ing of " summer leazes " in a lease to the plaintiff by which 
 Tie had a right to the use of cows to be depastured on lands 
 described as " summer leazes " and " after grass " respec- 
 
 ^ See also Boorman v. Johnson, 12 G. & J. (Md.) 136; Linsley v. Lovely, 
 
 Wend. (N. Y.) 573; Taylor v. Briggs, 26 Vt. 123. Evidence of usage was 
 
 2 C. & P. 525 ; Outwater v. Nelson, 20 admissible to show what is meant 
 
 iarb. (N. Y.) 29 ; Goodyear v. Ogden, by " six per cent, off for cash." 
 
 4 Hill (N. Y.) 104; Blaakett v. Eoyal » Clayton v. Greyson, 5 Ad. & El. 
 
 .Ins. Co., 2 0. & J. 249 ; Dawson v. 302; Beacon L. & F. Assurance Co. v. 
 
 .Kittle, 4 Hill (N. Y.) 107. Gibb, 7 L. T. N. S. 574. 
 
 2 Leaoh v. Beardslee, 22 Conn. 404 ; •* Taylor v. Briggs, 2 C. & P. 525. 
 
 Dalton V. Daniels, ante ; Eaton v. ^ Hills v. Evans, 31 L. J. Ch. 457. 
 
 Smith, ante; McClure v. Cox, 32 Ala.- ^ Asliworth v. Bedford, L. & R. 9, 
 
 617; Allegre v. Maryland Ins. Co., 2 C. P. 20. 
 
THE USAGES OF TRADE, THEIE. OFFICE. 185 
 
 tively, from February 2d to November. Upon the trial 
 evidence was oflfered of a custom that a lessor should put 
 his own cattle on the land called " summer leazes " up to 
 May 12th, and it was held admissible, as in effect evidence, 
 of the technical meaning of the word, and of the rights 
 which passed to the plaintiff under the lease.'' So to fix the 
 time when a bill becomes due, when by the printed terms 
 upon the invoice it is left indefinite. Thus, where these 
 words were printed on the invoice, " Terms — Net cash, to be 
 paid within six to eight weeks," and the goods not having 
 been paid for, suit was brought scarcely seven weeks after 
 the date ; the court admitted evidence of mercantile usage as 
 to when the bill matured, and the jury having found that by 
 such usage the credit had expired, a verdict for the plaintiff 
 was sustained.* So, too, evidence has been admitted to show 
 that by usage when it is said in a letter that a ship will sail 
 from St. Domingo in the month of October, it is generally 
 understood that she will not sail until the 25th of the same 
 month.^ In order to make evidence of a usage for any pur- 
 pose admissible and binding it must be reasonable, and in 
 determining this point the question is, whether it is such as 
 honest and right-minded men would regard as unfair and 
 unrighteous, and if so, it fails to stand the test requisite to 
 give it validity,^ and it must be certain and invariable and 
 such as both parties know or might have known upon rea- 
 sonable inquiry.^ The question in such cases is, whether 
 there is a well recognized practice and usage with reference 
 to the business to which it relates, which gives a particular 
 sense to the words employed in it, so that the parties may be 
 supposed to have used them in that sense.^ The evidence, 
 
 ' Tudgay v. Sampson, 30 L. T. N. ^ Allegre v. Ins. Co., ante; Gordon 
 
 S. 262, C. P. V. Little, ante ; Miller v. Burke, 68 N. 
 
 8 Ashworth v. Bedford, 9 L. R. C. Y. 615 ; Farmers' Bank v. R. R. Co., 
 
 P. 20. 72 N. Y. 188. In Steward v. Scudder, 
 
 ^ ChaurandeY. Augerstein,FeBike43. 24 N. J. L. 96, grain was sent by a 
 
 ^ Paxton V. Courtney, 2 F. & F. 131. country dealer to a commission mer- 
 
 2 Abbott V. Bates, 22 W. R. 488, C. P. chant with orders to sell for cash. It 
 
186 
 
 THE USAGES OF TRADE, THEIK OFFICE. 
 
 in order to be admissible, must be as to the fact of a gen- 
 eral usage and practice prevailing in the particular trade or 
 business, and not the judgment and opinion of the witnesses, 
 for the contract may safely and correctly be interpreted by 
 reference to the fact of usage, as it is presumed that they 
 knew of it they contracted in reference thereto; but the 
 judgment or opinion of witnesses affords no safe guide for 
 interpretation, because it is confined to their own knowledge.* 
 This species of evidence is admissible in many cases, to add 
 incidents to contracts and create liabilities on the part of 
 
 was sold and delivered, and a check 
 for the amount of the purchase 
 money sent to the dealer before it 
 was collected of the purchaser. 
 Within a week the purchaser failed, 
 never having paid the money, and 
 the merchant, brought an action 
 against the owner to recover the 
 amount, alleging that by the custom 
 of trade in New York, upon a sale for 
 cash, the purchaser has three or four 
 days in which to pay the money. It 
 was held that, in order to authorize 
 a verdict for the plaintiff, the evi- 
 dence must have shown such cus- 
 tom to have been at the risk of the 
 owner, " and so certain, uniform and 
 notorious that it must be presumed to be 
 understood by the parlies." In a Ver- 
 mont case, Catlin v. Smith, 24 Vt. 85, 
 where goods were consigned to a 
 commission merchant for sale with 
 instructions to him to " sell for cash, 
 or not on credit," and the commission 
 merchant sold them to a party who 
 said he would pay for them in a few 
 days, but before paying therefor 
 failed, it was held that the commis- 
 sion merchant could not defeat his 
 liability to the consignor by show- 
 ing a custom by which such sales 
 were regarded as for cash. The dis- 
 tinction between this case and the 
 
 New Jersey case arises from the 
 fact that the instructions were to 
 sell for cash, without any qualifica- 
 tion, while in this case the dealer 
 was specially directed not to sell on 
 credit, so that evidence of a usage 
 that a sale on credit was regarded as 
 a cash sale was expressly excluded, 
 and could not be admitted to over- 
 ride the positive instructions. Barks- 
 dale V. Brown, 1 N. & M. (S. C.) 519. 
 In Chapman v. Devereux, 32 Vt. 616, it 
 was held that a usage to regard a 
 sale on thirty days credit as a cash 
 sale was void, and so of a sale on six 
 days credit. Oreaves v. Hendricks, 
 (N. Y.) 16 Haz. Pa. Reg. 844. 
 
 * Lewis V. Marshall, 7 M. & G. 729. 
 A usage or custom must be proved 
 by facts and not from mere reports. 
 Mills V. Hallock, 2 Edw. Oh. (N. Y.) 
 652 ; Geary v. Meaghar, 33 Ala. 630 ; 
 Chesapeake Bank v. Swain, 29 Md. 483. 
 In Goodall v. New England Ins. Co., 
 25 N. H. 169, it was held that the evi- 
 dence of a director of the company 
 as to the usage or practice in regard 
 to giving consent to other insurance, 
 that "so far as his knowledge went " 
 a certain practice existed, was held 
 insufficient to establish a usage bind- 
 ing upon the assured, who had no 
 knowledge of it. 
 
THE USAGES OF TEADE, THEIR OFFICE. 187 
 
 parties thereto not appearing on the face of the contract. 
 Thus, in an English case^ it was held that evidence was 
 admissible to show that by the usage of the tobacco trade all 
 sales were by sample, although not so expressed in the 
 bought and sold notes, and consequently to establish an im- 
 plied warranty.® In a Massachusetts case,'' to an inquiry in 
 an application for insurance upon a manufactory, " are there 
 casks of water in each loft kept constantly full ?" the answer 
 was " there are casks of water in each room kept constantly 
 full," and the court held that evidence was admissible to 
 show that in the general use of language among manufac- 
 turers the whole of a loft or story appropriated to a particu- 
 lar department was called one room, although the same was 
 divided by a partition with doors, and that the meaning of 
 the word room, and whether there was any such general 
 use of language, was for the jury ; and that if there was 
 any such general use of the word room among manufac- 
 turers it need not be known and general among insurers in 
 order to affect a contract of insurance upon manufacturing 
 property, for they must be presumed to have so understood 
 it. In another Massachusetts case,^ the same general doc- 
 trine was applied to the words " store fixtures " in a policy 
 of insurance, the courts holding that it was competent to 
 show a well settled custom by which such words are applied 
 to all the furniture in the store, whether fixed or movable. "If," 
 said Chapman, J., "the term 'store fixtures' is a term of trade 
 commonly used among traders and insurers, and is used in 
 such a signification as to include any or all the articles men- 
 tioned as such in the report, those were insured by this policy." 
 In an action upon an agreement to sell a milk route and the 
 
 5 Syers v. Jones, 2 Exchq. entitled, " Proof of usage to establish 
 
 " See also, Snowden v. Warden, 3 a warranty." 
 
 Bawle (Penn.) 101, where the same ' Daniels v. Hud. fliver Ins. Co., 12 
 
 rule was adopted as to sales of cot- Cush. (Mass.) 416. 
 
 ton. Also, Cassidy v. Begaden, 6 J. * Whitmarsh v. Conway Ins. Co., 16 
 
 & S. (N. Y.) 180; Boorman v. Jenkins, Gray (Mass.) 657. 
 12 Wend. (N. Y.) 566. But see § 105, 
 
188 THE USAGES OF TEADE, THEIE. OFFICE. 
 
 good will thereof, the testimony of experts is admissible to 
 show a usage in the milk trade of selling such routes by the 
 can, and the recognized value thereof per can.* So in an 
 action on a promise to pay commissions to an insurance 
 agent, evidence of a usage or custom of the trade to pay 
 commissions only on premiums actually collected, is admis- 
 ble.-^ A usage among whalers, that where a boat's crew from 
 a vessel strikes a whale with a harpoon, and the harpoon 
 with the line attached to it remained in the whale, but the 
 line does not remain fast to the boat, the whale belongs to 
 the ship that first struck it with the harpoon, although a 
 crew from another ship pursue and finally capture it, if the 
 master of the first ship claims it on the spot, is valid and will 
 enable lhe owners of the first ship to recover its value of the 
 crew appropriating it.^ A custom that a railroad should 
 deliver freight on the platform of minor stations whose busi- 
 ness does not justify a warehouse, and that it should be 
 received there by the consignee on discharge from the car, 
 has been held to be a good custom, and sufficient to control 
 the common law liability of carriers in the neighborhood.' 
 A usage among depositors in certain banks to deposit a check 
 on or the next day after the day on which it was received, 
 and of the bank immediately to return any checks from the 
 clearing house, which the bank has not funds to cover, has 
 been held to be reasonable and valid.* A usage among 
 brokers to sell stocks, deposited as collateral security for a 
 call loan, on failure to pay on call, is valid and binding */ 
 known to the person depositing the stock.*" But such a usage 
 is not admissible to vary the terms of a special contract rela- 
 tive to the loan. In such a case the contract will contract 
 the usage, and not the usage the contract.^ In logging eon- 
 
 " Page v. Cole, 120 Mass. 37. " McMasters v. Penn. P. P. Co., 69 
 
 1 Miller v. Ins. Co., 1 Abb. (N. Y.) Penn. St. 374. 
 
 N. C. 470. * 3Ieri-ett v. Brackett, 60 Me. 524. 
 
 » Swift V. Gifford, 2 Low. (U. S. D. C.) ^ Colkd v. Ellis, 10 Pbila. (Penn.) 375. 
 
 110. ^Taylorv.Kelcliam,5'Roh%.{'Si.Y.)5m. 
 
THE USAGES OF TEADE, THEIR OFFICE. 189 
 
 tracts which provide that No. 1 logs shall be delivered and 
 paid for at a certain rate, it is competent to show what, by 
 the usage of the trade, are considered No. 1 logs, the con- 
 tract itself not fixing the grade.' A mercantile usage, that, 
 upon the proper storage of herring on receiving it, without 
 immediate examination, the purchaser does not waive objec- 
 tions to its quality, or variance from the order given, is ad- 
 missible.* 
 
 Phrases Explained by Usage, 
 
 Sec. 86. In very many cases words and phrases which, if 
 interpreted in their ordinary dictionary sense, would cause 
 an instrument to be ambiguous or meaningless, may be read 
 in connection with proof of a usage, so as to make the writ- 
 ten contract perfectly intelligible. This has been repeatedly 
 done in courts of law. Thus the word "privilege" has been 
 read with the meaning attached to it by the mercantile part 
 of the nation. (2/) So where a founder of a charity had, in a 
 deed of grant, described the objects of her munificence by 
 the words " Godly preachers of Christ's Holy Gospel," and 
 upon the interpretation difficulty arose as to the real mean- 
 ing of that designation, extrinsic evidence, to prove that at 
 the time of the grant there was a sect who were in the 
 habit of calling themselves by that name, was admitted, (z) 
 " Mauritius " has been held, according to mercantile accepta- 
 tion, to be an "Indian Island." (a) And "Amelia Island" 
 was held to denominate a region in which " Tiger Island " is 
 comprehended, and the strict sense of the word was departed 
 from because of the looseness of the ordinary use of these 
 
 ' Buseh V. Pollack, 41 Mich. 64. « Hinkel v. Welsh, 41 Mich. 664. 
 
 (y) Birch v. Depeyster, 1 Stark. 445, at 451, n. ; Trueinan v. Loder, 11 
 
 210 ; 4 Camp. 385. A. & E. 600 ; Milward v. Hibbert, 3 
 
 [z) Shore v. Wilson, 9 CI. & F. in Q. B. 135 ; Vallance v. Dewar, 1 Camp- 
 
 355, 580, per Ld. Cottenham ; see 503 ; Ougier v. Jennings, 1 (5arap. 505, 
 
 a}ao AUy.-Gen.v.Drummond,l'Dru.& 606, n. ; Kingston v. Knibs, 1 Camp. 
 
 War. 853 ; and on App., 2 H. of L. 837. 508, per Ld. EUenborough ; Godts v. 
 
 {a) Robertson v. Clarke, 1 Bing. Rose, 17 C. B. 229. 
 
190 THE USAGES OF TKADE, THEIK OFFICE. 
 
 ■words, a use which was compared to the common and inex- 
 act employment of the words London and Westminster. (5) 
 The phrase, " warranted to depart with convoy," was liter- 
 ally construed according to the usage amongst merchants, (c) 
 " Mess pork of Scott and Co." has been held to mean mess 
 pork manufactured by Scott and Co.{d) And in another 
 case, the words " Received on account of Bowman and Lay 
 for J. Mackinson," the words " for J. Mackinson," being 
 ambiguous, were explained by the evidence of a usage of 
 trade which was admitted at the trial, (e) An invoice, 
 worded to sell goods at " £2 10s. per cent, monthly," may 
 be explained by parol evidence, showing the meaning of 
 the words in their ordinary employment by persons in the 
 trade. (/) So also such evidence may be introduced to show 
 that a person whose name appears at the head of an invoice 
 as vendor is not in fact a contracting party. (^) 
 
 " Days "— Pitch Pine Timber. 
 
 Sec. 87. Where there was a clause in a bill of lading, 
 that cargo should be taken out in a certain number of days, 
 or that demurrage should be paid, evidence of usage was 
 admitted to prove that days as used meant working days, 
 and not running days. (A) In another case, the phrase 
 "pitch pine timber" was explained by usage, (*) and the 
 same evidence was admitted in the case of Bold v. Hay- 
 
 (6) Moxon V. Atkins, 3 Camp. 200. 38; Hudson v. Clementson, 18 C. B. 
 
 (c) Lethulier'a case, 2 Salk. 443. 213. As to evidence of a usage to 
 
 {d) Powell V. Horton, 2 Bing. N. C. pay an agent. Hutch v. Carrington, 
 
 668. 5 C. & P. 471. For a factor to sell in 
 
 (e) Bowman v. Horsey, 2 M. & his own name. Johnston v. Usburne, 
 
 Bob. 85. 11 A. & E. 549. As to renewal of 
 
 (/) Sohreiber v. Horsley, 11 Jur. K commission to introducing broker 
 
 S. 675. on every renewal of charter effected 
 
 {g) Holding v. Elliott, 5 H. & N. through him. Allan v. Sundius, 1 
 
 117. H. & C. 123 ; 31 L. J. Exchq. 307. 
 
 {h) Cochran v. Retberg, 3 Esp. 121. (i) Jones v. Clark, 2 H. & N. 725; 
 
 As to meaning of " loading in turn," see also Vallanee v. Dewar, 1 Camp, 
 
 see Robertson v. Jackson, 2 C. B. 413 ; 503 ; Robertson v. French, 4 East, 
 
 see also Schultz v. Leidmann, 14 C. B. 130. 
 
THE USAGES OF TRADE, THEIK OFFICE. 191 
 
 ner,{h) to explain a variance in the bought and sold notes 
 exchanged over the bargain. 
 
 Explanation by Usage — Lien Abrogated by. 
 
 Sec. 88. Again, in another case, where the principle of 
 the admission of technical evidence was approved of, it was 
 said the words "Sail from St. Domingo in the month of 
 October," were to be understood, when taken in connection 
 with the usage of the trade, as indicating that the ship would 
 not sail until the 25th. (Z) It is evident that plain words 
 have a stronger presumption in their favor than ambiguous 
 ones, and therefore it has been laid down that, when it is 
 sought to vary the meaning of such words, the evidence of 
 custom should be very strong, (m) A case which has inter- 
 est, as it indicates the actual abrogation of a right by a 
 custom, may be mentioned here. The court decided in that 
 case that a shipwright in the river Thames has no lien on a 
 ship taken into his dock to be repaired, unless there is an 
 express agreement to that effect, credit being given by the 
 usage of trade to the owner of the ship for the cost of the 
 repairs, {n) 
 
 Usage in Relation to Bill of Lading. 
 
 Sec. 89. Where, by a bill of lading of wool from Odessa, 
 
 [k] 1 M. & W. 343 ; see also Field their being masters or captains of 
 
 V. Lelean, 6 H. & N. 617 ; Fawkes v. the vessels. This custom, if existing, 
 
 Lamb, 8 Jur. N. S. 385 ; 31 L. J. Q. is in contravention of established 
 
 B. 98. law, and, in any event, it cannot be 
 
 (I) Chaurand v. Angerstein, 1 Peake shown when the manifest repels the 
 
 61 ; see also Yates v. Duff, 5 C. & P. existence of possible authority in 
 
 369. It is not competent, in an the captain. StiUman v. Hurd, 10 
 
 action by the owner of the cargo of Tex. 109. 
 
 a coasting vessel against a purchaser (m) Lewis v. Marshall, 7 M. & G. 
 of the same from the master of the 729 ; 13 L. J. C. P. 193. 
 vessel, he having no express author- (n) Mitchell v. Raitt, 4 Camp. 146 ; 
 ity to sell, to give evidence of a cus- see also Donaldson v. Foster, Abbott 
 torn of masters of such vessels, laden on Ship., pt. 4, oh. 1, s. 6. Such a 
 with lumber, to make sales in the usage will require to be clearly and 
 harbor of Brazos and along the uniformly well known and under- 
 southern coast of Texas, without stood among the parties. Davis v. 
 any other authority than the fact of New Brig, 9 Gilp. 473. 
 
192 THE USAGES OF TKADE, THEIK OFFICE. 
 
 freight was to be paid in London on delivery, at the rate of 
 " 80s. per cwt., gross weight, tallow and other goods and 
 grain or seed in proportion as per London Baltic printed 
 rates," it was held that extrinsic evidence was admissible to 
 show that, by the usage of the trade, the meaning of the bill 
 of lading was that 80s. per cwt. of tallow was to be taken as 
 the standard by which the rate of freight on all other goods 
 was to be measured, (o) 
 Bills of Lading and Other Matters. 
 
 Sec. 90. Evidence of usage, as we have seen, is admissible 
 to explain and give the trade meaning of terms employed in 
 bills of lading. Thus the words, " a clean bill of lading," 
 in their ordinary sense would be understood as simply refer- 
 ing to the condition of the bill itself, but by usage it imports 
 that the goods are to be " stowed under dech,"^ but it may 
 also be shown that it includes a stowage upon deck or other- 
 wise, according to the usage between the port of shipment 
 and the termini of the voyage.^ 
 
 Usage in Relation to Sale of Hops— Meaning of "Bale," "Wet 
 Oil," "About," "London." 
 
 Sec. 91. Again, in the hop trade, " sold 18 pockets Kent 
 
 hops at 100s.," means 100s. per cwt.(jo) A bale in the 
 
 gambler trade means a compressed package weighing on the 
 
 average 2 cwt.(g') And it appears that, by usage, oil is 
 
 "wet" if it contains any water, however little ;(r) that 
 
 " about " so many quarters has, as used in a delivery order, 
 
 a definite connotation ;(s) that "London" may be used in 
 
 various senses ;(^) and that the article called "Calcutta lin- 
 
 ^ Cherry v. Holly, 14 Wend. (N. ffvct, is not admissible. That must 
 
 Y.) 26. be looked for in the bill itself and 
 
 ^ Barber v. Brace, 3 Conn. 9. Evi- the usages incident to it. Lawrence 
 
 dence of intent, as an independent v. McGregor, 37 Penn. St. 240. 
 
 (o) The Russian Steam Navigation (r) Warde v. Stewart, 1 C. B. N. S. 88. 
 
 Co. V. Silva, 13 C. B. N. S. 610. (s) Moore v. Campbell, 10 Exch. 
 
 {p) Spicer v. Cooper, 1 Q. B. 424. 323. 
 
 (g) Gorrissen v. Perrin, 2 C. B. N. [t) Mallan v. May, 13 M. & W. 
 
 S. 681. 511. 
 
THE USAGES OF TKADE, THEIE OFFICE, 193 
 
 seed " may contain 15 per cent, of tares, rape and mustard, 
 without losing its right to the appellation " Calcutta linseed," 
 and that on the ground that, although the admixture of for- 
 eign substance is considerable, it is not sufficient to deprive 
 it of its distinctive character, and that there is a usage that 
 it should pass in the market under that name. 
 
 Sporting Usage — Particular Average. 
 
 Sec. 92. In a memorandum as to a race, the run described 
 was " four miles across country," and it was proved that in 
 sporting parlance these words did not allow the riders to go 
 through gates, (tt) Thus custom may say that on an agree- 
 ment for a lease the lessor prepares and the lessee pays for 
 the instrument, (-?;) although the general rule as to the sale 
 of property is that the vendee, who bears the expense of the 
 conveyance, should prepare it.{w) In the North Stafford- 
 shire Railway Co. v. Peek,{x) the majority of the court held 
 that the terms in a letter to carriers of goods from their cus- 
 tomers, " Please send the marbles not insured," were to be 
 read "according to the understanding of the language 
 between carriers and their customers," and in that light 
 they were interpreted to convey a request to carry the mar- 
 bles at the owner's risk. This decision, which was upon the 
 construction of the 7th section of the Railway and Canal 
 Traffic Act (17 and 18 Vict. c. 31), was reversed in the 
 House of Lords. So usage has been allowed to show that 
 " particular average " does not include expenses of recover- 
 ing or preserving the subject-matter of insurance on the 
 
 (u) Evans v. Pratt, 3 M. & G. 759 ; v. Counard, Cro. Eliz. 517. In the 
 
 4 Scott N. E. 370. case of a settlement of personal 
 
 {«) Qrissell v. Robinson, 3 Bing. N. property the practice is for the lady's 
 
 C. 11. solicitor to draw the settlement on 
 
 (w) Price v. Williams, 1 M. & W. marriage, and for the husband to 
 
 6 ; Poole v. Hill, 6 M. & W. 835 ; pay for it. Helps v. Clayton, 17 C. B. 
 
 Stephens v. De Medina, 4 Q. B. 422 ; N. S. 553. 
 
 but see The Duke of St. Albans v. (x) 10 H. of L. Gas. 473; 9 Jur. N. 
 
 Shore, 1 H. Bl. 274; Doe d. Clarke S. 914; 8 L. T. N. S. 768. 
 V. Stillwell, 8 Ad. & El. 645; Hallings 
 
 12* 
 
194 THE USAGES OF TRADE, THEIR OFFICE. 
 
 ground that it would not contradict the express terms of 
 the policy, (y) 
 Notes and Bills. 
 
 Sec. 93. Notes and bills are no exception to the rules in 
 regard to usage, and, as we have seen,^ they are in many 
 respects subject thereto.^ Thus, where a note is payable in 
 " Canada money," it may be shown what is generally under- 
 stood among brokers and others as to the meaning of the 
 words at the place where the note was made.* So where a 
 note was made payable in "cotton yarn at the wholesale 
 factory prices," it was held competent to show that by^ a 
 usage of manufacturers those terms meant a certain scale of 
 prices different from the actual wholesale prices in market.^ 
 In a case decided by the Supreme Court of Maine,® it was 
 held that where it was shown to be the custom of a New 
 Hampshire bank to receive payments of interest on notes in 
 advance, and suffer them to remain and still hold the sure- 
 ties, and this custom was fully known to both principal and 
 sureties, and they went into Maine to enforce a contract 
 made in New Hampshire arising out of a note to such bank, 
 whereon they were sureties, and interest in advance had been 
 taken on the note, of the principal, the sureties were held 
 not to be released by the taking of such interest in advance. 
 In a New York case,' where the defendant was sued as an 
 endorser upon a time check drawn in New York and paya- 
 ble at a bank in Connecticut, it was held that evidence of a 
 usage of all the banks in that State not to allow grace on 
 time checks, and that usage there determined the question 
 
 {y) Kidson v. The Empire Marine Ins. Co., 35 L. J. C. P. 250. 
 
 2 Ante, p. 25, [w). * Thompson v. Sloan, 23 Wend. (N. 
 
 ■^ Renner v. Columbia Bank, 9 Y.) 71. 
 
 Wheat. (U. 8.) 581 ; Loring v. Our- « Avery v. Stewart, 2 Conn. 69. 
 
 ney, 5 Pick. (Mass.) 16; Bank of Col- « Crosby v. Wyatt, 23 Me. 156. 
 
 umbia v. Magruder, 6 H. & J. (Md.) ' Bowen v. NeweU, 2 Duer (N. Y. 
 
 172; Bank of Washington v. Triplett, Sup. Ct.) 584. Reversed in Court of 
 
 1 Pet. (U. S.) 25; Mills v. U. S. Bank, Appeals, 8 N. Y. 190. 
 1 Wheat. (U. S.) 431. 
 
THE USAGES OF TEADE, THEIK OFFICE. 195 
 
 "whether any particular description of negotiable paper was 
 or was not admitted, was admissible and entitled the plain- 
 tiff to recover. But as stated in the note, this ruling was 
 reversed by the Court of Appeals, and in New York evi- 
 dence of local usage is held not admissible to rob negotiable 
 paper of its common law qualities or deprive the parties 
 thereto of their common law rights.* 
 
 As to Ambiguity and Addition of Terms — Meaning of Weekly 
 Accounts in Building Trade— How Words are to be Under- 
 stood — Presumption — Peculiar Sense, how shown. 
 
 Sec. 94. It is a most difficult thing to distinguish those 
 cases which have been decided on the ground that the usage 
 explained the writing from those which have been looked 
 upon as adding terms or incidents to it. Where only half a 
 thing is expressed, there is real ambiguity in the writing, 
 which can only be fully explained by the addition of a term 
 or incident. Where there is palpable ambiguity, the effect 
 is the same ; the addition of a term or the e;xplanation of the 
 terms which are there written gives a meaning to the writing, 
 which it did not possess without this expert evidence. One 
 or two more cases which seem to fall under the first of these 
 two heads may be alluded to in this place. In a case where 
 — by a contract under seal, by which the plaintiff contracted 
 to build for the defendant a house and premises — it was pro- 
 vided that " no alterations or additions should be admitted, 
 unless directed by the defendant's architect by writing under 
 his hand, and a weekly account of the work done thereunder 
 should be delivered to the architect every Monday next 
 ensuing the performance of such work," it was held that in 
 
 • Merchants' Bank v. Woodruff, 6 words, that the legal character of an 
 
 Hilt. (N. Y.) 174; also 26 Wend. (N. instrument cannot be changed by 
 
 Y.) 673. In Bowen v. Newell, 8 N. Y. usage. But see Stone v. Bradhwry, 14 
 
 190, the court held that the paper Me. 185, where it was held admissi- 
 
 was in law a draft, and that proof of ble to show that in certain kinds of 
 
 a usage among the banks in Connec- contracts, any description of written 
 
 ticut. to treat such instruments as instruments were regarded as bonds, 
 checks was not admissible. In other 
 
196 
 
 THE TJSAGES OF TKADE, THEIR OFFICE. 
 
 an action on the contract, parol evidence was admissible to 
 show that by the usage of the building trade, "weekly- 
 accounts " meant accounts of the day work only, and did 
 not extend to extra work capable of being measured. (z) 
 
 («) Myers v. Sari, 30 L. J. Q. B. 9; 
 7 Jur. N. S. 97. In a suit for wages, 
 there being no special contract 
 proved, it is proper for the plaintiflT 
 to show a custom in the business 
 that persons, employed as he was, 
 are; not to be dismissed till the end 
 of the season, and that the end of 
 the season by the same custom is 
 January 1, or July 1. After the jury 
 have'found the custom, it is still for 
 the court to decide what, if any, 
 effect it shall have. Given v. Char- 
 ron, 15;[Md. 502. So in an action by 
 a mechanic, to recover for work done 
 by him in the village in which he 
 resided, it is competent for him to 
 prove the customary charge for such 
 work^by mechanics of that village, 
 such evidence not being intended to 
 establish a " custom or usage." Pur- 
 sell V. McQueen, 9 Ala. 380. Where 
 by a written contract for the hiring 
 of slaves, it was expressly stipulated 
 that the service in which they were 
 to bej employed was "to cut cord 
 wood on the Mississippi river ,^at or 
 near Mills's Point, and for no other 
 purpose whatever," evidence of the 
 usage or custom of wood-cutters on 
 the Mississippi was excluded; the 
 words of the contract negativing 
 any reference to such usage. Bed- 
 ford V. Flowers, 11 Humph. (Tenn.) 
 242. Evidence of a particular usage 
 to pay, pro rata, on a contract of 
 hiring, if the slave does not work 
 the full term agreed on, cannot be 
 received, since the usage, if proved, 
 could not be .recognized. Petty v. 
 Gayle, 26 Ala. 472. Evidence of 
 
 usage in paying for services, unac- 
 companied by, and independent of, 
 evidence to charge the plaintiff with 
 notice of such usage, is inadmissible 
 to affect the plaintiff's claim for ser- 
 vices. Flynn v. Murphy, 2 E. D. 
 Smith (N. Y.) 378. And where a 
 contract fixes the price of work and 
 in terms provides that no extras 
 shall be allowed, a custom to the 
 contrary cannot control the express 
 stipulation of the parties. Phillips 
 V. Starr, 26 Iowa 349. Thus where 
 the wages of seamen appear by the 
 shipping articles, evidence of a fur- 
 ther compensation, by way of cus- 
 tomary privilege, cannot be received. 
 Bogert v. Cauman, Anth. (N. Y.) 70. 
 On a question involving the perform- 
 ance of the duties of a particular 
 service, evidence of the customary 
 duties of such service is admissible. 
 Vaughn v. Gardner, 7 B. Hon. (Ky.) 
 326. Where a usage, regulating the 
 compensation to be paid for a par- 
 ticular description of personal ser- 
 vices, has been proved, it is for the 
 court to say, whether the usage is or 
 is not reasonable. The true question 
 for the consideration of the jury, in 
 such case, is, whether the usage was 
 so generally known and acted upon, 
 that the parties, from that and the 
 other facts and circumstances proved, 
 must be presumed to have had refer- 
 ence to it for the compensation to be 
 paid ; as in such case it would be- 
 come, as it were, a part of their 
 agreement, and binding upon them. 
 Bodfish V. Fox, 23 Me. 90. In an 
 action for labor upon a vessel, built 
 
THE USAGES OF TEADE, THEIE OFFICE. 
 
 197 
 
 Some important words were used in the judgment on this 
 case by Mr. Justice Blackburn : " The decision of this case 
 turns simply upon the point — that the words of the written 
 contract are to be understood in that sense which the phrase 
 has acquired in the trade with regard to which it is used. 
 It is the prima facie presumption that it was the intention 
 of the parties to use it in that sense, and having expressed 
 
 by several owners, against one of 
 them, evidence of the usage of the 
 place, "that the owners were not 
 jointly liable for materials and labor 
 for the vessel, and that no one was 
 authorized to make contracts for 
 m.aterials and labor for the vessel, so 
 as to bind the owners generally," is 
 inadmissible. Leach v. Perkins, 17 
 Me. 462. A written contract for the 
 manufacture of any species of arti- 
 cles, cannot be affected by proof of 
 a custom that, in the absence of an 
 express agreement, the manufactur- 
 ers shall not be held to warrant their 
 castings against latent defects; and 
 that, in case of apparent defects, 
 they shall be entitled to have the 
 articles returned to them within a 
 reasonable time, and to replace them 
 with new ones. Whitmore v. South 
 Boston Iron Co., 2 Allen (Mass.) 52. 
 A locator of land, without an express 
 agreement to receive part for his ser- 
 vices, is iiot entitled by the custom 
 of the country to any part, but must 
 resort to his remedy at law for com- 
 pensation, there being no circum- 
 stances in the case to give a court 
 of equity jurisdiction. Watkins v. 
 Eastin, 1 A. K. Marsh. (Ky.) 402. 
 See Bodley v. Craig, 1 T. B. Men. 
 (Ky.) 77. In an action on an agree- 
 ment to build an octagonal cellar 
 wall at a certain price by the foot, 
 evidence of the usage of measuring 
 the angles of such walls, and of the 
 
 proper mode of measuring the angles 
 of rectangular walls, is admissible. 
 Ford V. Tirrell, 9 Gray (Mass.) 401. 
 A usage among printers and book- 
 sellers, that a printer, contracting to 
 print for a bookseller a certain num- 
 ber of copies, shall not print with 
 the same types, while standing, an 
 extra number for his own use, is 
 reasonable, and not in restraint of 
 trade. Williams v. Oilman, 3 Me. (3 
 Greenl.) 276. A usage among manu- 
 facturing corporations to give an 
 honorable discharge to an operative 
 who has worked faithfully with them 
 for twelve months, and has given a 
 fortnight's notice of an intention to 
 leave, whereby such operative ma}' 
 obtain employment in other mills, 
 does not render it obligatory upon 
 those corporations to give such dis- 
 charge in all cases where the fore- 
 going conditions are complied with ; 
 but the giving of such discharge is a 
 matter of discretion and judgment 
 with the corporation. Thornton v. 
 Suffolk Manufacturiny Co., 10 Cush. 
 (Mass.) 376. In England by general 
 usage a general hiring of a servant 
 is treated as a hiring for a year, but 
 in this country no such usage exists, 
 and consequently the doctrine pre- 
 dicated thereon does not prevail. 
 Kansas Pacific R. R. Co. v. Roberson, 
 3 Cal. 142 ; Wood's Law of Master 
 and Servant, 272-274. 
 
198 THE USAGES OF TRADE, THEIR OFFICE. 
 
 themselves in a written contract making use of the phrase, 
 it is prima facie, as a matter of construction of the contract 
 to be taken that they used the phrase in the particular 
 limited sense which it has acquired in the trade. That 
 peculiar and limited sense, if such an one had been acquired, 
 must be shown by parol evidence; and this having been 
 shown, then the presumption is that that was the sense in 
 which the parties making the contract used it. I do not 
 think that in order to introduce this extrinsic evidence it is 
 necessary that the phrase should be at all on the face of it 
 ambiguous. It is a well settled rule of evidence that all am- 
 biguous expressions in reference to extrinsic matters in con- 
 tracts, coming under the head of latens ambiyuitas, may be 
 explained by parol, the court giving to the meaning so sup- 
 plied its legal sense and application.^ The object of this 
 class of proof is to enable the court to arrive at the real in- 
 tention and relation of the parties, consequently, the only 
 office of such proof is to explain, and not to modify or vary 
 the contract.-^ But where the contract is plain in all its pro- 
 
 ^ Devonshire v.Niell,2'L.Ji.lr.l?,2; &c., on my stock of all kinds in 
 
 Doe V. Hiscocks, 7 M. & W. 367. Twiggs county," it was held that 
 
 ''■Franklin v. Mooney, 2 Tex. 452; parol evidence was admissible to 
 
 Purcell V. Burns, 39 Conn. 429 ; Ellis show what kind of stock was in- 
 
 V. Oratvford, 39 Cal. 523; Thayer v. eluded in the lien. Saulsbury v. 
 
 Torrey, 37 N. J. L. 839 ; Acker v. Ben- Blandy, 60 Ga. 646, and generally 
 
 der, 33 Ala. 230; Dana v. Fielder, 12 where a latent ambiguity exists in 
 
 N. Y. 40; Nelson V. Sun, (Sec, Ins. Co. a contract, parol evidence is not 
 
 71 N. Y. 453 ; Higgins v. Ins. Co. 74 only admissible, but indispensable to 
 
 Id. 6 ; Myers v. Lathrop, 73 Id. 315 ; enable the court to ascertain and 
 
 Errico v. Brand, 9 Hun. (N. Y.) 654. carry into effect the real intention 
 
 Thus, where a written contract was of the parties. Dunham v. Gannett, 
 
 made for the sale of " 600 casks " of 124 Mass. 151 ; Tuxhury v. French, 41 
 
 black lead, "at $170 gold, per 100 Mich. 7; Kirkpatrich v. Brown, 59 
 
 lbs." oral evidence of the size of the Ga. 450 ; Clarke v. Adams, 83 Penn. 
 
 casks agreed upon was held admissi- St. 309 ; Shuetze v. Bailey, 40 Mb. 69 ; 
 
 ble. Keller v. Webb, 125 Mass. 88. So Hovei- v. Tenney, 36 Iowa 80 ; Paul v. 
 
 where a written contract for ad- Denings, 32 Md. 403 ; Richard v. 
 
 vances on cotton, provided that for Schegelmich, 65 N. C. 150 ; Rugeley v. 
 
 the purpose of securing the same, Ooodloe, 7 La. An. 295 ; Hartwell v. 
 
 " I hereby create a lien in your favor, Camman, 10 N. J. Eq., 128 ; Wilson v. 
 
THE USAGES OF TKADE, THEIK OFFICE. 
 
 199 
 
 visions, or the ambiguity, if any exists, is patent, parol evi- 
 dence is not admissible to vary or contradict any of its pro- 
 visions.^ But, tbis rule, from necessity, is subject to numerous 
 exceptions. Thus, a party may sbow that certain parts of 
 the contract were inserted by the fraud of one of the parties, 
 or that certain things that were agreed upon were fraudu- 
 lently omitted,^ or that an independent or collateral agree- 
 
 iJo6ertso«,7 J. J.Mar.(Ky.) 78; Patrick 
 V. Grant, 14 Me. 233; Graham v. 
 Hamilton, 5 Ired. (N. C.) L. 428; 
 Cooper V. Berry, 21 Ga. 526 ; Hall v. 
 Davis, 36 N. H. 569; Hotckiss v. 
 Barnes, 34 Conn. 27 ; Boyle v. Estor- 
 net, 13 La. An. 318 ; Bowen v. Slaugh- 
 ter, 24 Ga. 338 ; Williams v. Waters, 
 36 Id. 454 ; Masters v. Freeman, 17 
 Ohio St. 323; Wilson v. Home, 37 
 Miss. 477. A patent ambiguity ex- 
 ists in an instrument when, from its 
 perusal, it plainly appears that 
 something more must be added be- 
 fore a person can ascertain which, of 
 several things, is meant. MoNair v. 
 Laler, 6 Minn. 435. 
 
 ' Warren v. Grew, 22 Iowa 315; 
 Peterson v. Grover, 20 Me. 363 ; Beck- 
 ley V. Munson, 22 Conn. 299 ; Albert 
 V. Zeigler, 29 Penn. St. 50 ; Bradley v. 
 Bentley, 8 Vt. 243 ; Huffman v. Ham- 
 mer, 17 N. J. Eq. 269 ; Richardson v. 
 Comstock, 21 Ark. 69; Theuner v. 
 Schmidt, 10 La. An. 125; Robinson v. 
 Magarity, 28 111. 423; Wright v. 
 Deklyne, Pet. (U. S. C. C.) 199; Jones 
 V. Parmer, 11 Paige Ch. (N. Y.) 650; 
 Young v. Frost. 5 Gill. (Md.) 287; 
 Hoxie V. Hodges, 1 Oreg. 251 ; West v. 
 Kelly, 19 Ala. 353 ; Huse v. McQuade, 
 52 Mo. 388; Brandon Mfg. Co. v. 
 Morse, 48 Vt. 322 ; Mitchell v. Univer- 
 sal Life Ins. Co. 54 Ga. 289 ; Corwith v. 
 Culver, 69 111. 502; Fitz v. Comey, 118 
 Mass. 100; Sticcession of GhiiUory, 
 29 La. An. 495 ; Stuart v. Morrison, 
 
 67 Me. 549; Barnand v. Gaslin, 23 
 Minn. 192 ; Morgan v. Adrian, 77 N. 
 C. 83 ; Dixon v. Clayville, 44 Md. 573 ; 
 Oliver V. Shoemaker, 35 Mich. 464; 
 ilfiMer V. Fletcher, 27 Gratt. (Va.) 403. 
 ^ Starfc V. Liitlepage, 4 Rand (Va.) 
 368; TFciddeZ; V. Glassell, 18 Ala. 561; 
 Baltimore Steamboat Co. v. Brown, 54 
 Penn. St. 77 ; Townsend v. Cawler, 31 
 Ala. 428; ifiinier v. B%eM, 30 111. 
 228 ; Hunt v. Carr, 3 la. 581 ; Pierce 
 V. Wilson, 34 Ala. 596 ; Holbrook v. 
 Surf, 22 Pick. (Mass.) 546; Ledden 
 V. Myers, 20 How. (U. S.) 506. Es- 
 pecially in equity. Chetwood v. 
 Brittain, 2 N. J. Eq. 438; Phyfe v. 
 Warden, 2 Edw. Ch. (N. Y.) 47; 
 Wesley v. Thomas, 6 H. & J. (Md.) 
 24; Elliott v. Connell, 13 Mill 91; 
 Christ V. Diffenbach, 1 S. & E. (Penn.) 
 464; Mallory v. ieacA, 35 Vt. 156. 
 A party may show that his signature 
 was obtained by fraud. Lull v. Cass, 
 43 N. H. 62. Of course the burden 
 of establishing the fraud is upon the 
 party alleging it, and as the law 
 presumes in favor of innocence and 
 honesty, the proof must be full, 
 complete and establish a clear pre- 
 ponderance, or the claim must fail. 
 Pierce v. Wilson, 34 Ala. 376 ; Davis 
 V. Stern, 15 La. An. 176 ; Sanford v. 
 Handy, 23 Wend. (N. Y.) 126; Hun- 
 ter V. Bilyeu, 30 111. 228 ; Hamilton v. 
 Congers, 28 Ga. 276 ; Van Buskirk v. 
 Day, 22 111. 260 ; Farrell v. Bean, 10 
 Md. 217; Selden v. Myers, 20 How. 
 
200 
 
 THE USAGES OF TRADE, THEIB OEEICE. 
 
 ment affecting the contract was subsequently entered into,* 
 
 (U.S.) 506. Parol evidence is always 
 admissible to show that the contract 
 is illegal or contrary to the rules of 
 sound public policy, as that it is 
 usurious. Fenwick v. Ratcliffe, 6 T. 
 B. Men. (Ky.) 154; Succession of 
 Fletcher, 11 La. An. 59. Or that it is 
 without consideration. Groesbeck v. 
 Seeley, 13 Mich . 329 ; Clark v. Hough- 
 ton, 12 Gray (Mass.) 38; Wynne v. 
 Whisenant, 37 Ala. 46 ; Luffhurrow v. 
 Henderson, 30 Ga. 482. Or what the 
 consideration in fact was. Beckels v. 
 Cunningham, 14 Miss. 358; Long v. 
 Davis, 18 Ala. 801 ; Herrick v. Bean, 
 20 Me. 51 ; Fay v. Blackstonce, 31 111. 
 538; Knight v. Knight, 28 Ga. 165; 
 Newton v. Jackson, 23 Ala. 535. 
 
 * Ford V. Smith, 25 Ga. 675 ; Adler 
 V. Friedman, 16 Cal. 138 ; Phillips v. 
 Preston, 5 How. (U. S.) 278; Cart- 
 wright V. Clayton, 25 Ga. 85 ; McDon- 
 ald V. Stewart, 18 La. An. 90 ; Steams 
 V. Hall, 9 Gush. (Mass.) 31 ; Rubber 
 Co. V. Dunklee, 30 Vt. 29; Rigsbee v. 
 Bowler, 17 Ind. 167 ; Dictator v. Heath, 
 56 Penn. St. 290 ; Brock v. Sturdevant, 
 12 Me. 81. Thus it may be shown 
 that the original contract is dis- 
 charged, and that an independent 
 contract founded on a new consid- 
 eration has been made by the par- 
 ties to take the place of the written 
 contract; but it must appear that 
 the old contract, to the extent that 
 it is covered by the new one, has 
 been abandoned, as new provisions 
 cannot be engrafted upon the writ- 
 ten contract by parol. The new 
 contract must be entire of itself, and 
 take the place of the old one in the 
 particular matter to which it relates. 
 Adler V. Friedman, 16 Cal. 138 ; Flan- 
 ders V. Fay, 40 Vt. 316 ; Marshall v. 
 Baker, 19 Me. 402. So a new and 
 
 distinct agreement on a new consid- 
 eration may be shown by parol, 
 whether it be a substitute for the 
 written contract, or in addition to, 
 or beyond it. Shepherd v. Wysong, 3 
 W. Va. 46 ; Butler v. Smith, 35 Miss. 
 457 ; Hutchins v. Hubbard, 34 N. Y. 
 24. Thus, it may be shown that, by 
 a parol agreement between the par- 
 ties to a written contract, compensa- 
 tion for services, in addition to that 
 named in the instrument, has been 
 agreed upon. Richardson v. Hooper, 
 13 Pick. (Mass.) 446. That a note 
 signed by one as surety was not to 
 be binding, unless the signature of 
 another person was obtained thereto. 
 Butler V. Smith, ante. That the time 
 for the performance of a contract 
 has been extended. Steams v. Hall, 
 9 Gush, (Mass.) 31. Or any modifi- 
 cation of a written contract made 
 upon a good consideration. Holmes 
 V. Douw, 9 Gush. (Mass.) 135. So it 
 may be shown that, by a subsequent 
 agreement, a place of payment was 
 agreed upon, or an agent appointed 
 to receive the money. Cummings v. 
 Putnam, 19 N. H. 569. The rule in 
 reference to subsequent parol agree- 
 ments, changing the terms of a writ- 
 ten contract, is that such changes 
 are valid and admissible in evidence 
 when predicated upon a valid con- 
 sideration, and when the original 
 contract would have been valid if 
 made by parol ; but not when there 
 is no consideration therefor, or when 
 the original contract would be in- 
 valid if made by parol. Rubber Co. 
 V. Dunklee, 30 Vt. 29; Rigsbee v. 
 Bowler, 17 Md. 167 ; Brock v. Sturde- 
 vant, 12 Me. 81 ; Dictator v. Heath, 56 
 Penn. St. 290. So, too, collateral 
 and independent facts, about which 
 
THE USAGES OP TEADE, THEIR OFFICE. 
 
 201 
 
 or that a part of the contract was not reduced to writing,^ 
 
 the written contract is silent, may be 
 shown by parol. Ruggles v. Swain- 
 vick, 6 Minn. 526; Van Buskirk v. 
 Roberts. 31 N. Y. 661. Parol evi- 
 dence is admissible to show a waiver 
 of some provision of the contract. 
 Wood V. Perry, 1 Barb. (N". Y.) 113; 
 Childs V. Jones, 8 B. Monr. (Ky.) 51; 
 Willey V. Hall, 8 la. 62; Leathe v. 
 Bullard, 8 Gray (Mass.) 545. As that 
 a rate of interest agreed upon in a 
 note or contract has been reduced. 
 Adler v. Friedman, 16 Cal. 138. Or 
 that the time for payment or per- 
 formance has been extended. Parker 
 V. Syracuse, 31 N. Y. 376. And, gen- 
 erally, to show that any provision of 
 the contract has been abandoned or 
 rescinded. Flynn v. iloKeon, 6 Duer 
 (N. Y.) 203 ; Parker v. Syracuse, ante ; 
 Bank v. Curtis, 24 Me. 36; Whitcher 
 V. Shaituck, 3 Allen (Mass.) 319. Or 
 that by a subsequent agreement be- 
 tween the parties, predicated on a 
 new consideration, new stipulations 
 were added thereto, or that its terms 
 were varied. Leeds v. Fursman, 17 
 La. An. 32; Rogers v. Atkinson, 1 
 Ga. 12. 
 
 '' Winn v. Chamberlain, 32 Vt. 318 ; 
 Kieth V. Kerr, 17 Ind. 284; Moss v. 
 Green, 41 Mo. 389. The rule seems 
 to be that where writing, although 
 embodying an agreement, is mani- 
 festly incomplete, and not intended 
 by the parties to exhibit the whole 
 agreement, but only to define some 
 of its terms, the writing is conclu- 
 sive as far as it goes, but such parts 
 of the actual contract as are not em- 
 bodied within its scope may be estab- 
 lished by parol. The Alida, 1 Abb. 
 Adm. (U. S.) 173; Webster v. Hodg- 
 kins, 25 N. H. 128 ; Taylor v. Galland, 
 3 Greene (Iowa) 17 ; Miller v. Fitch- 
 
 thorn, 31 Penn. St. 252; Cra^ie v. 
 Elizabeth Association, 29 N. J. L. 302. 
 Thus where a contract is silent as to 
 the place of deliverj', parol evidence 
 is admissible to show that the parties 
 agreed on a place of delivery. Mus- 
 sleman v. Stoner, 31 Penn. St. 265. So 
 the time of delivery. Johnston v. 
 McCrary, 5 Jones (N. C.) L. 369. And 
 generally where a contract is mani- 
 festly incomplete, although it em- 
 bodies an agreement, yet when it 
 appears upon the face of the writing 
 itself that it only embodies a part of 
 the contract between the parties, 
 while the writing is conclusive as 
 far as it goes, parol evidence is ad- 
 missible to show what the contract 
 between the parties was as to those 
 matters not reduced to writing. 
 Winn V. Chamberlain, 32 Vt. 318; 
 Webster v. Rodgkins, 25 JST. H. 128. 
 As where A. makes a contract in 
 writing with B. to sell him a certain 
 amount of standing timber for a 
 certain sum, parol evidence is ad- 
 missible to show what tract the tim- 
 ber was to be taken from. Pinney 
 V. Thompson, 3 Iowa 74. So where 
 there is a' reference in a written con- 
 tract to a verbal agreement between 
 the parties, parol evidence is admis- 
 sible to establish the verbal agree- 
 ment, even though it adds material 
 terms and conditions to the written 
 contract. Ruggles v. Swainvick, 6 
 Minn. 526. But it must be remem- 
 bered that it is only in cases where 
 the contract itself shows that it rests 
 partly in parol that such evidence is 
 admissible. The mere fact that the 
 contract is defective is not enough. 
 Mussleman v. Stoner, 31 Penn. St. 265 ; 
 Young v. ' Jacoway, 17 Miss. 212. 
 Where a writing does not purport 
 
202 
 
 THE USAGES OF TRADE, THEIB, OFFICE. 
 
 or that in some respects the terms of the contract were 
 
 to give the whole contract, and it is 
 evident from an inspection of the 
 instrument that it was not intended 
 as a contract or to express all that 
 was agreed upon between the par- 
 ties, parol evidence is admissible to 
 show an agreement aliunde. Thus 
 where A. buys a horse of B., and, 
 upon payment of the price, B. gives 
 to A. a writing in these words : " A. 
 bought of B. a horse for the sum of 
 $25," signed B., this precludes A. 
 from denying the purchase or the 
 price agreed upon, but it does not 
 preclude him from showing that B. 
 warranted the horse to Tdb sound. 
 Allen V. Pink, 4 M. & W. 140. See 
 also Executor of Corbin v. Sergent, 9 
 N. Y. S. C. 107, where it was held 
 that an agreement for the sale of a 
 farm might be shown, notwithstand- 
 ing a bond and mortgage had been 
 given by the purchaser in pursuance 
 of the agreement, the court holding 
 that the case did not fall within the 
 rule tliat the contract should be 
 shown by the written instrument, as 
 such instrument did not purport to 
 express the agreement. In all other 
 cases the verbal contract between 
 the parties is regarded as merged in 
 the written contract, and no part of 
 it can be shown to rest in parol. 
 Crane v. Elizabeth Association, &c., 29 
 N. J. L. 302. Thus where a contract 
 in writing for the -sale and delivery 
 of property is silent as to the time of 
 delivery, parol evidence is admissi- 
 ble to show when the property was 
 to be delivered. Johnston v. MeOi-ary, 
 5 Jones (N. C.) 369. And where it 
 was to be delivered. Mussleman v. 
 Stoner, 31 Penn. St. 265. So to show 
 to whom credit was given when a 
 doubt in that respect fairly arises 
 
 upon the face of the instrument. 
 Dessau v. Bourne, 1 McAll. (U. S.) 20; 
 May V. Hewett, 33 Ala. 161 ; Smith v. 
 Alexander, 31 Mo. 193. Or to iden- 
 tify the parties when there are two 
 of the same name. Mosely v. Martin, 
 37 Ala. 216; Henderson v. Hackney, 
 23 Ga. 383 ; Beauvais v. Wall, 14 La. 
 Ann. 199; State v. Weare, 38 N. H. 
 314; Saioyer v. Boyle, 21 Tex. 28; 
 Tuygle v. McMath, 38 Ga. 648 ; Hop- 
 kins V. TJpsher, 20 Tex. 89. Or to 
 identify the subject-matter of the 
 contract when it is fairly doubtful to 
 what it applies. Cary v. Thompson, 
 1 Daly (N. Y. C. P.) 35 ; Mayor v. 
 Butler, 1 Barb. (N. Y.) 325; Almyner 
 v. Dulith, 5 N. Y. 28; Aldrich v. 
 Eshleman, 46 Penn. St. 420. To show 
 what land is referred to in a deed or 
 sheriff's levy. Stewart v. Chadwick, 
 8 la. 463 ; Doe v. Eoe, 20 Ga. 689 ; 
 Hughes v. Sandal, 25 Tex. 162. To 
 identify monuments referred to in a 
 deed. Robinson v. White, 42 Me. 209; 
 Afferty v. Conover, 7 Ohio St. 99. To 
 prove that an action or prosecution 
 is brought for the same matter cov- 
 ered by a previous judgment. State 
 v. demons, 9 la. 534. As that water, 
 the rights to which have been adju- 
 dicated in a former suit, is the same 
 that is embraced in a later one. 
 Walsh V. Harns, 10 Cal. 891. So to 
 locate and identify land covered by 
 a contract to convey, or described 
 in a deed by general descriptions as 
 " lands now occupied by me." Brink- 
 e»-Ao#v. J.Zp,35Barb. (N.Y.)27. So 
 to identify animals or other property 
 sold under a written contract. Mar- 
 shall V. Gndly, 46 111. 247 ; Brooks v. 
 Aldrich, 17 N. H. 443 ; Milvin v. Fel- 
 lows, 33 N. H. 401. Or to identify 
 wood covered by a bill of sale or 
 
THE USAGES OP TRADE, THEIK OFFICE, 
 
 203 
 
 waived,^ or upon a sufficient consideration changed.'' So, too, 
 parol evidence is admissible to apply a written contract to 
 its proper subject-matter,* or to identify the parties thereto.* 
 
 mortgage. Sargent v. Salberg, 21 
 Wis. 132 ; Rugg v. Hale, 40 Vt. 138. 
 Parol evidence of the acts and dec- 
 larations of the parties to a written 
 contract, after its execution, is admis- 
 sible to show what interpretation 
 they put upon it, as well as to show 
 what conditions of it were waived. 
 But such evidence is admissible for 
 no other purpose, and cannot be 
 used to alter, vary, enlarge or 
 restrict the contract itself. Bamahy 
 V. Sauer, 18 La. Ann. 148 ; Knight v. 
 N. E. Worsted Co., 2 Cush. (Mass.) 
 271; Spencer v. Babcock, 22 Barb. (N. 
 Y.) 826; French v. Hayes, 43 N. H. 
 30; Emery v. Webster, 43, Me. 204. 
 So when the meaning of the parties 
 to a contract is not clear, it may be 
 gathered from proof of extrinsic 
 facts, such as the acts and conduct 
 of the parties under it. Farmers' 
 Bank v. Winfield, 24 Wend. (N. Y.) 
 419; Lowry v. Adams, 22 Vt. 160. 
 As to show whether a memorandum 
 at the foot of a contract was intended 
 as a part of it. Vergan v. McGregor, 
 23Cal.339. Whether it was intended 
 to bind the principal or the agent by 
 a contract. R. R. Co. v. Middleton, 
 20 111. 629. The purpose for which 
 a note or account was assigned. 
 Cousins V. Westcott, 15 la. 253. Or 
 that a note, deed or contract was to 
 be held in escrow. Beale v. Poule, 
 27 Md. 645. 
 
 * Bryan v. Hunt, 4 Sneed. (Tenn.) 
 548; Willey v. Hall, 8 la. 62; Leaihe 
 V. Bullard,S Gray (Mass.) 545; Wren 
 V. Fargo, 2 Oreg. 19 ; Parker v. Syra- 
 cuse, 81 N. Y. 376. 
 
 ' Leeds v. Fossman, 17 La. Ann. 32 ; 
 Rogers v. Atkinson, 1 Ga. 12, 
 
 « Handy v. Matthews, 38 Mo. 121 ; 
 Robinson \. White, 42 Me. 209 ; Gould 
 V. Lee, 55 Penn. St. 99; Fitch y. Archi- 
 bald, 29 N. J. L. 160 ; Stewart v. Chad- 
 wick, 8 Iowa 463 ; Bennett v. Pierce, 
 28 Conn. 315. 
 
 " Beauvais v. Wall, 14 La. An. 199; 
 Moseley v. Mustin, 37 Ala. 216 ; Smith 
 V. Alexander, 31 Mo. 193 ; Garwood v. 
 Garwood, 29 CaL 514 ; Walker Y.Wells, 
 25 Ga. 141 ; Tuygle v. McBIath, 38 Id. 
 648 ; Hopkins v. Upshur, 20 Tex. 89. 
 Thus, it may be shown that the con- 
 tract was intended for the joint ben- 
 efit of the members of a firm, 
 although made to one of them only. 
 Stone V. Aldrich, 43 N. H. 52. That 
 an order drawn on a third person 
 was to be paid in a certain kind of 
 property. Hinneman v. Rosenback, 
 39 N. Y. 98. But such evidence is 
 never admissible when the intention 
 of the parties can be gathered from 
 the instrument itself Stevens v. Hays, 
 8 Ind. 277. And unless fraud is 
 shown, parol evidence is never ad- 
 missible to alter, vary or change the 
 terms of a written contract, as, that 
 a promissory note should only be 
 paid in a certain contingency. Hatch 
 v. Hyde, 14 Vt. 25 ; Adams v. Wilson, 
 12 Mete. (Mass.) 138 ; F}rwin v. Saun- 
 ders, 1 Cow. (N. Y.) 249; Swank v. 
 Nichols, 24 Ind. 199; Foy v. Black- 
 stone, 31 III. 528 ; Boody v. McKinney, 
 23 Me. 517. Or that a draft payable, 
 generally was to be paid at a partic- 
 ular bank. Patten v. Newell, 30 Ga. 
 271. Or that a note payable in in- 
 stallments was to become due on 
 failure to pay an installment. Blake- 
 man V. Wood, 3 Sneed (Tenn.) 512. 
 Or that a note was renewed upon a 
 
204 
 
 THE USAGES OF TRADE, THEIR OFFICE. 
 
 Without stopping to enumerate the numerous exceptions to the 
 general rule excluding parol evidence where it contradicts or 
 
 condition which has not been com- 
 plied with. Warren Academy v. Star- 
 rett, 15 Me. 443. Or that a note was 
 intended as a receipt. Billings v. 
 Billings, 10 Gush. (Mass.) 178; City 
 Bank v. Addins, 45 Me. 455. Or that 
 payment of a note was not to be 
 enforced so long as the interest was 
 paid. Church v. Stetson, 5 Pick. 
 (Mass.) 506. Or that a guardian's 
 note was not to be paid unless there 
 were assets of the ward in his hands. 
 Aren v. Hoffman, 41 Miss. 616. Or 
 that it is payable in any thing but 
 money. Larg v. Johnson, 24 N. H. 
 302; Bank v. Keep, 13 Wis. 209; 
 Cockerell v. Kirkpairick, 9 Mo. 697; 
 Woodin V. Foster, 16 Barb. (N. Y.) 
 146. Or that the value of certain 
 property, when ascertained, should 
 be credited on the note. Feather- 
 stone V. Wilson. 4 Ark. 154. Or that 
 the note was to be paid at a different 
 place or on a different day from that 
 named therein. Brown v. Wiley, 20 
 How. (U. S.) 442; Eaton v. Emerson, 
 14 Me. 835. Or to change a word or 
 its ordinary meaning, used in a note, 
 as "if" to "when." Garten v. Chand- 
 ler, 2 Bibb (Ky.) 246. Or that it is 
 payable in any other mode than that 
 appearing on its face. Field v. Stin- 
 son, 1 Cold. (Tenn.) 40. Or that a 
 surety signed the note only upon the 
 condition that it was to be collected 
 promptly at maturity. Thompson v. 
 Hall, 45 Barb. (N. Y.) 214. Or that 
 it was only to be paid on a contin- 
 gency. Bidwell V. Thompson, 25 Tex. 
 245. Or that the signers of a note 
 acted in any other capacity than 
 that designated by their signature 
 thereto. Hyatt \. Simpson, 8 Ind. 156. 
 Neither is it competent to vary or 
 
 alter the relations of an indorser of 
 a note or bill by parol proof. Buckley 
 V. Bently, 48 Barb. (N. Y.) 283; 
 Crocker v. Getchett, 28 Me. 392 ; Mason 
 V. Graff, 35 Penn. St. 448 ; Kern v. 
 Van Pheel, 7 Mirm. 426; Barry v. 
 Morse, 3 N. H. 132 ; Meyer v. Beards- 
 ley, 30 N. J. 286. Or to show what is 
 intended by an indorser who writes 
 " notice of protest waived by me."> 
 Buckley v. Bentley, 42 Barb. (N". Y.) 
 646. Or that the note was given for 
 certain property which the maker 
 had a right to return within a cer- 
 tain time, and on the return of 
 which the note was to be given up. 
 Allen V. Forbush, 4 Gray (Mass.) 504. 
 Or that the note was given for land, 
 and that a part of the land agreed 
 to be conveyed was not embraced in 
 the deed. Bennett v. Ryan, 9 Gray 
 (Mass.) 204. Or that an indorser 
 signed only as guarantor. Wright v. 
 Morse, 9 Id. 337. Or that a check 
 was given upon the express under- 
 standing that it was to be paid in the 
 bills of a certain bank. Park v. 
 Thomas, 21 Miss. 11. Or upon a con- 
 dition that had failed. Rose v. 
 Learned, 14 Mass. 154. Or to show 
 that it was agreed when the indorser 
 indorsed the note that he should not 
 be liable. Sands v. Woods, 1 Iowa 
 263. Or that a note was given as a 
 memorandum merely, which was 
 not to be paid except as he col- 
 lected the amount of another party. 
 McClanahan v. Hinds, 2 Strobh. (S. 
 C.) 122. Or that a note or due bill 
 given on demand was not to be paid 
 until a certain time. Van Allen v. 
 Allen, 1 Hill (N. Y. 0. P.) 524. Or 
 that the payee agreed to make a de- 
 duction from a note in a certain 
 
THE USAGES OF TBADE, THEIE. OFFICE. 
 
 205 
 
 varies tlie terms of a contract, it may be said that the in- 
 stances given, show that the admission of evidence of usage 
 or custom clearly comes under the head of these exceptions 
 to the general rule, and is admissible in any or all instances 
 where parol evidence is admissible to affect the relations of 
 the parties under any species of contract, whether in writing 
 or by parol, or under seal, or not, provided it is not excluded 
 by the express terms of the contract, and that it was known 
 to the parties,^ or is so general and uniform that the parties 
 
 contingency. Goodard v. Hill, 33 
 Me. 582. But it has been held that 
 when the indorsement is in blank it 
 may be explained by parol. Harris 
 V. Pierce, 6 Ind. 162 ; Taylor v. Kim, 
 18 Iowa 485 ; Smith v. Barber, 1 Root 
 (Conn.) 207. As that there was a 
 verbal agreement between the in- 
 dorser and indorsee that there 
 should be no recourse to the in- 
 dorser in case of non-payment. 
 Girard Bank v. Gomley, 2 Miles 
 (Penn.) 405. But this is restricted 
 to actions between the indorser and 
 indorsee, and even in such cases, the 
 policy of the rule is doubtful and in- 
 consistent with the general principle 
 that parol evidence is admissible to 
 vary the terms of a written contract. 
 When a person indorses his name 
 upon the back of a note, he becomes 
 a party to the note, and a surety for 
 its payment. If he would restrict 
 his liability, he should do so by the 
 terms of his indorsement, and not 
 allow it to rest in parol. The very 
 fact that a contract of that character, 
 so important to the indorser, is left 
 to rest in parol, evinces a fraudulent 
 purpose, which the law should not 
 tolerate or uphold. It opens the 
 door to perjury, and enables the in- 
 dorsee to f(*ist, upon an innocent 
 party, a contract apparently absolute 
 upon its face, when in fact it is 
 
 transmitted with conditions that 
 strip it of one of the most essential 
 elements of its value. In the case 
 of a blank indorsement, a party can- 
 not convert the indorser into a guar- 
 antor by writing a guaranty over his 
 signature, except upon positive 
 proof of authority to do so. Cottrell 
 V. Conklin, 4 Duer {N. Y.) 45. It has 
 been held that a person who signs 
 a note with another, joint on its face, 
 may show that he signed it as surety 
 simply, and that the payee knew the 
 fact. Emmons v. Overton, 18 B. Monr. 
 (Ky.) 643; Riley v. Gregg, 16 Wis. 
 666 ; Pollard v. Stanton, 5 Ala. 451 ; 
 Adams v. Flanagan, 36 Vt. 400 ; Bank 
 V. Kent, 4 N. H. 221 ; Bank v. Mum- 
 ford, 6 Ga. 44 ; Watkins v. Kilpatrick, 
 26 N. J. 84 ; Ward v. Stout, 32 111. 399 ; 
 Lacey v. Lofton, 26 Ind. 324; Heck- 
 sher V. Binney, 3 Woodb. & M. (U. S.) 
 333. 
 
 ^ Thom,pson v. Hamilton, 12 Pick. 
 (Mass.) 425; Loring v. Gurney, 5 
 Id. 15 : Stevens v. Reeves, 9 Id. 198. 
 But if the usage is special, it is 
 not binding upon him, unless the 
 party sought to be charged there- 
 with has actual knowledge of it. 
 Berkshire Woolen Co. v. Prastor, 7 
 Cush. (Mass.) 417. In Ch-oucher v. 
 Wilde, 98 Mass. 322, it was attempted 
 to charge the master of a vessel with 
 a usage of a certain wharf on which 
 
206 
 
 THE USAGES OF TRADE, THEIR OFFICE. 
 
 must be presumed to have known of and contracted in refer- 
 
 berth for it had been engaged by 
 the consignees as to the mode of 
 discharging the cargo, but it was 
 held that unless it was shown that 
 the master had knowledge or notice 
 of such usage it was not binding 
 upon him. Q-ouoher v. Wilde, 98 
 Mass. 822. In Stevens v. Reeves, ante, 
 it was proved to be the usage in 
 Andover and some factories in 
 neighboring towns that no em- 
 ploye should leave without giving a 
 fortnight's notice. A weaver who 
 did not know of the usage left with- 
 out giving such notice, and it was 
 held that he was not bound by the 
 usage. And a similar usage, a no- 
 tice of which was printed and posted 
 up in the company's counting-room, 
 - was held not binding unless brought 
 home to the employe's knowledge. 
 Collins V. N. E. Iron Co., 115 Mass. 
 23. In a late Massachusetts case, 
 Sawtelle v. Drew, 122 Mass. 228, in an 
 action for the breach of an agree- 
 ment in writing to hire the plain- 
 tiff's house, where the defence was 
 that the plaintiff failed to cleanse 
 the house as he agreed, evidence 
 that " a universal custom and usage 
 prevailed, in the locality in which 
 the house was situated, by which a 
 lessor was required to cleanse a 
 leased house before the lessee en- 
 tered into possession," was held 
 inadmissible without evidence that 
 the plaintiff knew of the usage. But 
 proof of repeated dealings with a 
 party who has established a certain 
 usage in respect to his business, is 
 competent proof of such person's 
 knowledge of it. Shaw v. Wiley, 18 
 Pick. (Mass.) 558. Evidence of for- 
 mer transactions between the same 
 parties is admissible to show what 
 
 meaning they put upon a certain 
 term. Bourne v. Gatliff, 11 CI. & F. 
 45. The owner of a steamboat, and 
 a corporation engaged in the busi- 
 ness of supplying coal to steamboats, 
 had for some months been accus- 
 tomed to deal with each other for 
 the supply of coal required by the 
 boat, the requisite supply for her 
 wants upon each trip being fur- 
 nished her on each arrival. Under 
 these circumstances the owner exe- 
 cuted a written memorandum, ac- 
 knowledging that he had purchased 
 1,500 tons of coal at a specified price 
 per ton, which was, however, silent 
 as to time and mode of delivery and 
 payment ; and it was held that the 
 previous course of dealing between 
 the parties might be shown to estab- 
 lish their intention in regard to 
 these points. And that upon this 
 evidence the contract must be con- 
 strued as intending a delivery of the 
 coal from time to time as it might 
 be ordered to meet the wants of the 
 boat, and as creating an obligation to 
 pay for each parcel of coal as deliv- 
 ered, lb. The Alida, 1 Abb. Adm. 
 (U. S.) 173. Evidence of the usage 
 of a single bank for two years to 
 hold a note until the fourth day 
 after it became due, and, if that day 
 fell upon Sunday, to demand pay- 
 ment and give notice of Monday, is 
 not sufficient to change as to the 
 notes held by that bank, the general 
 law requiring demand, &c., in such 
 cases to be made on Saturday. 
 Adams v. Otterback, 15 How. (U. S.) 
 539. A custom of a particular port, 
 that seamen's advance wages, due 
 under shipping articles, shall be 
 paid to the shipping agent, to be 
 paid by him to the boarding-house 
 
THE USAGES OF TRADE, THEIK OFFICE. 
 
 207 
 
 ence to it. {Lawry v. Russell, 8 Pick. (Mass.) 360 ; Parrott 
 
 keeper bringing the seamen, for 
 their benefit, is unreasonable, and 
 does not bind the seamen, although 
 known to them at the time of sign- 
 ing the articles ; and, if valid, would 
 not be sustained by evidence that 
 the shipping agent paid the wages 
 to the boarding-house keeper, and 
 charged them in account with the 
 owner of the vessel. Metoalf v. Weld, 
 14 Gray (Mass.) 210. A usage of a 
 port that in order to constitute a 
 delivery of water-borne goods by the 
 carrier, it is necessary for a receipt 
 to be given by the consignee or his 
 agent, and that until then the liabil- 
 ity of the carrier continues, is un- 
 reasonable and illegal. Reed v. 
 Richardson, 98 Mass. 216. It is not 
 competent, in an action by the owner 
 of the cargo of a coasting vessel 
 against a purchaser of the same of 
 the master of the vessel, he having 
 no express authority to sell, to give 
 evidence of a custom of masters of 
 such vessels, laden with lumber, to 
 make sales in the harbor of Brazos 
 and along the southern coast of 
 Texas, without any other authority, 
 than the fact of their being masters 
 or captains of the vessels. This 
 custom, if existing, is in contraven- 
 tion of established law, and, in any 
 event, it cannot be shown when the 
 manifest repels the existence of pos- 
 sible authority in the captain. Still- 
 man V. Hurd, 10 Tex. 109. The 
 usages of a business are important 
 in determining whether or not cer- 
 tain business entrusted to a person 
 in a given case, has been properly 
 done. Thus, in a case wTiere A. 
 shipped on board of B.'s vessel for a 
 fishing voyage, and signed a ship- 
 ping paper in which it was agreed 
 
 that A. should have a certain pro- 
 portion of the fish that he should 
 take on the voyage, or the proceeds 
 thereof, and that B. should render 
 to A. an account of the delivery or 
 sales of all such fish. Before the 
 vessel sailed on the voyage, A. drew 
 an order on B., requesting him to 
 pay to C, or order, a certain sum at 
 the end of the voyage, if he. A., 
 should make enough to pay said 
 sum, which order B. accepted. In 
 a suit against B. on this acceptance, 
 it was held that although it was 
 proved that B. might have sold the 
 fish soon after the arrival of the 
 vessel, for a sum sufficient to pay 
 the order, and that by delaying the 
 sale he did not obtain a sufficient 
 sum for that purpose, yet, if he 
 acted in good faith, and sold the fish 
 within a reasonable time, he was 
 not liable to the holder of the order ; 
 and that for the purpose of proving 
 that he acted in good faith, and 
 made the sale in a reasonable time, 
 evidence was admissible of the cus- 
 tom of those employed in like fish- 
 ing voyages to delay the sale of fish 
 as long as B. had delayed in this 
 instance. Bradford v. Drew, 5 Met. 
 (Mass.) 188. In an action for shoes 
 sold and delivered, brought by a 
 manufacturer against a distant pur- 
 chaser, held that evidence was ad- 
 missible to show that when shoes 
 are ordered, it is the usage and 
 course of the shoe business, when no 
 special mode of conveyance is men- 
 tioned by the purchaser, for the 
 manufacturer to take the shoes to 
 Boston, at his own risk and cost, 
 and there deliver them to some 
 regular line of packets running to 
 the purchaser's place of business. 
 
208 
 
 THE USAGES OF TRADE, THEIK OFFICE. 
 
 V. Thaeher, 9 Id. 430.) And if the party oflfering sucli evi- 
 
 and take duplicate bills of lading, 
 and forward one of them to the pur- 
 chaser, by mail, and that from that 
 time, the delivery is complete, and 
 the purchaser takes the risk of loss. 
 Putnam v. Tillotson, 13 Met. (Mass.) 
 517. So in a suit to recover the 
 value of goods obtained by the de- 
 fendant by a purchase for cash from 
 an agent of the plaintiffs, evidence 
 of the agent's agreement and gen- 
 eral course of dealing with a former 
 firm, consisting of two of the three 
 plaintiffs, was held admissible for 
 the purpose of proving the agent's 
 authority to sell and deliver the 
 goods for cash, if there was evidence 
 that such former agreement and 
 dealings were referred to in his 
 agreement with the plaintiffs, and 
 as a part thereof. Buckman v. Chap- 
 lin, 1 Allen (Mass.) 70. Hardware 
 merchants in England, to whom an 
 order had been sent from New York 
 for the purchase of goods, brought 
 an action for the amount of their 
 purchase. The defendant alleged 
 that notice of the consignment of 
 the goods was not sent him in time 
 to insure, and that the goods,were 
 injured on the voyage. It was held 
 that evidence that it was the cus- 
 tom of hardware merchants to trans- 
 mit to their consignee immediate 
 notice of having made a consign- 
 ment, was inadmissible, the plain- 
 tiffs in this case having acted only 
 as agents, and not as vendors. Field 
 V. Banker, 9 Bosw. (N. Y.) 467. 
 Where there was a special contract 
 between the parties as to the price 
 per thousand feet that should be 
 paid to the plaintiff for drawing cer- 
 tain lumber over a particular route, 
 but the parties disagreed as to what 
 
 that price was, as fixed by the con- 
 tract, evidence to show what was 
 the usual and common price paid at 
 that time and place for similar ser- 
 vices, and of the amount paid to 
 one or more individuals for drawing 
 the same kind of lumber over the 
 same route, at the same time, was 
 held competent. Swain v. Cheney, 
 41 N. H. 232. But where the price 
 fixed by the contract is definitely 
 ascertainable, such evidence is not 
 admissible. Hartie v. Collins, 46 
 Penn. St. 268 ; Edwards v. Goldsmith, 
 16 Id. 43. Such evidence is also ad- 
 missible for the purpose of corrob- 
 orating witnesses in certain cases. 
 Thus where the master of a coast- 
 ing vessel, who had chartered it on 
 shares, testified that the owners 
 authorized him, if he should leave 
 the vessel, to give it up to the mate, 
 and that he did so under an oral 
 contract with the mate to run the 
 vessel on the same terms as he had 
 done ; and the mate testified that he 
 ran the vessel accordingly, as mas- 
 ter, and that the owners ratified the 
 agreement. It was held that evi- 
 dence was admissible in order to 
 show the terms of the contract be- 
 tween the new master and the own- 
 ers, and to corroborate the witnesses, 
 of a usage, at the port where the 
 vessel belonged, to let such vessels 
 to the master upon shares. Thomp- 
 son V. Hamilton, 12 Pick. (Mass.) 425. 
 So, too, such evidence is admissible 
 to show whether or not a person has 
 been guilty of negligence in certain 
 cases. Thus, in a suit against a 
 ginner of cotton, for cotton lost by 
 fire, the plaintiff may prove the 
 usual custom of ginners as to carry- 
 ing fire about their gin-houses, also 
 
THE USAGES OF TRADE, THEIR OFFICE. 
 
 209 
 
 dence contends that he can prove, from all the evidence in the 
 case, that the other party must have known of it, no exception 
 lies to its admission.^ Actual knowledge of a usage which is 
 general, need not be shown ; indeed, the party sought to be 
 charged thereby may have in fact been ignorant thereof, but if 
 the proof is such as to show a general and uniform usage of the 
 trade, generally known to those engaged in it, it is sufficient 
 to charge him with notice of its existence and to render it 
 
 the custom of the witness, if it be 
 conformable to the general custom. 
 Maxwell v. Eason, 1 Stew. (Ala.) 514. 
 The fact being established that a 
 barge was improperly loaded, the 
 owner of the barge cannot excuse 
 his liability by showing a usage to 
 load barges in that manner, but 
 proof of such a usage is evidence of 
 the fact that such method of loading 
 is proper, and its force cannot be 
 overcome except by clear proof that 
 the loading was really improper and 
 unsafe, and it is for the jury to say 
 whether the method of loading was 
 really improper. Stepliens v. Tucker- 
 man, 33 N. J. L. 543. The doctrine 
 of Barbel- v. Brace, 3 Conn, 9, may 
 be thought to be opposed to the 
 doctrine of the New Jersey case, and 
 it may be, but it will be seen that, in 
 this case, the shipping receipt stated 
 that the goods were to be transported 
 to the place of destination " at cus- 
 tomary freight, dangers of the sea 
 excepted," and the court held that, 
 in the face of the written contract, 
 parol evidence of an agreement as 
 to the mode of stowage was not 
 admissible, but that, in justification 
 of the mode of stowage, it was com- 
 petent to show a well-established 
 commercial usage in that respect in 
 order to show the real intention of 
 the parties, and also for the purpose 
 of repelling any imputation of neg- 
 
 ligence. The charge of the court, 
 which was sustained on appeal, was 
 that, "if a custom authorizing the 
 stowage was satisfactorily proved, it 
 repelled the imputation of negli- 
 gence and mismanagement.'' But 
 this instruction was predicated upon 
 the ground that, in the absence of a 
 special contract as to the mode of 
 stowage, it must be presumed that 
 the parties contracted in reference 
 to the usage, and consequently that 
 negligence could not be imputed, 
 and this doctrine admits of no ex- 
 ception, for, that a well-established 
 usage as to a certain business, is 
 evidence of the intention of the par- 
 ties contracting, without special pro- 
 vision as to the matters covered by 
 the usage, is well established. Coit 
 V. Commercial Ins. Co., 7 Johns. (N. 
 Y.) 385; Parr v. Anderson, 6 East 
 202; LethuUer's case, 2 Salk. 443; 
 StuUs V. Dickey, 5 Binn. (Penn.) 287; 
 Tnglebright v. Hammond, 19 Ohio 
 337 ; Sampson v. Oazzam, 6 Port. 
 (Ala.) 123; Lebanon v. Heath, 47 N. 
 H. 353. In City Bank v. Cutter, 3 
 Pick. (Mass.) 414, it was held that 
 where a bank had established a 
 usage to regard a certain day as 
 a holiday, such usage was binding 
 upon all persons dealing with the 
 bank who knew of the usage. See 
 also Shove v. Wiley, 18 Id. 558. 
 2 Dodge v. Favoj; 15 Gray (Mass. ) 82. 
 
 13 
 
210 
 
 THE USAGES OP TKADE, THEIR OFFICE. 
 
 applicable to a given transaction within its scope, as mucli as 
 though it had in terms been embodied in the contract,^ but 
 where the usage is local, something more than its uniformity 
 and general application in a certain trade or business must 
 be shown to charge a person who in fact has no knowledge 
 of it.* The rule may be said to be that, if a usage is gen- 
 eral, and applicable to a certain trade or business, and is not 
 unreasonable or in conflict with the law, it is sufficient for a 
 party invoking its aid to show that it is fixed and established 
 in the trade or business to which it relates, and from such 
 proof the law presumes that the parties contracted in refer- 
 ence to it.^ This rule was well illustrated in a Massachu- 
 
 ^ Mangum v. Farriiigton, 1 Daly 
 (N. Y. C. P.) 236; Cooper v. Kane, 19 
 Wend. (N. Y.) 386 ; Bissell v. Camp- 
 hell, 54 N. Y. 353 ; Stanton v. Small, 
 3 Sandf. (N. Y.) 280; Hintony. Locke, 
 5 Hill (N. Y.) 437 ; Mackenzie v. 
 Schmidt, 22 Am. Law Eeg. 448 ; 
 Hartshome v. Ins. Co., 36 N. Y. 172 ; 
 McOready v. Wright, 5 Duer (N. Y.) 
 571; Chandler v. Belden, 18 Johns. 
 (N. Y.) 357 ; Cope v. Dodd, 13 Penn. 
 St. 83 ; Adams v. Pittsburgh Ins. Co., 
 76 Id. 411 ; McMasters v. Penn. R. R. 
 Co., 69 Id. 874; McCarty v. Ene R. 
 R. Co., 80 Id. 247. Evidence of a 
 usual custom of trade is sufficient to 
 affect a party with notice of it. 
 WhitesellY. Crane, 8 W. & S. (Penn.) 
 369 ; Watt v. Hoch, 25 Penn. St. 411 ; 
 Adams v. Palmer, 30 Id. 346 ; Koons 
 V. Miller, 3 W. & S. 271. 
 
 * Halford v. Adams, 2 Duer (N. Y.) 
 471 ; Sipperly v. Stewart, 50 Barb. (N. 
 Y.) 62; Duguid v. Edwards, 50 Id. 
 288. 
 
 '' Carter v. Philadelphia Coal Co., 77 
 Penn. St. 286; Lewis v. Marshall, 7 
 M. & G. 744 ; McMasters v. Penn. R. 
 R. Co., 69 Penn. St. 374; Collings v. 
 Hope, 3 Wash. (U. S. C. 0.) 149 ; 
 Koons V. Miller, 3 W. & S. (Penn.) 
 
 371 ; Helme v. Ins. Co., 61 Penn. St. 
 107; Eyre v. Ins. Co., 5 W. & S. 
 (Penn.) 116; Hinton v. Locke, 5 Hill 
 (N.Y.)437. A usage must be definite, 
 uniform and well established, and 
 established by clear and satisfactory 
 evidence, so that it may be pre- 
 sumed that the parties had reference 
 to it in making their contract. Bow- 
 ling V. Harrison, 6 How. (U. S.) 259 ; 
 Oelricks v. Ford, 23 How. (U. S.) 49; 
 Trott V. Wood, 1 Gall. (U. S.) 443 ; Pier- 
 pont V. FowU, 2 W. & M. (U. S.) 24; 
 McGregor v. Insurance Co. of Penn., 1 
 Wash. (U. S. C. C.) 39; Martin v. 
 Delaware Ins. Co., 2 Wash. (U. S. C. 
 C.) 254; Collings v. Hope, 3 Wash. 
 (U. S. C. C.) 149 ; Stru7ig v. Carring- 
 ton, 11 Am. L. E. 287. When a 
 custom is so proved as to leave no 
 doubt of its existence, it becomes a 
 part of the law, and the court will 
 so declare it without requiring it to 
 be again proved. Consequa v. Wil- 
 lings, Pet. (U. S. G. C.) 225. A usage 
 or custom will be admitted to ascer- 
 tain the nature and extent of con- 
 tracts not arising from express 
 stipulations, but from implications, 
 presumptions and acts of an equivo- 
 cal character. The Reeside, 2 Sumn. 
 
THE USAGES OF TEADE, THEIK OFFICE. 
 
 211 
 
 setts case,^ in which a contract was made in Boston with a 
 
 (U. S.) 567. And see Sunday v. Gor- 
 don, 1 Bl. & H. (U. S.) 569. Or to 
 ascertain the true meaning of par- 
 ticular words in a given instrument, 
 "where those words have various 
 senses ; but it will not be admitted 
 to control, vary or contradict a 
 written and express contract. Mc- 
 Gregor V. Insurance Co. of Penn., 1 
 Wash. (U. S. C. C.) 39; Union Bank 
 V. Forrest, 3 Or. (U. S. C. C.) 218. 
 Where an established and well- 
 known usage exists in a particular 
 trade, in regard to the storage of a 
 general ship, a shipper is chargeable 
 with notice of it, and is deemed to 
 have assented thereto, unless he give 
 special instructions on the subject. 
 Baxter v. Leland, 1 Blatchf. (U. S. C. 
 C.) 526. The local usage of a par- 
 ticular foreign port will govern as to 
 the time of delivery under a bill of 
 lading. Higgins v. United States Mail 
 Steamship Co., 3 Blatchf. (U. S. C. C.) 
 282 ; S. P. Broadwell v. Butler, 6 
 McLean (U. S.) 296. A charter- 
 party for the transportation of a 
 cargo, prescribing no mode of stor- 
 age, tacitly refers to the established 
 and known usage of the trade. 
 Lamb v. Parkman, 1 Spr. (U. S. C. C.) 
 343. In Howard v. Great Western 
 Ins. Co., i09 Mass. 384', on the trial 
 of an action for a loss under a policy 
 written here, between parties resid- 
 ing here, upon a vessel for a voyage 
 from Hamburgh to Card-ifF and 
 thence to Hong Kong, contained a 
 warranty that to load more than her 
 registered tonnage with coal, which 
 the underwriters defended on the 
 ground of a breach of the warranty, 
 in that she was loaded at Cardiff 
 beyond her registered tonnage with 
 a substance called patent fuel, the 
 judge refused the plaintiff's request 
 
 for a ruling that whether patent fuel 
 was coal within the meaning of the 
 policy was to be determined by the 
 usage at Cardiff, and ruled that if 
 the plaintiff relied on a commercial 
 usage to the effect that it was not so, 
 the usage must be shown to have 
 been known to the parties at the 
 time of their contract, or so gener- 
 ally known that it might fairly be 
 presumed to have contracted with 
 reference to it, and the ruling was 
 sustained. 
 
 ® Star Glass Co. v. Morey, 108 Mass. 
 576. In Mixer v. Coburn, 11 Met. 
 (Mass.) 559, which was an action for 
 goods sold and delivered, a usage of 
 trade that where glass is sold in 
 boxes the risk of broken glass is on 
 the buyer, is competent evidence. 
 In Loveland v. Burke, 120 Mass. 139, 
 it was held competent for a carrier, 
 in defence to an action for injury to 
 goods in their delivery by the break- 
 ing of the requisite apparatus, to 
 show a local usage that such appa- 
 ratus is to be furnished by the con- 
 signee of the goods. In Putnam v. 
 Tillotson, 13 Met. (Mass.) 517, in an 
 action for shoes sold to a distant 
 purchaser, evidence was held admis- 
 sible to show that where shoes are 
 ordered it is the usage and course of 
 the shoe business, when no special 
 mode of conveyance is named by 
 the purchaser, for the manufacturer 
 to take the shoes to Boston, at his' 
 own risk and cost, and there deliver 
 them to some regular line of packets 
 running to the purchaser's place of 
 business, and take duplicate bills of 
 lading, and forward one of them to 
 the purchaser by mail, and that 
 from that time the delivery is com- 
 plete and the purchaser takes the 
 risk of loss. 
 
212 THE USAGES OF TRADE, THEIP. OFFICE. 
 
 manufacturer of window glass in Philadelphia, for the pur- 
 chase of from him of glass to be by him manufactured. The 
 purchaser referred for a designation of the sizes of the glass, 
 and as the basis of prices, to printed cards, issued by the 
 manufacturer without special reference to the Boston mar- 
 ket. The glass, as ordered, did not prove of the sizes de- 
 sired by the purchaser, nor comply with the standard of 
 measurement in Boston, although it was of the sizes desig- 
 nated in the cards, according to the standard of measurement 
 in Philadelphia. The court held that the usage as to the 
 standard of measurement in Philadelphia must prevail in 
 the absence of any provision in the contract to the contrary. 
 A similar rule was adopted in an earlier case,' in which it 
 was held, in an action between a manufacturer of window 
 frames and a dealer in them, on an issue whether the former 
 should pay freight on frames sold and delivered by him to 
 the latter, that evidence of a usage between manufacturers 
 and dealers in the place where the goods were made and sold, 
 that the manufacturers should pay the freight, was admissi- 
 ble and controlling. A usage that has grown up under the 
 law may be defeated by a change in the law that affects the 
 subject matter of the usage. Thus, a Washington banker 
 received deposits from a customer, partly in " coin " and 
 partly in " treasury notes," at a time when both were looked 
 upon as currency ; and the depositor, after the passage of the 
 legal tender act, drew for " coin " for a portion of his' deposit 
 exceeding the coin deposited after the passage of that act, and 
 the check was paid in coin. He afterwards drew for "coin," 
 the balance of his coin deposited before the legal tender act, 
 and coin was refused, and notes, made legal tender by act of 
 congress, tendered him instead. Suit was brought to recover 
 the market value of the coin drawn for ; and the plaintiff 
 offered evidence to show " that the usage and mode of deal- 
 ing uniformly used and practiced by all the banks and bank- 
 
 ' Howe V. Hardy, 106 Mass. 329. 
 
THE USAGES OF TEADE, THEIR OFFICE. 
 
 213 
 
 ers of the District of Columbia, was in all cases when the 
 deposit was made in coin, to pay checks in coin, if requested, 
 otherwise in currency." It was held that such evidence was 
 rightly excluded.^ In order to establish the fact that a per- 
 son has taken possession of vacant land, it is competent to 
 prove that the claimant took such measures as are usually 
 taken for that purpose, as that he drove stakes, marked with 
 his initials, around the exterior lines of the lot, and that this 
 is the usual mode of taking possession of such lots.^ So, 
 
 ' Thompson v. Riggs, 5 Wall. (U. 
 S.) 663. In some instances, where 
 rights have grown up under a statute 
 or charter, although the statute or 
 charter is subsequently repealed, the 
 rights acquired will be upheld as 
 usages having all the force of local 
 common law. Thus, in Massacliu- 
 setts, by an ordinance of 1641 the 
 common law was altered as to that 
 colony, so that all proprietors adjoin- 
 ing the sea were vested with the 
 title to the soil to low water mark, 
 but not beyond that distance where 
 the tide ebbed beyond that point. 
 Gray v. Bartlett, 20 Pick. (Mass.) 
 186; Wood on Nuisances, 101 ; Stover 
 V. Freeman, 6 Mass. 435. This ordi- 
 nance was afterwards annulled, but 
 the courts^ have ever since upheld 
 the right as a usage having all the force 
 of a local common law. Wood on 
 Nuisances, 101 ; Sale v. Pratt, 19 Pick. 
 (Mass.) 191 ; Austin v. Carter, 1 Mass. 
 231 ; Barker v. Bates, 19 Pick. (Mass.) 
 255 ; Com. v. Charleston, 1 Id. 186. 
 And this oi'dinance has been as- 
 sumed and acted upon in Maine, 
 upon the same ground. Lapish v. 
 Bangor Bank, 8 Me. 85 ; Emerson v. 
 Taylor, 9 Id. 43 ; Mooi-e v. Oriffln, 20 
 Me. 350. So, too, in these States 
 under this ordinance and the usages 
 that have grown up under it, is held 
 that it is the point at which the tide 
 
 ebbs the lowest, and not the average 
 or common tide, which is to be taken 
 as low water marlc. Stover v. Free- 
 man, 1 Mass. 231 ; Sparhawk v. Bul- 
 lard, 1 Met. (Mass.) 95. In Connec- 
 ticut, Ehode Island, Pennsylvania 
 and New Jersey similar local cus- 
 toms exist, under which the courts 
 have upheld the rights of riparian 
 owners to wharf out to low water 
 mark. Chapman v. Kimball, 9 Conn. 
 168 ; East Haven v. Hemingway, 7 Id. 
 186 ; Martin v. Waddell, 18 N. J. L. 
 186 ; Ball v. Slack, 2 Whart. (Penn.) 
 539 ; see Wood on Nuisances, 101 ; 
 also, chapter on Navigable Streams, 
 605-653, particularly p. 647; also, 
 Angell on Tide Waters, 225, where 
 the author says, "from that time 
 (1641) to the present an usage has 
 prevailed which now has the force 
 of a local common law, that the 
 owner of land bounded on the sea 
 or salt water shall hold to low water 
 mark, as provided by the terms of 
 the ordinance,'' meaning the ordi- 
 nance previously referred to. 
 
 » Cook v. Rider, 16 Pick. (Mass.) 
 186. In an action involving a ques- 
 tion as to whether piers in New York 
 are properly constructed, evidence 
 that piers in Boston are similarly 
 constructed is not admissible. Hill 
 Mfg. Co. V. Providence, &o.. Steamship 
 Co., 125 Mass. 292. Neither is evi- 
 
214 
 
 THE USAGES OF TEADE, THEIK OFFICE. 
 
 where a railroad company is sued for freight lost from its 
 "warehouse, evidence that the company used such care as is 
 usually exercised by railroad companies in the care of such 
 freight, is admissible, not absolutely to excuse the company 
 from liability, but as tending to show that it exercised reason- 
 able care, which is all that the law requires.^ Where a statute 
 prescribes the rights of parties in certain cases, a usage that 
 extends such rights is invalid. Thus, evidence that prison- 
 ers entitled to the privilege of the jail yard, in the county of 
 Suffolk, had been accustomed, from the time when such lim- 
 its were established, to go to certain places between low-water 
 mark and the thread of the river, as being within the bounds 
 of the fifth ward, was held incompetent to control the con- 
 struction of the statute and of the return of the selectmen, 
 all the proceedings being recent.- Where public officers per- 
 form similar duties, the fact that most of them perform them 
 
 dence of the practice of other towns 
 on the issue as to whether a certain 
 place or construction constitutes a 
 defect. George v. Haverhill, 110 Mass. 
 506; Raymond \. Lowell, 6 Cush. 
 (Mass.) 524 ; Kidder v. Dunstable, 11 
 Id. 342. But in an action against a 
 town for a defect in a highway, evi- 
 dence as to the ordinary condition 
 of similar ways in other towns is 
 admissible upon the question as to 
 whether the plaintiff was in the ex- 
 ercise of due care when the injury 
 occurred. Raymond v. Lowell, ante ; 
 Packard v. New Bedford, 110 Mass. 
 134. But in order to be admissible 
 it must be shown that the plaintiff 
 knew of such practice in other towns. 
 Sohoonmaker v. Wilbrahani, 110 Mass. 
 134 ; Hinckley v. Barnstable, 109 Id. 
 126. So in an action for an injury 
 resulting from an injury because of 
 the breaking of a block and chain, 
 it was held that the plaintiff might 
 show that it is a usual thing for a 
 block and chain on any derrick to 
 
 break when in use. Reilley v. Rand, 
 123 Mass. 215. But where the act is 
 clearly negligent, the defendant can- 
 not be allowed to excuse himself by 
 showing that others engaged in the 
 same business are also negligent in 
 the same respects. Miller v. Pendle- 
 ton, 8 Gray (Mass.) 547 ; Lewis v. 
 Smith, 107 Mass. 334; Bailey v. New 
 Haven, &c., Co., 107 Id. 496. 
 
 ^ Cass V. Boston & Lowell R. R. Co., 
 14 Allen (Mass.) 448; Same v. Bos- 
 ton <1- Albany R. R. Co., 112 Id. 455. 
 But see Lichtenstein v. Boston & Prov. 
 R. R. Co., 11 Cush. (Mass.) 70, where 
 in an action .against a warehouse- 
 man for the non-delivery of prop- 
 erty whicli had bfeen fraudulently 
 taken from their custody, and no 
 negligence on their part was claimed 
 to exist, it was held that the plain- 
 tiff could not show that it was usual 
 among other warehousemen to take 
 a receipt for property delivered. 
 
 2 Ti-uU V. Wheeler, 19 Pick. (Mass.) 
 240. 
 
THE USAGES OP TEADE, THEIR OFFICE. 215 
 
 in a certain manner does not have any tendency to show that 
 those performing them in a different manner have not prop- 
 erly performed them, or that those performing them accord- 
 ing to such usage have properly performed them.^ As stated 
 elsewhere, a usage that deprives a person of his property 
 or services without compensation, is invalid. Thus, in an 
 action against an officer for the storage of property attached 
 by him and left on the premises of the plaintiff, it was held 
 that the evidence of other officers was not admissible to show 
 that in similar cases, no charge for storage had ever been 
 made to them.* Where there are several tenants of a build- 
 ing, who have contracted to pay the taxes, it is competent for 
 the landlord to show a usage in such cases, to apportion the 
 taxes among the several tenants according to the amount of 
 rent paid by each.^ The fact that a certain act is very 
 unusual has no tendency to show that it was not done in a 
 particular case.* A usage can be invoked to interpret a con- 
 tract directly contrary to the terms employed therein. Thus, 
 a warranty in an insurance policy, that a vessel is neutral, 
 cannot be shown by a usage to that effect, to mean that she 
 was not so, but only pretended to be,'' nor upon the ordinary 
 sale and delivery of property, can it be shown by usage, that 
 no title thereto passes without payment of the consideration 
 within a certain number of days, as such a usage is unreason- 
 able,^ as also is a usage to treat a fixture as personal prop- 
 erty.^ So, too, a usage that the master of a vessel has no 
 authority in a foreign port to bind his owners for necessaries 
 
 ' Gutter V. Howe, 122 Mass. 541 ; is legal and made by competent 
 
 Shattuck\. Woods, 'i.'P\ck.[M.&.sa.)lll; parties, proof that it is not the cus- 
 
 Williams v. Powell, 101 Mass. 467. torn to make such contracts is clearly 
 
 * Fitchhurgh R. R. Co. v. Freeman, incompetent. Ooodfellow v. Meegan, 
 
 12 Gray (Mass.) 401. 32 Mo. 280 ; Lane v. Bailey, 47 Barb. 
 
 o Codman v. Hall, 9 Allen (Mass.) (N. Y.) 395. 
 
 385 ; Amory v. Melvin, 112 Mass. 83. ' Lewis v. Thacher, 15 Mass. 431. 
 
 ^ Rennell v. Kimball, 5 Allen * Haskins v. Warren, 115 Mass. 514. 
 
 (Mass.) 356. Where evidence is " Richardson v. Copeland, 6 Gray 
 
 offered of a special contract which (Mass.) 486. 
 
216 THE USAGES OF TKADE, THEIK OFFICE. 
 
 furnished, contradicts a well settled rule of maritime law of 
 universal application, and is, therefore, illegal and void.^ 
 Shippers of goods by rail are bound to take notice of a usage 
 to store them, and cannot excuse themselves from liability for 
 the expenses thereof by setting up ignorance of the usage.^ 
 The usages of trade and their office in determining the rights 
 and liabilities of parties, in contracts to which they are ap- 
 plicable, is well illustrated in a New York case.^ In that 
 case, the contract between the parties was in writing. By it 
 the plaintiffs were to furnish the material for the plastering 
 work of the defendant's house and do the work of laying it 
 on. The defendant was to pay them for doing the work and 
 the material a certain price per square yard. The total of the 
 compensation was to be got at by measurement. But the 
 parties differed as to the measurement. The plasterers claim- 
 ing the right to charge for the full surface of the walls, with- 
 out deduction for cornices, base boards, or openings for doors 
 or windows, in accordance with a usage of the trade, and the 
 court held that the usage was reasonable. Folger, J., said, 
 " It is not to be said of this contract that it was so plain in 
 its terms that there could be but one conclusion as to the 
 mode of measurement by which the number of square yards 
 should be arrived at. It is in this case as it was in Hinton 
 
 1 Bliss V. Bapes, 9 Allen (Mass.) for corn so left, after the owner had 
 
 339. But a usage by the owners of ordered it to be freighted, and not 
 
 vessels at particular ports to pay before, and that this custom was 
 
 bills drawn by masters for supplies known to the plaintiflf, and that he 
 
 furnished to their vessels in foreign had been in the habit for many 
 
 ports, cannot bind them as accept- years of leaving grain at the same 
 
 ors of such bills. Bowen v. Stoddard, place, to be freighted on the same 
 
 10 Met. (Mass.) 376. terms. Ouiwater v. Nelson, 20 Barb. 
 
 " McCarty v. Neio York and Erie R. (N. Y.) 29. A local custom at one 
 
 R. Co., 30 Penn. St. 347; MoMasters port, regulating the mode of deliver- 
 
 V. Pennsylvania 'R. R. Co., 69 Id. 374. ing goods there, is not binding on 
 
 In an action on a receipt of a quan- shippers at another port, unless 
 
 tity of corn in store " on freight," it known to them. The Albatross v. 
 
 is competent for the defendant to Wayne, 16 Ohio 513. 
 
 prove a custom of the place, which ' Walls v. Bailey, 49 N. Y. 467. 
 had continued forty years, to pay 
 
THE USAGES OF TRADE, THEIR OFFICE. 217 
 
 V. Loche} There, the work was done at so much per day. 
 The parties there dijffered as to how many hours made a day's 
 work — that is, what should be the measurement of the day. 
 And there, evidence of the usage was admitted, not to con- 
 trol any rule of law, nor to contradict the agreement of the 
 parties, but to explain an ambiguity in the contract. And 
 the proof showing a usage among carpenters that the day 
 was to be measured by the lapse of ten hours, it was held a 
 valid usage, and the contract was interpreted in accordance 
 with it. In Ford v. TirrilV' the contract was to build the 
 wall of an octangular cellar at the rate of eleven cents a foot, 
 and the only question was as to the measurement. The 
 defendant contended that the inner surface of the wall should 
 be the rule. The plaintiff claimed that an additional allow- 
 ance should be made for the necessary work at the angles, to 
 support the building. It was held that the agreement as to 
 the compensation was equivocal and obscure, and that it was 
 competent to prove a local usage of measuring cellar walls in 
 order to interpret the meaning of the language, and to ascer- 
 tain the extent of the contract. So in Lowe v. Lehman,^ in 
 a contract to furnish and lay up brick at so much a thousand, 
 the controversy was as to the proper mode of counting. Evi- 
 dence of a local usage to estimate by measurement of the 
 walls and a uniform rule, based on the average size of brick, 
 making slight addition for extra work and wastage, deducting 
 for openings in the wall, but not for openings in chimneys, nor 
 for caps, sills nor lintels, was admitted as not unreasonable.'' 
 
 ^Hinton v. Locke, 5 Hill (N. Y.) v. O'Neil, 1 Penn. St. 342, it was held 
 
 437. But see Jordan v. Meredith, 3 that a usage to compute the number 
 
 Yeates (Penn.) 318, where such a of bricks laid in a pavement by 
 
 usage was held unreasonable. allowing so many to the square yard, 
 
 ^ Ford v.Tirrill, 9 Gray (Mass.) 401. was reasonable, and might be proved 
 
 ^ Lowe V. Lehman, 15 Ohio ^i. n%. by the testimony of the parties. But 
 
 ' In Jordan v. Meredith, 3 Yeates quere — Cannot it be shown that the 
 
 (Penn.) 318, a usage of plasterers to materials so estimated could not 
 
 charge for the full surface of walls, possibly have been used in the work? 
 
 deducting one-half the size of tlite Hill v. MoDowell, 14 Penn. St. 175; 
 
 windows therein, was held unrea- Symonds v. Lloyd, 6 C. B. N. S. 691. 
 
 sonable and void. But in Pittsburgh 
 
218 THE USAGES OP TKADE, THEIR OFFICE. 
 
 Where a corporation lias for a long period exercised certain 
 powers that would not be lawful without the existence of a 
 by-law conferring them, but there is no record thereof, or 
 evidence of its existence except such as arises from such 
 usage, the court will, from such usage, infer that such a 
 by-law exists delegating such 'powers. Thus, the Mercers 
 Company was one of the ancient guilds of the city of Lon- 
 don, and by a charter of the 17 Ric. II. the commonalty of 
 the company were empowered to elect annually four wardens 
 out of the commonalty. From 1391 to 1463 the practice 
 was for the outgoing wardens to appoint their successors. 
 From 1463 to the present time, a select body had existed 
 under the name of the court of assistants, who held their 
 oflBces for life and supplied vacancies in their own body by 
 self-election out of the whole commonalty. The court of 
 assistants had, since 1463, always elected the wardens from 
 the commonalty of the company, and, of late years, exclu- 
 sively from among the members of their own court. No 
 instance was to be found of wardens having ever been elected 
 by the commonalty at large. It was held that this usage was 
 sufficient to warrant the inference of a by-law delegating to the 
 court of assistants the power of electing wardens; and that such 
 a by-law was valid, notwithstanding that it limited the right of 
 election to a select and self-elected portion of the whole body.^ 
 As all usages are presumed to be predicated upon honest and 
 fair dealing, it follows as a matter of course, that a usage that 
 is unjust, inequitable or unfair in its operations, is unrea- 
 sonable and consequently void.'' Therefore, in the absence 
 of an agreement to that effect, where property of a specific 
 kind is deposited with another for a special purpose, a usage 
 that permits the bailee to sell the property and replace it by 
 
 ^ Regina v. Powell, 25 Eng. L. & 374; Horner v. Watso7i, 79 Id. 242; 
 
 Eq. 53. Holmes v. Johnson, 42 Id. 159 ; Pitts- 
 
 ® Coleman v. Chadwick, 80 Penn. burgh Ins. Co. v. Dravo, 2 W. N. 0. 
 
 St. 81; Evans v. Wain, 71 Jd.-69; (Penn.) 194. 
 MoMasters v. Penn. B. U. Co., 69 Id. 
 
THE USAGES OF TRADE, THEIK OFFICE, 219 
 
 other property similar in kind and quality is lield to be void. 
 So in New York^ it has been held that a custom to sell stocks, 
 &c., deposited as collateral security for a debt, upon failure 
 of the debtor to pay the principal debt, is unreasonable and 
 void. But in Pennsylvania a custom of brokers to sell stocks 
 deposited as collateral for a call loan, is valid ;^ and if such 
 custom is uniform and well established, there can hardly be 
 a question but that the doctrine of the latter case is correct, 
 as every person who employs a broker is presumed to know 
 of all their general customs and usages, and to contract in 
 reference to them.^ In fact, every person dealing in a par- 
 ticular trade is presumed to be familiar with its usual cus- 
 toms.* A custom that real estate brokers are paid a per cent- 
 age for their services is valid and binding.®- 
 
 Usage Explaining' Contract. 
 
 Sec. 95. In Robertson v. Jackson,{a) where it was stipu- 
 lated in the charter party that the ship should be unloaded, 
 weather permitting, at a certain rate per diem, to reckon 
 from the time of the vessel being ready to unload and " in 
 time to deliver," it was held that the charterers had a right 
 to prove that the contract was entered into with reference to 
 a known and recognized use of the words, " in time to 
 deliver," among persons conversant in the trade. The prin- 
 ciple was given effect to in another case, (5) in which, by 
 charter party, the defendant agreed to load on board a vessel 
 at Trinidad " a full and complete cargo of sugar, molasses 
 
 ^ other produce." It appeared that it was the custom at 
 
 Trinidad to load sugar in hogsheads and molasses in pun- 
 
 1 Wheeler v. Newhold, 16 N. Y. 392. * WUtesell v. Orane, 8 W. & S. 
 
 2 Colkert v. Ellis, 1 W. N. C. 246. (Penn.) 869. 
 
 ' Whitehouse v. Moore, 13 Abb. Pr. ^ Inslee v. Jones, Bright (Penn.) 
 
 (N. Y.) 142. 76. 
 
 (a) Robertson v. Jackson, 2 C. B. Jur. 42; 23 L. J. C. P. 17. 
 412 ; 15 L. J. C. P. 28 ; see also (6) Outhbert v. Cumming, 10 Exch. 
 
 Schultz V. Uedemann, 14 C. B. 38 ; 18 809 ; affirmed 11 Exch. 405. 
 
220 THE USAGES OF TRADE, THEIR OFFICE. 
 
 cheons, in which mode they were carried more conveniently 
 and with less loss to the merchant, and that a full and com- 
 plete cargo of sugar and molasses meant a cargo so packed ; 
 it was held, both in the Court of Exchequer and Exchequer 
 Chamber, that the custom was admissible in evidence, for it 
 was applicable to such a charter party, and did not control, 
 but only explained the contract, which ought to be con- 
 strued with reference to the usage at the port of lading ; and 
 it was further decided that the custom was reasonable and 
 good in law. 
 
 Undefined Words in Contract— Usage Eking Out Meaning — No 
 Ambiguity. 
 
 Sec. 96. In another case which fell within the principle 
 of that last referred to, the plaintiffs sold to the defendant 
 " 50 tons best palm oil, expected to arrive " " per the 
 Chalco," " at £40 10s. per ton," " net duty, and inferior oil, 
 if any, at a fair allowance." The oil on arrival was found 
 to contain only one-fifth of the best oil, and the defendant 
 refused to accept, whereupon the plaintiff brought his action. 
 It was a question' as to what was the intention of the parties, 
 and it was taken that in entering into the contract, they had 
 purposely left undefined what was to be the proportion of 
 " wet, dirty and inferior oil." As Erie, J., remarked, " They 
 were both engaged in the palm oil trade, and would be aware 
 that there was great doubt as to the proportions of good and 
 inferior oil in each cargo ; and, therefore, they may well 
 have made the contract on the understanding that such por- 
 tions should not be specified." There was one established 
 usage in the palm oil trade as to what proportions would 
 satisfy a contract to deliver " best " palm oil, and evidence 
 of this usage was admitted to explain what was left unde- 
 fined in the contract, (c) So where, by a contract made at 
 S., between A., who resided in that place, and B., who 
 resided in London, B. sold to A. a cargo of St. Giles Marias 
 
 (c) Lucas V. Bristowe, E. B. & E. 907. 
 
THE USAGES OF TRADE, THEIR OFFICE. 221 
 
 wheat, free on board at a French port. The grain was 
 unknown at S., but was shown to be known elsewhere in the 
 trade to contain a mixture of barley. But, although such 
 evidence was offered at the trial, the judge refused it, unless 
 it could also be shown that the fact was well known at S. 
 This ruling was held to be erroneous, (c?) In all these cases 
 we have seen usage explaining or eking out the meaning of 
 written contracts. In all it might be presumed that the 
 usage which was admitted in evidence was present to the 
 minds of the parties at the time they contracted. The very 
 nature of the contracts led to the presumption. Still there 
 was nothing which was palpably ambiguous, and if there 
 had been no custom the contracts could in most of the cases 
 have been read without bringing about any absurdity in 
 meaning, without the interpolation of the terms which these 
 usages had the effect of adding. Thus, " pitch pine timber " 
 might have been understood as a general term applicable to 
 all kinds of that wood which comes from Central America, 
 and as inclusive of that of even Dariae, and not limited to 
 the meaning that the phrase had at Savannah. " Weekly 
 accounts " might have been understood as meaning accounts 
 for the extra as well as the days' work, and so with the rest. 
 
 Ambiguity Introduced by Usage — Where Usage Can Arise — 
 Unusual Contract. 
 
 Sec. 97. In most of the cases there was no patent ambigu- 
 ity upon the face of the contract ; it is only a knowledge of 
 the usage which introduces the doubt as to what was really 
 meant. Under these circumstances, we confess we scarcely 
 understand the decision in Cockburn v. Alexander. {e) In 
 that case it appeared that a ship was chartered to bring 
 home a cargo of wool, tallow, bark and other legal merchan- 
 dise. The bark was not to exceed 50 tons, the tallow and 
 hides not to exceed 80 tons, and " to deliver the same on 
 being paid freight as follows : for wool, one penny-halfpenny 
 
 [d] Ryder v. Woodky, 10 W. R. 294. (e) 6 C. B. 791 ; 17 L. J. C. P. 74. 
 
222 THE USAGES OF TEADE, THEIE OFFICE. 
 
 per pound, and one penny-halfpenny and one-eightli of a 
 penny per pound impressed," for the other three articles 
 separate rates were fixed, and the captain was to sign bills of 
 lading at any rate of freight without prejudice to the charter- 
 party. The ship returned with a full cargo, consisting of a 
 small portion only of wool, and the residue tallow, bark, 
 hides and other legal merchandise. Now, here it was held 
 that there was no ambiguity upon the face of the charter- 
 party to admit parol evidence for the purpose of showing 
 who was to pay for pressing any wool that might be shipped. 
 The Chief Baron (Wilde) used these words in the course of 
 his judgment : " There being nothing, therefore, on the face 
 of the contract to raise any doubt or ambiguity that requires 
 to be removed or explained, it is not a case in which parol 
 evidence was admissible." (/) Bat might not such proof 
 have been written into the written contract without making 
 it nonsensical or inconsistent with itself, and is not that the 
 true test of its admissibility ? Does not the knowledge that 
 there was such a usage in this case, just as in the others, 
 introduce an ambiguity from the fact that the written con- 
 tract does not say enough ? To us there seems nothing in 
 the nature of this contract which should have been regarded 
 as impliedly excluding such proof. We can quite under- 
 stand that such an implication may arise. We know that it 
 is only in trades which have a settled course of business that 
 usages can exist ; if, therefore, a transaction, even although 
 in the course of such a trade, deviated from the ordinary 
 course of that trade — if it was unusual in any of its incidents, 
 then the presumption that the parties had been acting in the 
 light of ordinary custom would not arise, but a presumption 
 of a contrary nature would be the ruling thought. This 
 principle has been given effect to. A., a ship broker, 
 engaged with a ship owner to have a full cargo for the 
 ship, the rates of freight for which would average 40s. per 
 
 (/) 6 0. B. 813. 
 
THE USAGES OF TEADE, THEIR OFFICE. 223 
 
 ton, and at least nine cabin passengers, passage-money to 
 average £75. The contract was fulfilled as to the cabin 
 passengers, but the average rate of freight for goods put on 
 board by A. amounted to 32s. only per ton; he shipped 
 on board, however, several steerage passengers for the voy- 
 age, the passage-money paid by whom, after deducting the 
 expense of their diet, &c., when added to the freight of 
 the cargo properly so called, made the average earnings 
 of the whole ship per ton amount to more than 40s. It 
 was held that as the contract was an unusual one, the evi- 
 dence was not admissible to show that the terms " cargo " 
 and " freight " used with reference to the voyage on which 
 the ship was engaged would, by the general usage and course 
 of the trade, be considered to comprise steerage passengers 
 and the net profit arising from their passage money, (y) 
 Before leaving the subject of glossarial usages, as they might 
 be called, we may mention the case of Bowman v. Horsey, {h) 
 in which it was decided that evidence of usage of trade is 
 admissible to show the meaning of ambiguous words in a 
 packer's receipt of goods. 
 
 When Usage is Referred to in Contract. 
 
 Sec. 98. Where by the express terms of a contract a certain 
 mode of performance is provided, but the contract also refers 
 to and makes the usage or custom of a certain locality a part 
 of the contract, proof of the usage or custom is admissible, 
 although it provides another and different mode of per- 
 formance from that provided by the express terms of the 
 contract, because in such a case the usage cannot be said to 
 be repugnant to the express terms of the contract, but rather 
 
 {g) Lewis v. Marshall, 7 M. & G. In the case of an unusual contract — 
 
 729. In the report of the case the Have the terms acquired any (and 
 
 editors have added the following what) peculiar meaning in general 
 
 note: "In construing as usual mer- mercantile language or in the par- 
 
 cantile contract the question would ticular trade ? " Page 745. 
 
 seem to be— In what sense have the [h) 2 M. & Rot. 81. 
 terms been used in similar contracts ? 
 
224 THE USAGES OF TE.ADE, THEIB OFFICE. 
 
 to provide an alternative mode of performance, leaving it 
 optional with the parties to take the performance according 
 to the usage, or according to the mode named in the con- 
 tract. Thus, in a Connecticut case^ the plaintiff, as master of 
 a whaling ship, made a voyage under shipping articles as 
 follows : "And the owners of the ship New England hereby 
 promise, upon the fulfilment of the above conditions, to pay 
 the shares of the net proceeds of all that shall be obtained 
 by the crew during the voyage, agreeably to the shares set 
 against their respective names, as soo7i after the return of the 
 voyage as the oil, or whatever else may be obtained, can be 
 sold and the voyage made up by the owner or agent of said 
 ship. * * * And the parties further agree to he subject to the 
 usages and customs of the port of New- London in reference 
 to this agreement." The ship returned to New London May 
 30th, with a full cargo of whale oil and bone, but although 
 the cargo was discharged, weighed and gauged before the 
 15th of June but was not sold, and was held by the owners 
 for an increased price, and they refused to pay the petitioner 
 his share (one-fifteenth), because the cargo was not sold, and 
 because, under the contract, the share was not to be paid 
 until sold, &c. August 12th following, the plaintiff brought 
 this petition in equity, praying for an account and the pay- 
 ment of his share. The plaintiff claimed that by the cus- 
 tom of the port of New London he was entitled to be paid 
 his share in money, estimating the unsold cargo at its mar- 
 ket value, or to have it apportioned, and his share allotted 
 to him as soon as the vessel was discharged and the cargo 
 measured and weighed, and was not bound to wait until the 
 oil was sold. The custom was found as claimed by the plain- 
 tiff. It was claimed by the defendants that evidence of the 
 custom was not admissible, and could not control, because a 
 different mode of settlement and payment was provided by 
 the contract. But the court held otherwise, Storrs, C. J., in 
 
 ^ Smith V. Lawrence, 26 Conn. 467. 
 
THE TJSAG-ES OF TRADE, THEIR OFFICE. 225 
 
 delivering the opinion of the court saying, " We think that 
 the evidence adduced by the plaintiff to prove a custom and 
 usage prevailing at the port of New London when the agree- 
 ment between these parties was made * * was admissible, 
 and that the plaintiff is entitled to have his rights determined 
 by it. It was one of the stipulations of that agreement that 
 the parties should be subject to the usages and customs of 
 that port in reference to the subject of that agreement. It 
 is found that originally the shipping articles for voyages like 
 that in which the plaintiff was engaged were substantially 
 like that in the present case, except that they did not con- 
 tain any clause in reference to the payment of the captain 
 and crew after the oil was sold, and that then it was the gen- 
 eral practice to apportion and deliver to them respectively 
 their share of the oil and bone specifically," and then he 
 traces the change in the custom until it became as shown by 
 the plaintiff. " The principal objection made as to the proof 
 of this custom is, that it is variant from and contradictory 
 to the clear terms of the written agreement between these 
 parties in regard to the mode in which the plaintiff should 
 be paid for his services. It is plain that, whether such a 
 custom as is here shown could affect the agreement in this 
 case if it constituted no part of the express contract between 
 the parties, but was introduced as usages usually are, for the 
 purpose of expounding the agreement, is a point which it is 
 unnecessary for us to decide, because the custom here shown 
 constitutes a part of the express contract between the parties. 
 It is expressly referred to in the stipulation which has been 
 mentioned respecting it, and, therefore, is to be deemed a 
 part of that stipulation, as much as if it was s6t forth in 
 terms in the written agreement. And if we suppose that 
 the custom is recited therein in terms, all difficulty on this 
 point vanishes. It requires no authority to show that it 
 might be made a part of that agreement as well by refer- 
 ence as by recital. Now, if the custom were described in 
 
 14 
 
226 THE USAGES OF TRADE, THEIK OFFICE. 
 
 terms, would it be repugnant to or inconsistent with the rest 
 of the contract ? It is only a modification or qualification of 
 the preceding stipulation in the contract, in regard to the 
 mode in which the plaintijff should be paid for his services, 
 and providing for a different mode in the exercise by him of 
 the option reserved to him on that subject, — an alternative 
 promised to perform a certain act, or, at the option of the 
 promisee, a certain other act, or perhaps rather, to do the 
 same thing in one mode, or another, at the option of the 
 promisee." But some of the courts are inclined to hold, that 
 even where a usage is referred to and adopted as a part of the 
 contract, it cannot be permitted to overcome the presumption 
 that the parties contracted in reference to the general law, if 
 there is even a slight indication of an intent appearing in the 
 instrument corroborating such presumption. And especially 
 is this so if the contract expressly refers to certain usages 
 but not to the usage attempted to be enforced. In a Massa- 
 chusetts case'' it was held to be the general law that in adjust- 
 ing a partial loss on a ship, which has been repaired, the 
 proceeds of the old materials not used in the repairs, are first 
 to be deducted. The underwriters claimed, in virtue of a 
 local usage at Boston, where the policy was issued, that they 
 had the right of deducting one-third new for old from the 
 gross amount of the expense of repairs. The policy was 
 according to a form which had been recently adopted by all 
 the insurance companies at Boston, and contained express 
 reference to certain usages of the Boston insurance compa- 
 nies, but none in respect to this. There were some stipula- 
 tions in the policy touching partial losses, which, however, 
 were aside of the point designed to be established by the 
 usage. The question as to the general law relative to this 
 question had been settled in New York, and for several 
 years before the policy was issued, had been pending in the 
 Massachusetts court. The court rejected the usage, saying, 
 
 ' Eagar v. Atl<xs Ins. Co., 14 Pick. (Mass.) 14. 
 
THE USAGES OF TKADE, THEIR OFFICE. 227 
 
 " From these and other circumstances, the presumption is 
 strong that the parties did not treat as to the mode of adjust- 
 ment on the basis of usage, but on that of the existing law, 
 however it might be decided. When the contract refers to 
 the customs and rules of insurance in Boston, and specifies 
 how far they shall constitute a part of the contract, it must 
 be inferred that the parties did not intend it should be 
 aflPected thereby, and the extent specified, especially as the 
 form of the policy was settled with great care and delibera- 
 tion." The court also added another reason why the usage 
 should not be received, which was, that the contract being 
 one of indemnity, the usage was opposed to the essence of the 
 contract. 
 
 Ordinary Parol Evidence and Usage — Rules as to Usage. 
 
 Sec. 99. With a view of showing the distinction which 
 exists between ordinary parol evidence and evidence of 
 usage, we think it well to prefix two cases in which the 
 admissibility of the former in relation to written records of 
 transactions has been the subject of judicial decision. In 
 an action of assumpsit by the drawer against the acceptor of 
 two biHs of exchange payable respectively six and twelve 
 months after date, the plea set forth an agreement (not stated 
 to be in writing) between the plaintiff and the defendant, by 
 which, before the making of the bills, it was agreed that the 
 defendant should be discharged from all liability in an action 
 commenced against him by the plaintiff on a promissory 
 note on his paying the plaintiff the costs of such action, and 
 a certain sum of money, and accepting the bills of exchange 
 in question — in case the plaintiff should recover in another 
 action brought by him against another party, on a promis- 
 sory note given under similar circumstances to the defend- 
 ants, and that until he should so recover, or if he should not 
 so recover, he should not call for payment of the bills of 
 exchange, and the plea averred that the defendant accord- 
 ingly paid the costs and money agreed for, and accepted the 
 
228 
 
 THE USA&ES OF TEADE, THEIR OFFICE. 
 
 bills of exchange in question, and that the action against 
 such third party was still undetermined, it was held on 
 demurrer that the plea was bad in as much as the defendant 
 could not vary the absolute contract entered into by the bills 
 of exchange by a contemporaneous oral contract inconsistent 
 with it.('i) Here, then, we have a direct authority, and 
 
 (i) Adams v. Wordley, 1 M. & W. 
 374; see Menzies v. Lightfoot, 19 W. 
 E.578; 11 L. R. Eq. 459; 4 L. J. Chan. 
 561. In Wheeler v. Newbold, 16 N. Y. 
 39, an action was brought to recover 
 the amount of certain notes, &c., 
 deposited by the plaintiff with the 
 defendant as collateral security for a 
 loan. The defendant offered to 
 prove a custom for persons holding 
 such collaterals to sell them at pri- 
 vate sale, within a reasonable time 
 after the debt became due, after 
 nstice that such sale would be made. 
 The evidence was held inadmissible. 
 In Siggins v. Moore, 34 N. Y. 417, an 
 action was brought to recover the 
 price of grain sold by the plaintiff to 
 the defendant through a broker in 
 the city of New York. The defence 
 was that the defendant had paid the 
 broker the price, and offered evi- 
 dence of a custom in the city of New 
 York for persons buying to pay the 
 broker, when the seller lives out of 
 the city. The Court of Appeals held 
 that this evidence was not admissi- 
 ble. " In this case," said Peckham, 
 J., " the law defined the rights and 
 duties of this broker as clearly as did 
 those of the pledges of stock in Allen 
 V. Dykers, 7 Hill (N. Y.) 497, or of 
 choses in action in Bowen v. Newell, 
 8 N. Y. 190, and they could no more 
 be controlled by usage." "It is 
 obvious," said Wright, J., in the 
 same case, " that the rights of the 
 parties cannot be controlled or 
 affected by a local usage in a particu- 
 
 lar trade found by the referee. The 
 usage is invalid, and has no binding 
 force upon the plaintiff for various 
 reasons. It being the law of the 
 State that a broker in general has 
 no authority to sell in his own name, 
 and therefore no authority to receive 
 payment for goods sold by him, 
 a local custom like that found by the 
 referee to exist in the city of New 
 York was void. Such a usage, if 
 sanctioned, would be to overthrow 
 the law in the city of New York. If 
 it prevails there as the referee found 
 it, it cannot be allowed to control 
 the settled and acknowledged law of 
 the State." The position taken by 
 the court in this case is wholly 
 untenable, aud without a valid 
 reason. The idea that beSause by 
 the common law existing in New 
 York a broker has no authority to 
 sell in his own name, and conse- 
 quently no authority to receive pay- 
 ment for goods sold by him, a usage 
 that vests him with that authority is 
 invalid, is preposterous. Is there 
 any doubt but that the defendant 
 might have e.Kcused himself from 
 liability by showing that the plain- 
 tiff had recognized such usage in 
 numerous similar transactions with 
 the same broker, which were known 
 to the defendant? Would not the 
 court, under such a state of facts, 
 have been compelled to say that, 
 notwithstanding the rules of law in 
 that respect, the plaintiff had impli- 
 edly conferred authority upon the 
 
THE USAGES OF TRADE, THEIK OFFICE. 229 
 
 although the evidence tendered in that ease was not of a 
 usage but of another contract, the rule and principle are the 
 same in both cases. Thus, where A., a broker, employed by 
 
 B. to sell certain railway shares, agreed with C, D.'s broker, 
 to sell him fifty shares, of which A. afterwards informed his 
 clerk at his office, who made an entry in the book as of a 
 sale from A. to C, and a contract note to the same effect was 
 sent to C. A. subsequently saw the entry in the book and 
 altered it by writing the name of B. as seller. Another note 
 was accordingly sent the same evening or the next morning 
 to C, but C received them both together the nest morning. 
 
 C. did not return the first note, nor did A. request to have 
 it returned. In an action brought by D. against A. for 
 breach of the agreement in not completing the sale, the 
 learned judge who tried the cause left it to the jury to say 
 whether the second note was a correction of a mistake in the 
 first, and told the jury that if the defendant entered into a 
 written contract in his own name, he could not afterwards 
 set up that he was acting as a broker merely, and that 
 although known to be a broker, if he signed the contract in 
 his own name, he was liable, and it was held that this was 
 no misdirection, and further that evidence that it was the 
 custom in Liverpool to send in brokers' notes without dis- 
 closing the principal's name, was properly rejected. (^) 
 
 broker to receive pay for him ? And as by an individual usage ? If the 
 
 yet, such authority is derived entirely one is invalid, why is not the other ? 
 
 from a private usage between the (k) Magee v. Atkinson, 2 M. & W. 
 
 plaintiff and his broker. Now, if a 440. In Thomas v. O'Hara, 1 Const, 
 
 uniform usage in New York city, Kep. (S. C.) 303, it was held that 
 
 extending to all sales by brokers, evidence of a trade to continue the 
 
 existed in this respect, and was insertion of advertisements, when 
 
 known to the parties, why should not no order is given respecting the time 
 
 such general usage have the effect during which it shall be inserted, 
 
 to justify the defendant in paying until directions to discontinue it is 
 
 the broker, as well as the private given, was admissible. But, in 
 
 usage before referred to ? In other Thomas v. Graves, 1 Id. 310, it was 
 
 words, Why may not the rules of held that a usage to charge for the 
 
 law be impliedly waived by a uni- continuance of an advertisement 
 
 form and well-known usage, as well long after the object of it has on the 
 
230 THE USAGES OF TKADE, THEIK OFFICE. 
 
 Classification— Principle of. 
 
 Sec. 100. We come now to a consideration of those cases 
 in which incidents or terms have been added to written con- 
 tracts by proof of usage. We have pointed out that the dis- 
 tinction which we have here made is one rather in fancy than 
 in reality, but no other distinction seemed to offer hope of 
 better method. The classification of the principles of admis- 
 sibility of usage on the basis of the different trades or call- 
 ings in which these factual laws were formed, or on the basis 
 of the different instruments in the interpretation of which 
 usages were admitted, had nothing to recommend it, although 
 it has been adopted by Mr. Fisher in his " Digest." Indeed 
 it was wrong in principle and misleading in result. The 
 mere fact that the usages were in themselves different would 
 be as intelligible a ground of classification as the one alluded 
 to. There can be no reason for differentiating usages because 
 the one explained the meaning of a technical word in a 
 brewer's invoice, and the other another word of doubtful 
 meaning in the bought and sold notes of a stock exchange 
 transaction. It is the legal principles which are to deter- 
 mine the admissibility or inadmissibility of these in courts 
 of law which ought to be made the ground of their associa- 
 
 face of it ceased, merely because its ness, but will be disregarded by 
 
 discontinuance has not been or- the courts, whenever they operate 
 
 dered, was held unreasonable and unjustly upon individuals. United 
 
 void. A usage among printers and States v. McCall, Gilp. (U. S.) 577 ; see 
 
 booksellers, that a printer, contract- also United States v. Duval, Qilp. (U. 
 
 ing to print for a bookseller a certain S.) 372. But a usage of the different 
 
 number of copies, shall not print departments of the government to 
 
 with the same types, while standing, allow commissions to the officers of 
 
 an extra number for his own use, is government upon disbursements of 
 
 reasonable, and not in restraint of money under a special authority, 
 
 trade. Williams v. Oilman, 8 Me. not connected with their regular 
 
 276. And such would be the rule official duties, may be proved, for 
 
 even were there no usage to that the purpose of establishing the 
 
 eflfect. The usages of a department measure of such officers' compensa- 
 
 of the government, in settling its tion. United States v. Fillebrown, 7 
 
 accounts, are intended for general Pet. (U. S.) 50. 
 rules in the transaction of its busi- 
 
THE USAGES OF TEADE, THEIR OFFICE. 231 
 
 tion in one class rather than their intrinsic difference as facts. 
 There was therefore no really scientific classification possible. 
 We proceed then to the statement of the principles of some 
 of the decisions. 
 
 Usage Adding Incident— Contract Varied by. 
 
 Sec. 101. In the case of Brown v. Byrne,{l) which was 
 an action for freight by a shipowner against the indorsee of 
 a bill of lading, to whom goods had been delivered at Liver- 
 pool, and who had accepted them, the bill of lading making 
 them deliverable, " he paying freight for them five-eighths 
 of a penny sterling per pound, with £5 per cent, primage 
 and average accustomed," it was held that evidence was 
 admissible, that by the custom of Liverpool the shipowner 
 was entitled to a deduction of three months' discount from 
 the freight, though such custom applied only to goods com- 
 ing from ports in the Southern States of America. In this 
 case we find that a term not expressed in the bill of lading 
 is added to it by the custom of Liverpool. Some see the ap- 
 parent terms of a contract varied in Spartali V. BeneGke,{m) 
 where in a contract for the sale of thirty bales of goats' wool, 
 containing the following stipulation : " Customary allowance 
 for tare and draft to be paid for by cash in one month, less 5 
 per cent, discount," evidence was allowed to show that by a 
 usage of trade vendors are not bound under similar contracts 
 to deliver wool without payment, and it was said that such a 
 usage sought to annex to the contract aft incident not incon- 
 sistent with its terms. 
 
 Of Corporations, Acts not Conformable to Charter. 
 
 Sec. 102. A corporation which is authorized to contract in 
 
 (^) 3 E. & B. 703; 18 Jur. 700. that evidence of mercantile usage 
 
 Where the master of a vessel re- and understanding that injuries by 
 
 ceived skins to be carried from New rats are considered and treated as 
 
 Orleans to New York, there to be perils of the sea, was not admissi- 
 
 delivered in good order, dangers of ble. Aymar v. Astor, 6 Cow. (N. Y.) 
 
 the seas excepted, and the skins 266. 
 
 were injured by rats, it was held (m) IOC. B. 212. 
 
232 THE USAGES OF XEADE, THEIR OFFICE. 
 
 a certain way, by a course of practice adopted by it, render 
 themselves liable upon instruments executed or contracts 
 made in a different way. Thus, where the charter of an 
 insurance company provides that " all policies signed by the 
 president, or in his absence by the assistant, and counter- 
 signed by the secretary, shall be binding on the company," 
 and the company had adopted a practice of issuing policies 
 without their being countersigned by the secretary, the com- 
 pany cannot escape liability upon that ground, for having 
 established a usage in this respect different from that pre- 
 scribed by law, however improper in itself, yet they cannot 
 avail themselves of their own wrong to avoid the contract.* 
 So it has been held the National and other banks, which 
 have been accustomed to receive bonds and other valuables 
 for safe keeping, and this is known to and acquiesced in by 
 the directors, thereby become liable for its loss through its 
 gross negligence or carelessness, although such deposit is not 
 authorized by its charter.' 
 
 Time of Payment— Usage Vary by Time of Payment— Cases 
 Reconciled. 
 
 Sec. 103. Again, in Field v. Lelean,{n) evidence of a 
 usage amongst brokers that on the sales of mining shares 
 the seller is not bound without contemporaneous payment 
 was held admissible to show that the defendant was not enti- 
 tled to have the shares which he had bought from the plain- 
 tiff delivered to him before payment, although by the bought 
 and sold notes payment of the price was to be made, half in 
 two, half in four months, and nothing was there said as to 
 
 8 Bulkly V. The Derby Fishing Co., 2 v. Smith, 62 Peiin. St. 47 ; Tamer v. 
 
 Conn. 353. First National Bank of Kehokfak, 26 
 
 ' Chattahooohe National Bank v. Iowa 562 ; First National Bank v. 
 
 Schley, 58 Ga. 369; Foster v. Essex Graham, 79 Penn. St. 106. Contra, 
 
 Bank, 17 Mass. 479; Smith v. First see Wiley y . National Bank of Brattk- 
 
 Naiional Bank of Westfield, 99 Mass. horo, 47 Vt. 546 ; Whitney v. National 
 
 605 ; Lancaster County National Bank Bank of Brattleboro, 50 Id. 389. 
 
 (n) 30 L. J. Exch. 168 ; Exch. Cham. 6 H. & N. 617. 
 
THE USAGES OF TRADE, THEIB, OFFICE. 233 
 
 the time of delivery, (o) In that case it was argued that the 
 case of Spartali v. Benecke{p) was directly in point in favor 
 of the defendant, and Williams, J., in his judgment said, 
 " It may be observed that in that case, although the written 
 instrument of sale was mutatis mutandis, the same substan- 
 tially as in the present, the usage relied on was different. In 
 the present it was simply that the delivery is to take place at 
 the appointed time for payment, and not before. In Spar- 
 tali V. Beneche, the usage relied upon was that the delivery 
 was to be at the option of the buyer, and that he might re- 
 quire it at any time before the appointed day of payment, 
 but in no ease without payment of the price. Therefore, it 
 was a case where I apprehend that Wild^, C. J., in his judg- 
 ment treated the usage as varying the time for payment ex- 
 pressed in the statement of the contract; inasmuch as accord- 
 ing to that usage, the delivery intended by the contract might 
 take place so as to give the seller a right to call for payment 
 before the time specified in the written instrument. But ac- 
 cording to the usage proved in the present case, no delivery 
 can be required or is intended to take place before that time 
 arrived. If Spartali v. Beneche cannot be distinguished in 
 this way, I agree it ought to be overruled." 
 
 Warranty Modified by Usage. 
 
 Sec. 104. Again, where a horse had been sold by private 
 contract at a repository with a written warranty of soundness, 
 and the purchaser afterwards brought an action against the 
 seller on account of the unsoundness of the horse. The de- 
 fendant was permitted to show that by one of the printed 
 regulations hung up at the repository, warranties were only 
 to remain in force till twelve o'clock on the day after the sale, 
 and then upon further proof that the plaintiflf was aware of 
 this regulation, and yet made no complaint within the limited 
 time, a nonsuit was directed to be entered, (g) 
 
 (o) See Godts v. Rose 17 0. B. 229. E. 508; see Smart v. Hyde, 8 M. & 
 (;p) 10 C. B. 212; 19 L. J. 0. B. 293. W. 723 ; Foster v. Mentor Life Assur- 
 [q) Bywater v. Richardson, 1 A. & ance Co., 3 E. & B. 48. 
 
234 
 
 THE USAGES OF TKADE, THEIR OFFICE. 
 
 Proof of Usage to Establish a Warranty. 
 
 Sec. 105. The question as to whether or not a usage of a 
 certain trade can be shown to establish a warranty as to the 
 quality, soundness or condition of goods sold, without a war- 
 ranty, and under such circumstances that none can be 
 implied, has been variously decided in our courts.^ But, 
 whatever may formerly have been held in this respect, it 
 may be regarded as reasonably well settled that a warranty 
 cannot he imported into a contract upon the sale of property, 
 by proof of a mere local usage of the trade, when the effect 
 would be to contravene or override a well-settled rule of law, 
 unless it was known by both parties and the contract was 
 made in reference thereto. This question is quite important, 
 and it may be advisable to review the cases briefly. In an 
 early New York case^ the question was as to the effect of a 
 
 that evidence of a usage of manufac- 
 turers of iron castings to warrant 
 the quahty of the articles made by 
 them, without an express contract 
 to that effect, is admissible, and if 
 established is sufficient to uphold an 
 action for a breach of warranty. In 
 an early Pennsylvania case— iSnow- 
 den V. Warden, 3 Kawles (Penn.) 110 
 — it was held that evidence of a 
 usage among cotton dealers in Phila- 
 delphia, to regard a sale of cotton as 
 accompanied with a warranty against 
 latent defects, although there was 
 neither a warranty or fraud in the 
 sale. But the judgment in tliis case 
 was dissented from by Gibson, J., and 
 in later cases before the same court 
 a contrary doctrine has been held. 
 Coxe v. Seisky, 19 Penn. St. 243; 
 Wetherell v. Neilson, 20 Id. 448. 
 
 ^ Thompson v. Ashton, 14 Johns. 
 316. In Bogert v. People's Bank, 16 
 Hun. (N. Y.) 270, it was held that 
 proof of a usage or custom as to 
 what acceptances were understood 
 to be in the commercial community 
 
 '' In Boorman v. Jenkins, 12 Wend. 
 (N. Y.) 666, a contrary doctrine was 
 apparently held. See also Cassidy v. 
 Begoden, 6 J. & Sp. (N. Y. Superior 
 Ct.) 180. But it will be observed 
 that these cases merely hold that 
 evidence of a usage among cotton 
 dealers is admissible to show that a 
 sale by sample impHes a warranty, 
 and in this respect there is no con- 
 flict with the rules of law. In Leba- 
 non V. Heath, 47 N. H. 453, evidence 
 of a usage of a, plan that substitute 
 brokers were understood as warrant- 
 ing that the substitute was not a 
 deserter, of which usage the defend- 
 ant knew, was held admissible, and 
 sufficient to support an implied 
 warranty that the substitute was not 
 a deserter. The doctrine of this case 
 cannot be said to conflict with the 
 rule stated in the text, as the doc- 
 trine of caveat emptor did not apply 
 to the contract. So in Sumner v. 
 Tyson, 20 N. H. 384, a doctrine in 
 opposition to that stated in the text 
 was held. In that case it was held 
 
THE USAGES OF TRADE, THEIR OFFICE. 235 
 
 local usage, or the usage of a certain trade, upon a contract 
 for the sale of goods without a warranty. In that case the 
 plaintiff purchased a quantity of crockery of the defendants, 
 in New York city, and upon trial he offered to show, to 
 establish a warranty, that it was the custom of merchants 
 engaged in the purchase and sale of crockery to sell on the 
 invoice without an examination of the contents of the crates 
 in which it was packed, and that it was the uniform under- 
 standing that the exhibition of the invoice amounted to an 
 undertaking on the part of the sellers that the wares were 
 good and merchantable. The court rejected the evidence 
 and nonsuited the plaintiff, and upon a motion to set aside 
 the nonsuit the court held that no custom in the sale of any 
 particular description of goods can be admitted to control 
 the general rules of law applicable to such contracts. In a 
 later case a similar doctrine was held by the Court of 
 Appeals. In that case the transaction also arose in New 
 York city, and the action was brought to recover for an 
 alleged breach of warranty^ in the sale of a quantity of 
 blankets. The plaintiff offered evidence to show that there 
 was a custom among those dealing in blankets to sell by 
 sample, without opening the bales ; but if, upon opening the 
 bales, the blankets were found defective, it was usual for the 
 seller either to make an allowance to the purchaser or take 
 them back. The court held that the doctrine of the case of 
 Thompson v. Ashton, ante, applied in this case, and that a 
 warranty could not be established by a usage of trade, con- 
 trary to the general rules of law. In Massachusetts this 
 question has been before the court upon several occasions, 
 and the rule previously stated adopted. In one case* a 
 quantity of satinets was sold in cases. The sale was made 
 by sample, and both in the sample and the goods sold there 
 
 of New York was inadmissible to in reference to them, 
 
 establish an implied warranty, the ^ Bieme v. Dodd, 5 N. Y. 95. 
 
 acceptances being valid and no ex- * Dickinson v. Oay, 7 Allen (Mass.) 
 
 press warranty having been made 29. 
 
236 THE USAGES OF TKADE, THEIK OFFICE. 
 
 was a latent defect not discoverable upon inspection, nor 
 until the goods were printed. The consequence was that 
 the goods were unmerchantable. It was claimed that by the 
 usages of the trade there was an implied warranty that the 
 goods were merchantable. The court held that a custom 
 importing a warranty into a contract, where by law none 
 could be implied, was contrary to the rules of the common 
 law upon that subject, and therefore void. In a later case^ 
 the question was again before the court. In that case a 
 quantity of goat skins — forty bales — were sold by a broker, 
 who, without authority from the principal, put into the 
 memorandum of sale the words, "to be of merchantable 
 quality and in good order." In order to establish the 
 authority of the broker to insert such a warranty into the 
 memorandum of sale, it was claimed that by custom of the 
 trade there was, in all sales of such skins, an implied war- 
 ranty that they were of merchantable quality ; but the court 
 held that such a custom was invalid. Says the court : " It 
 contravenes the principle which has been sanctioned and 
 adopted by this court upon full and deliberate consideration, 
 that no usage will be legal or binding upon parties which 
 not only relates to and regulates a particular course or mode 
 of dealing, but which also engrafts on a contract of sale a 
 stipulation or obligation tuhich is inconsistent with the rules 
 of the common law upon that subject." In a case before 
 the United States Supreme Court® this question was 
 reviewed in a careful and able manner. In that case, 
 A., a dealer of wool, in Boston, sent to B., a dealer of 
 wool, in Hartford, Conn., samples of foreign wool in bales, 
 which he had for sale on commission, with the prices thereof 
 B. offered to purchase the lot at the prices named if equal to 
 the samples sent him. A. accepted the offer, provided, B. 
 would come to Boston and examine the wool, and say whether 
 
 5 Dodd V. Farlow, 11 Allen (Mass.) ^Barnard v. kellogg, 12 Wall (TJ. 
 
 426. '&ee&\io,Ha!ikins W.Warren, lib S.) 383. 
 Mass. 514. 
 
V 
 
 THE USAGES OF TKADE, THEIK OFFICE. 237 
 
 he would take it. B. accordingly went to Boston, and after 
 having examined a number of bales, and being offered an 
 opportunity to examine the balance and to have them opened 
 for his inspection, which he declined; he purchased the wool. 
 It turned out that the wool, unknown to A., was deceitfully 
 packed, and proved to be rotten and damaged wool, with tags 
 concealed therein, with an outer covering of fleeces in their 
 ordinary state. It was held that this was not a sale by sam- 
 ple, and that, as there was neither an express or implied war- 
 ranty that the bales not examined should correspond with 
 those which were, the rule of caveat emptor applied, and con- 
 sequently, that proof that by a custom' among dealers in wool 
 in bales in New York and Boston, the two principal markets 
 in this country for the sale of foreign wool, there is an im- 
 plied warranty of the seller to the purchaser, that the same 
 is not falsely or deceitfully packed, is not admissible, especi- 
 ally, when the parties did not know of the custom. " It is 
 apparent," said Davis, J., " that the usage in question was 
 inconsistent with the contract which the parties chose to 
 make for themselves, and contrary to the wise rule of law 
 governing the sale of personal property. It introduced a 
 new element into their contract, and added to it a warranty 
 which the law did not raise, nor the parties intend it to con- 
 tain. The parties negotiated on the basis of caveat emptor^ 
 and contracted accordingly. This, they had the right to do, 
 and by the terms of the contract the law placed on the buyer 
 the risk of the purchase, and relieved the seller from lia- 
 bility for latent defects. But this usage of trade steps in 
 and seeks to change the position of the parties, and to im- 
 press on the seller a burden, which the law said, on making 
 his contract, he should not carry. By this means, a new 
 contract is made for the parties, and their rights and liabili- 
 ties under the law essentially altered. If the doctrine of 
 caveat emptor can be changed by a special usage of trade, in 
 the manner proposed, by the custom of dealers in wool in 
 
238 THE USAGES OF TRADE, THEIK OFFICE. 
 
 Boston, it is easy to see that it can be changed in other par- 
 ticulars, and, in this way, the whole doctrine frittered away." 
 But the learned judge evidently mistook the office of a usage. 
 A usage is never admissible to add new terms to a contract, 
 or to make a new contract for the parties, but rather to show 
 what contract was in fact made by the parties, and what fheir 
 real intention was as to the obligations to be assumed, and it 
 strikes us as exceedingly erroneous to say that a usage may 
 not be shown, the eflfect of which is to raise an implied obliga- 
 tion, or add incidents to a contract which the law does not 
 impose, simply because the law does not impose the obliga- 
 tion. If the contract is made relative to matters about which 
 there is a well defined usage, and there is no reasonable 
 doubt that the parties contracted in reference to it rather 
 than in reference to the law, according to that golden rule 
 of interpretation that the intention of the parties shall be 
 given effect to if possible, it would seem that the usage 
 might be shown. Upon what principle, or by what pro- 
 cess of accurate reasoning, can it be said that the parties 
 may not, by a well settled and known usage, annex an im- 
 plied obligation of warranty to their contracts ? We cannot 
 doubt but that, notwithstanding the loose talk of the courts 
 in some of the States,'' to the effect that a usage cannot be 
 shown that contravenes the general law, or adds incidents to 
 contracts not raised by the law, that even those courts, would, 
 as was intimated by Davis, J.,^ hold that parties who knew of 
 such usage at the time the contract was entered into, where 
 the usage is shown to be uniform and certain, feel bound to 
 hold that a warranty might be raised thereby. A contrary 
 rule would be repugnant to that sound and well established 
 rule of construction that requires that the intention of the par- 
 ties to a contract shall be ascertained and given effect to, and 
 to that end permits a resort to extrinsic contemporaneous cir- 
 
 ' Massachusetts, New Yoi-k and previous notes to this section. 
 Pennsylvania ; see cases cited in * Barnard v. Kellogg, ante. 
 
THE USAGES OF TRADE, THEIK OFFICE. 239 
 
 cumstances. In other words, that requires the court to place 
 itself as nearly as possible in the situation of the parties to 
 the contract, and in that light to say what their real inten- 
 tion was. Indeed, in Pennsylvania,^ where the courts have 
 had considerable to say about usages being inadmissible where 
 they conflict with the general law, and where the courts have 
 held that a warranty cannot be raised by a usage of trade,^ 
 it has been held that the custom among merchants in Pitts- 
 burgh to charge interest on accounts after six months, having 
 existed for a long time and become uniform and notorious, 
 had thereby so far become a part of the law that the courts 
 were bound to notice it. So, too, in a later case, the same 
 court holds that the usage and practice of a firm, though not 
 good as a custom, will be binding, if expressly made a part 
 of the contract, or shown to have been known and assented to 
 by the person sought to be affected by it, at the time a trans- 
 action to which it was applicable was entered into, and that 
 evidence of such a contract, either direct, or by proving a 
 course of dealing between the parties on such terms, and of 
 such frequency as to justify the inference that the transaction 
 was on the accustomed terms, is admissible.^ In Massachu- 
 setts,^ in a case where a note was left with a bank in Boston 
 for collection, and the bank, conformably with the usage in 
 Boston, gave notice to the maker before the note became due 
 of the day when the note would be payable, and requested 
 him to call and pay it on that day, and the note remained in 
 the bank through banking hours on the day when it became 
 due, it was held that, if the maker was a trader, and accus- 
 tomed to transact business at the bank, his consent to the gen- 
 eral usage which made such notice sufficient might be shown, 
 and if shown, rendered any other notice immaterial, and the 
 Correctness of this doctrine cannot be questioned. The rule 
 is, as established, both upon principle and by authority, that 
 
 " Watts V. Hoch, 25 Penn. St. 411. ^ Hursh v. North, 40 Penn. St. 241. 
 
 ^ Cox V. Heisley, 19 Penn. St. 243 ; ^ Warren Bank v. Parker, 8 G-ray 
 
 Withenll v. Neilson, 20 Id. 448. (Mass.) 221. 
 
240 THE USAGES OE TKADE, THEIK OFFICE. 
 
 evidence of a usage, reasonable, uniform and certain, known to 
 the -parties to a contract in reference to the subject matter to 
 which it relates, enters into and forms a part of such contract, 
 whether in writing or by parol, unless expressly excluded, as 
 mucli as though it had been inserted therein/ and this too, 
 although its effect is to add incidents to the contract that the 
 law would not otherwise raise.^ There would seem to be no 
 good reason why a usage, that in the sales of certain kinds 
 of property there is a warranty as to quality, &c., should not 
 be good. Such a usage does not conflict with the law, but 
 simply raises an obligation where the law does not. Can it 
 be said that the doctrine of caveat emptor is so sacred that it 
 cannot be encroached upon, except by special contract ? We 
 apprehend not, as implied warranties are raised in multitudes 
 of instances, and it would seem that the policy of the law 
 is not trenched upon by admitting a usage to secure the same 
 result, and certainly this is permitted in some of the States. 
 In New Hampshire,® it was held that evidence of the usage 
 of a place was admissible to show that a substitute broker, 
 who furnished substitutes for parties, was understood as war- 
 ranting that the substitutes furnished by him were not deser- 
 ters, and from that a warranty would be implied. In an ear- 
 lier case in the same State, it was held that evidence of a 
 custom among manufacturers of iron castings to warrant the 
 quality of the articles made by them, without an express con- 
 
 * Inglebright v. Hammond, 19 Ohio Ohio 421 ; Van Ness v. Packard, 2 Pet. 
 
 337 ; Stultz v. Dickey, 5 Binn. (Penn.) (U. S.) 137 ; Foster v. Robinson, 6 Ohio 
 
 287; Hursh v. North, ante; Barber v. St. 90; Wilcox v. Wood, 9 Wend. (N. 
 
 Brace, 8 Conn. 9; Sampsons. Gazzam, Y.) 846 ; Alabama R. R. Co. v. Kidd, 
 
 6 Port. (Ala.) 123; Bank of Columbia, 29 Ala. 221; Leach v. Beardslee, 22 
 
 1 H( & G. (Md.) 239 ; United Slates v. Conn. 404 ; Cooper v. Kane, 19 Wend. 
 
 Arredondo, 6 Pet. (U. S.) 715; Haven (N. Y.) 886; Dixon v. Dunham, 14 
 
 V. TFeratoort/i, 2 N. H. 93. 111. 824; Shaw v. Mitchell, 2 Met. 
 
 ' Hursh V. North, ante ; Goodnow v. (Mass.) 65 ; Naylor v. Semmes, 4 G-. & 
 
 Parsons, 36 Vt. 46; Steward v. Scud- J. (Md.) 274; Loring v. Chtmey, 5 
 
 der, 24 N. J. L. 96; Munn v. Burch, Pick. (Mass.) 15; Thompson v. Ham- 
 
 28 111. 35 ; Perkins v. Jordan, 35 Me. ilton, 12 Id. 425. 
 23 ; Wayne v. Steamboat Gen. Pike, 16 « Lebanon v. Heath, 47 N. H. 453. 
 
THE USAGES OF TRADE, THEIR OFFICE. 241 
 
 tract to that effect, was admissible in an action founded on 
 such supposed warranty.'' The real difficulty about the es- 
 tablishment of a warranty by usage, is the fact that the prima 
 facie presumption that the parties contracted with reference 
 to the law rather than the usage, but if the usage and the 
 parties' knowledge of it is established, and there is no pro- 
 vision of the contract that excludes it, it is difficult to see how 
 the courts can exclude it and yet carry into effect the inten- 
 tion of the parties. In England, the rule is, that usage is 
 admissible to show that in the sale of certain articles there is 
 an implied warranty as to quality, or that the words used by 
 commercial usage indicate a certain quality. Thus, in a case* 
 where the plaintiff sold to the defendant " fifty tons best 
 palm oil, expected to arrive per the Chalco, at £40 10s. 
 per ton ; curt, dirty and inferior oil, if any, at a fair allow- 
 ance," and the oil, on arrival, contained only one-fifth best 
 oil, whereupon the defendant refused to accept it, it was held 
 in an action to recover the price of the oil, that evidence was 
 admissible to show that by mercantile usage, the contract was 
 satisfied if the oil delivered contained a substantial portion of 
 best oil, and that the question as to whether the usage existed 
 and was met in this case was for the jury. So, where a con- 
 tract was made,' by which the plaintiff sold the defendant, 
 " deliverable in London, ex Ion, from Savannah, 400 loads 
 of pitch-pine timber, the timber warranted of fair average 
 quality, to be taken of fair average of the cargo." Evidence 
 was given that pitch-pine timber is an article which comes 
 from several ports in Central America, and that pitch-pine 
 timber from Darien has more heart in it, being better butted 
 and having fewer holes in it than that from Savannah. It 
 was held that this evidence was admissible to explain the con- 
 tract and determine the quality of timber to be delivered 
 under it, and that from it the contract must be construed as 
 
 ' Sumner v. Tyson, 20 N. H. 384. » Jones v. Clark, 2 H. & R. 725. 
 
 » Lvcas V. Bristow, El., Bl. & El. 907. 
 
 15 
 
242 THE TTSAGES OF TEADE, THEIK OFFICE. 
 
 for timber of a fair average of Savannah pitch-pine.-"^ In 
 another English case,^ a contract was made at S., by a person 
 residing in London, to sell to a person residing in S., a cargo 
 of St. Giles Marias wheat, free on board, at a French port. 
 The grain was unknown at S., but is known elsewhere in the 
 trade to contain a mixture of barley. Upon the trial at Nisi 
 Prius, evidence of this usage as to the mixture of the grain 
 was rejected, because it was not shown that it was known at 
 S., but upon a motion for a new trial, it was held that if 
 the existence of the usage was proved, it was binding upon 
 both parties, whether in fact known at S. or not. 
 
 ^ See also, Gorrssen v. Perrin, 2 C. understood as containing two hun- 
 
 B. N. S. 29, where evidence of a dred pounds pressed in a particular 
 
 usage was admitted to show that on way. 
 
 a contract for the sale of bales of ^ Ryder v. Woodley, 10 W. E. 294, 
 
 gambler, expected to arrive by a Q. B. 
 particular ship, a bale of gambler is 
 
USAGES, THEIR OFFICE IN SPECIAL INSTANCES. 243 
 
 CHAPTEK Y. 
 
 USAGES, THEIR OFFICE IN SPECIAL INSTANCES. 
 
 106. AS TO AMOUNT OF PAYMENT— YEARS AS UN- 117. UNIVERSAL CUSTOM AND GENERAL LAW. 
 
 DEESTOOD IN THEATRICAL PROFESSION 118. DIRECT VARIANCE OF USAGE AND CON- 
 — IN RELATION TO A CHARTER PARTY. TRACT. 
 
 107. EFFECT OFUSAGEONLIABILITYOFCARRIER. 119. EVIDENCE OF USAGE REJECTED. 
 
 108. DISTINCTION BETWEEN VARYING CONTRACT 120. WORDS OP GENERAL IMPORT. 
 
 AND ADDING INCIDENT TO. 121. TERMS ADDED MUST BE INCIDENTAL. 
 
 109. USAGE ADDING INCIDENT. 122. CONTRACT FOR SERVICES. 
 
 110. WEIGHT OF USAGE. 123. PRINCIPAL AND AGENT. 
 
 111. SALES BY SAMPLE — CUSTOM IN TIMBER 124. CUSTOM QUALIFYING MEANING — UNDIS- 
 
 TRADE. CLOSED PRINCIPAL USAGE. 
 
 112. U^AGE AS TO MEASUREMENT. 125. UNDISCLOSED PRINCIPALS, AGENT'S LIABIL- 
 
 113. INTRODUCING BROKER-USAGE — CUSTOM ITY — AGENT'S LIABILITY MODIFIED — 
 
 UNREASONABLE. QUALIFICATION OF USAGE INTRODUCED. 
 
 114. AS TO VARYING CONTRACTS BY USAGE. 126. TACITLY IMPLIED INCIDENT. 
 
 115. ADDITION OF TERM BY USAGE. 127. REPUGNANCY THE TEST — VARYING DECI- 
 
 116. CONTRADICTION BY USAGE NOT ALLOWED SIGNS. 
 
 — INCONSISTENT PRINCIPLES — ADDITION 128. MODERN DICTUM. 
 
 OF TERM INADMISSIBLE. 129. DEFINITE RULE. 
 
 As to Amount of Payment— Years as Understood in Theatrical 
 Profession— In Relation to a Charter Party. 
 
 Sec. 106. Where there was a custom that the yearly 
 hiring of a clerk is determinable by a month's notice at any 
 time, it was held that such a custom was not inconsistent 
 with a provision in the agreement, that at the end of the year 
 the employer, if satisfied with the amount of business done, 
 would make an addition of £30 to the stipulated salary, (a) 
 Where the agreement in writing contained these words, " to 
 serve B. from 11th Nov., 1815, to 11th Nov. 1817," at cer- 
 tain wages, " to lose no time on our account, to do our work 
 well, and behave ourselves in every respect as good servants," 
 it was held that it was capable of explanation by usage in 
 the particular trade for servants, under similar contracts to 
 have certain holidays and Sundays to themselves. (5) And 
 in a somewhat similar case where the plaintiff had agreed in 
 
 (a) Parker v. Tbbetson, 4 C. B. N. S. (6) Reg. wStoke-upon-Trent, 5 Q. R. 
 
 346 ; 27 L. J. 0. P. 236. 303 ; see P/dllips v. Innes, 4 CI. & Fin. 
 
 234. 
 
244 USAGES, THEIR OFFICE IN SPECIAL INSTANCES. 
 
 writing to perform at the defendant's theatre, and the defend- 
 ant agreed to engage her for three years, and pay her a cer- 
 tain weekly salary, evidence was admitted to show that there 
 was a uniform usage in the theatrical profession, that pay- 
 ment was only to be made during the theatrical season, or 
 only during the time that the theatre was open to the public 
 in each of those three years, (c) Upon a charter party 
 engaging to pay £4 15s per ton for goods shipped at Bombay 
 for London, cotton to be calculated at 50 cubic feet per ton, 
 evidence tendered upon the part of the defendant that there 
 was a usage to pay according to the measurement taken at 
 Bombay before the goods are loaded was held admissible. 
 In this case, too, the plaintiff was allowed to show, in reply, 
 that his captain had objected to receive the goods at Bombay 
 measurement ; measured them when on board ; and deliv- 
 ered an account of that measurement to the shippers, [d) 
 
 Effect of Usage on Liability of Carrier. 
 
 Sec. 107. In an action against a carrier for negligence in 
 the method of storing or carrying freight, proof of a usage 
 or custom in that respect, in conformity with the method 
 adopted by the carrier, is admissible to repel any charge of 
 negligence or mismanagement in the absence of an express 
 contract as to the mode of carriage, and in such cases where 
 the contract is silent in that respect, a custom or commercial 
 usage sufficiently ancient and general as to warrant such a 
 presumption, enters into and forms a part of the contract, 
 and both parties are bound by it.-^ Thus, where a quantity 
 of gin, in hogsheads, was put on board the defendant's sloop 
 to be transported from Hartford to Boston at customary 
 
 (c) GrantY.Maddox,15'M..&W.737. Taunt. 272; Gould v. Oliver, 2 Scott, 
 
 (d) See also Benson v. Schneider, 7 (N. C.) 241. 
 
 '-Parr X.Anderson, 6 'East 202; Coit fendant cannot prove the practice 
 
 •v. Commercial Iiw. Co., 7 John. (N.Y.) on his own line, but may prove a 
 
 385; Cros62/v. i^ic/i, 12 Conn. 422. In general custom as to the number of 
 
 an action for damages caused by the passengers conveyed. Maury v. Tal- 
 
 upsetting of a stage-coach, the de- madge, 2 McLean (U. S.) 157. 
 
USAGES, THEIE OFFICE IN SPECIAL INSTAIfCES. 245 
 
 freight, dangers from the sea excepted. The gin was stored 
 on deck, and the weather being tempestuous was necessarily 
 cast overboard. The plaintiff insisted that the defendant 
 had no right to stow the gin upon deck, but should have put 
 it in the hold of the vessel, and having failed to do so, 
 although the jettison might have been justifiable, he was 
 liable by reason of his negligence in trusting the freight on 
 deck. The defendant proved that it was the usage of the 
 trade between Hartford and Boston to transport gin on the 
 vessel's deck, and the court held that such usage operated to 
 exculpate the defendant from the charge of negligence.^ But 
 
 ' Barber v. Brace, 3 Conn. 9. A 
 custom or usage, to be admissible 
 and valid, must be certain, reason- 
 able and sufficiently long continued 
 to afford a presumption that it is 
 generally known, or that the parties 
 in fact knew of it. V. S. v. Buchanan, 
 8 How. (U. S.) 83 ; Coxe v. Reisley, 20 
 Penn. St. 246. It must be general 
 and uniform, but need not be uni- 
 versally acquiesced in. Desha v. Hol- 
 land, 12 Ala. 513; see Maitland v. Ins, 
 Co., 3 Eich. (S. C.) 331. And it may 
 be established by the testimony of a 
 single witness, if his means of knowl- 
 edge are abundant, and his testi- 
 miony full and satisfactory. Vail v. 
 Bice, 5 N. Y. 156. The usage of a 
 class or trade is good evidence to 
 ground an argument of negligence 
 in one belonging to it. Sampson v. 
 Hand, 6 Whar. (Penn.) 311. Or to 
 repel fraud or negligence. Maxwell 
 V. Eason, 1 S. & P. (Ala.) 514; Cook 
 V. Champlain Trans. Co., 1 Den. (N. 
 Y.) 92; Bradford v. Drew, 5 Met. 
 (Mass.) 188; Chenowith v. Dickinson, 
 8 B. Mon. (Ky.) 156. And this is 
 probably the true ground of Barber 
 V. Brace, 3 Conn. 9. It may be stated 
 as a general rule, that evidence that 
 it is usual for people engaged in a 
 
 certain business to do a certain act, 
 which amounts to negligence, is 
 never admissible to excuse a person 
 from the consequences of such act. 
 In other words, the fact that negli- 
 gence in certain respects is habitual 
 in a certain business, does not ex- 
 . cuse it. Thus, in Miller v. Pendleton, 
 8 Gray (Mass.) 547, an action against 
 a ferryman for the loss of a horse 
 and wagon by his neglect to put up 
 the chain at the end of his boat, it 
 was held that he could not give in 
 evidence a custom at other ferries on 
 the same river to put up the chain 
 at the request of passengers, and not 
 otherwise. In Hill v. Portland, Sec, 
 R. R. Co., 55 Me. 438, the court held 
 that the fact that all the railroads in 
 the country had adopted a rule or 
 custom which is unreasonable and 
 dangei'ous, and productive of injury 
 to third persons, would not legalize 
 the act, and that the fact of its gen- 
 erality cannot in any degree excuse 
 an act done in conformity with it. 
 But while a usage cannot be admit- 
 ted to excuse a person from the con- 
 sequences of an act in fact negligent, 
 yet such evidence is admissible upon 
 the question as to whether or not the 
 act is negligent, and the fact that it 
 
246 USAGES, THEIR OFFICE IN SPECIAI. INSTANCES. 
 
 while proof of a partial usage may be sufficient to shield a 
 party from liability for negligence, because it has the effect 
 
 is generally adopted in a certain busi- 
 ness, is a strong circumstance against 
 the claim of negligence, because it 
 shows what men of ordinary pru- 
 dence do under similar circum- 
 stances. In Myers v. Perry, 1 La. 
 An. 372, it was held that in the ab- 
 sence of any statutory regulation, 
 an established usage among those 
 engaged in navigating the Missis- 
 sippi river with steamers must be 
 considered in determining questions 
 of fault or negligence in the man- 
 agement of steamers on that river. 
 Indeed, such a usage may become a 
 law of the business. Thus, in Brew 
 V. Chesapeake, 2 Dougl. (Mich.) 33, it 
 was held that a general custom of 
 navigation, as, for vessels in passing 
 to keep to the right, may be proved 
 by the testimony of persons skilled 
 in navigation ; and if satisfactorily 
 proved, such custom is a part of the 
 law of the land, and a departure from 
 it, occasioning collision, will render 
 the party liable, unless the other 
 party, by reasonable effort, might 
 have prevented it. In Bolton v. Cal- 
 der, 1 Watts (Penn.) 360, in an action 
 for an injury by the collision of car- 
 riages passing in the same direction 
 upon a highway, it was held that 
 the defendant could not justify a 
 forcible driving against the plain- 
 tiff's carriage by showing a custom 
 for the leading carriage to incline to 
 the right, and that the plaintiff did 
 not conform to the custom. The 
 reason why such a custom cannot 
 operate as a justification, is, because 
 the law requires persons traveling 
 along the highway to pass without 
 collision, i/ |)oss46te, and no custom 
 which authorizes a person by negli- 
 
 gence or violence to injure another 
 can have any validity. It is unrea- 
 sonable, and, therefore, invalid. If 
 a barge or other vessel was improp- 
 erly loaded, the owners will not be 
 discharged from liability for dam- 
 ages to the freight, because she was 
 loaded as barges usually are, but 
 such evidence is competent to show 
 that for the safety of transportation, 
 such method of loading was a proper 
 and safe mode of stowing the load, 
 and the force of the evidence must 
 be overcome by proof that the 
 method of loading was unsafe and 
 improper ; but it is, nevertheless, a 
 question for the jury, whether the 
 method of loading was safe or not. 
 Stepens Co. v. Tuckerman, 33 N. J. L. 
 543. In Cayzer v. Taylor, 10 Gray 
 (Mass.) 274, in an action against the 
 owner of a steam-boiler for damages 
 caused by its explosion, it was held 
 that evidence was not admissible by 
 the defendant to show that it was 
 not customary to use the fusible 
 safety plug which the statute re- 
 quired to be used. Nor to avoid the 
 consequences of a negligent act, and 
 as tending to disprove negligence on 
 his part, is it competent to prove that 
 the defendant is habitually careful 
 and cautious. Tenney v. Tuttle, 1 Allen 
 (Mass.) 185, but, when an attempt is 
 made to prove that a person, through 
 whose alleged negligence, an injury 
 has occurred, it is competent to prove 
 that he is careful, prudent, cautious, 
 &c., and this may be proved by per- 
 sons who have seen his conduct in 
 discharging similar duties, and need 
 not be proved by experts. Oehagan 
 V. Boston and Lowell R. R. Co., 1 Al- 
 len (Mass.) 187. If the station house 
 
USAGES, THEIK OFFICE IN SPECIAL INSTANCES. 247 
 
 of showing that he did what prudent men often do under 
 the same circumstances, yet nothing short of a well estab- 
 lished general usage will be permitted to control in actions 
 upon a contract. A general usage, unless excluded in 
 express terms, or by fair inference is presumed to enter into 
 and form a part of all contracts to which they relate, such 
 as the usages of carriers, insurers, &o., but a partial usage 
 cannot be said to enter into the contract, and evidence thereof, 
 instead of showing what the actual intention of the parties 
 was, operates to interpose a new contract for that already 
 made.^ In the case first cited in the last note, it was shown 
 that the usual route from New York to Norwich, Conn., was 
 through Long Island Sound, and that in an action for the 
 loss of freight by reason of perils of the sea while pursuing 
 another and more dangerous route, it was not competent for 
 the defendant to show a usage for such vessels when the same 
 is obstructed by ice, to perform their voyages on the south 
 side of Long Island instead of waiting in New York until 
 
 of a railroad company is separated consignee or his agent, is a bad 
 
 by a side track from a platform pro- usage, and inadmissible as a defence 
 
 vided for passing to the trains, and to an action against the consignee 
 
 there are no regulations or direc- for loss of the goods through his 
 
 tions as to when or how passengers negligence. Reed v. Richardson, 98 
 
 shall pass to them, the question Mass. 216. 
 
 whether a passenger is bound to ^ Crosby v. Fitch,12 Conn AlO. Tioot 
 wait in the station house until the of a few instances, not amounting to 
 arrival of a train at the platform, or a general practice, cannot beheld to 
 inay go to and stand on the platform establish an usage. Uniformity is an 
 during its approach, depends on essential requisite. Martin v. Bel. Ins. 
 what is a reasonably safe and pru- Co., 2 Wash. (U. S. C. C.) 254; Law- 
 dent course for him to adopt ; in de- rence v. Stonington Bank, 6 Conn. 521 ; 
 termining which it is proper for a Qahay v. Lloyd, 3 B. & C. 793 ; Gibson 
 jury to consider what is the usage of v. Culver, 17 Wend. (N. Y.) 305. The 
 passengers there, and whether such usage of a particular port, for con- 
 usage is known to and permitted by signees, during the quarantine sca- 
 the company. Caswell v. Boston and son, to receive shipments at the 
 Worcester R. R. Co., 98 Mass. 194. A quarantine grounds, as a compli- 
 usage of a port that, in order to con- ance with the engagement of the 
 stitute a delivery of goods by a car- bill of lading, to deliver at such port, 
 rier by water, a receipt for them is valid and binding. Bradstreet v. 
 must be given to the carrier by the Heron, 1 Ab. (U. &.) 209. 
 
248 USAGES, THEIR OFFICE IjST SPECIAL INSTANCES. 
 
 the usual navigation is free, unless such usage is shown to be 
 general and of such long standing as to have become gen- 
 erally known. 
 
 Distinction Between Varying Contract and Adding Incident to. 
 Sec. 108. A few other cases will show under what circum- 
 stances evidence of this nature has been admitted, and the 
 line between " varying " and " adding an incident," is so 
 very fine and so difficult to discover, that the more cases 
 which can be accumulated with reference to this question of 
 admissibility the easier will it be for the practitioner to decide 
 in any case whether a custom is admissible in evidence or 
 not. We shall find that the courts have not been quite con- 
 sistent as to this matter, and although we ought always to 
 weigh and not count our authorities, still, the majority in 
 such cases must rule, and it is important to ascertain what 
 the real intention of the majority of the judges has been.* 
 
 *The statement in the text may 
 be well illustrated by reference to 
 the cases covering the effect of 
 usages upon contracts of insurance. 
 Thus, evidence of a local usage 
 among insurers vphioh is not com- 
 municated to the assured, or which 
 is not so notorious as to warrant a 
 presumption that he knew of it, is 
 not admissible to affect the insurer's 
 liability to the assured. Hartford 
 Ins. Co. V. Harmer, 2 Ohio St. 452. 
 But evidence of a local usage is 
 binding upon the insurer, because 
 he is presumed to be familiar with 
 all the usages incident to a risk, 
 which he assumes, as of the exist- 
 ence of a custom exempting the 
 assured from providing a branch 
 pilot in a certain coasting trade in 
 which a vessel insured is employed. 
 Cox V. Charleston &c. Ins. Co., 3 
 Rich. (S. C.) 331. In an action on 
 a policy where the claim was for 
 damages sustained by perils of the 
 
 sea, and on the arrival of goods at 
 New York, they were landed before 
 the wardens of the port had held a 
 survey upon them, the defendants 
 were not permitted to prove, either 
 as an objection to the preliminary 
 proofs, or in bar of the action, that, 
 by the usage of trade in the port of 
 New York, the master of the vessel 
 is responsible for damages sustained 
 by goods delivered by him to the 
 owner or consignee, unless there 
 has been an actual survey on board 
 the vessel, by the port wardens, by 
 which it shall have been found that 
 the goods were properly stowed, and 
 were damaged on the voyage by 
 perils of the sea ; and that, by a sim- 
 ilar usage, as between assurers and 
 assured, the survey so made must 
 be produced, in order to charge the 
 assurer, and that the preliminary 
 proof is deemed insufficient, unless 
 the survey is exhibited as a part of 
 it. Ranhin v. American Ins. Co., 1 
 
USAGES, THEIK OFFICE Ilf SPECIAL INSTANCES. 249 
 
 Usage Adding Incident. 
 
 Sec. 109. There is uow no doubt that a usage is admissi- 
 ble to add an incident which is not inconsistent with the 
 
 Hall (N. Y.) 619. A usage of short 
 continuance is entitled to little if any 
 weight in the explanation of an in- 
 surance contract. Wall v. East River 
 Ins. Co., 3 Duer (N. Y.) 264. The 
 rule being that to affect the liability 
 of the parties it must be of such a 
 character that the parties must be 
 presumed to have known of its 
 existence. Rogers v. Mechanics' Ins. 
 Co., 1 Story (U. S.) 603. So, too, it 
 must be reasonable, and it has been 
 held that evidence is not admissible 
 of a custom that when insurance is 
 made on goods with a particular 
 mark, those goods, so marked, must 
 be on board, in order to charge the 
 underwriter with the loss. Ruan v. 
 Gardner, 1 Wash. (Va.) 145. It is 
 held that a usage may be shown for 
 the purpose of explaining a clause of 
 doubtful construction in a policy of 
 insurance, it being, in such cases, 
 the safest guide to the intention of 
 the parties. But it can be resorted 
 to only when the language or the 
 law is doubtful or unsettled. Win- 
 throp V. Union Ins. Co., 2 Wash. 7 ; 
 S. P. Harris v. Nicholas, 5 Munf. ( Va.) 
 483 ; United States v. Macdaniel, 7 Pet. 
 1 ; Murray v. Hatch, 6 Mass. 477 ; Coit 
 V. Commercial Ins. Co., 7 Johns. (N. 
 Y.) 385 ; Allegre v. Maryland Ins. Co., 
 2 Gill & J. (Md.) 136; Rankin v. 
 Am£rican Ins. Co., 1 Hall (N. Y.) 619. 
 Parol evidence of a custom cannot 
 be received to show that a marine 
 policy of insurance on goods shipped 
 from New Orleans to Mobile, the 
 language of which is plain and un- 
 ambiguous, covers the overland 
 transportation of the goods by rail- 
 road, because such a custom is ex- 
 
 cluded by the terms of the policy. 
 Smith V. Mobile Navigation &c. Co., 
 30 Ala. 167. Nor where, by the 
 express terms of a policy, an insur- 
 ance company is bound to pay the 
 ascertained amount of loss sustained 
 by the assured, " without any deduc- 
 tion therefrom," can the company 
 set up a custom or usage on their 
 part to retain, in case of total loss, 
 out of the amount of the ascertained 
 loss, two per cent, per month on the 
 balance of the premium note, from 
 the date of the last assessment there- 
 on, until the expiration of the policy, 
 as the effect of allowing proof of 
 such custom would be to permit a 
 usage to vary and limit the plain 
 and unequivocal terms of an express 
 written contract. Swanscot Machine 
 Co. V. Partridge, 25 N. H. 369. Nor 
 where a policy of re-insurance pro- 
 vides for an indemnity to the re- 
 insured, and its terms are not 
 ambiguous, can evidence of a local 
 custom among insurers to pay only 
 such a proportion of the loss as the 
 amount of re-insurance bears to the 
 original policy be received to control 
 the contract, or reduce the amount 
 of a recovery thereon. Mutual 
 Safety Ins. Co. v. Hone, 2 N. Y. 235. 
 A policy of insurance against fire, 
 upon a vessel building in the port of 
 Baltimore, and for a specified period, 
 is not controlled in its operation by 
 proof of usage in other parts of 
 the Union ; such usage not being 
 considered as entering into the views 
 of the parties in the contract. Mason 
 V. Franklin Fire Ins. Co., 12 Gill. & J. 
 (Md.) 468. Under a policy on cop- 
 per on board a vessel from New 
 
250 USAaES, THEIE OFFICE IN SPECIAL INSTANCES. 
 
 writing, or that a usage cannot control the clear intention of 
 the parties; but it is most difficult in many cases to say 
 
 York to Taunton, a quantity of 
 copper in pigs was laden on deck, 
 and was lost in Long Island Sound. 
 It was held that the insurers were 
 not liable for the loss, notwithstand- 
 ing the existence of a usage to carry 
 on deck without notice to the ship- 
 per, and at the same rate of freight 
 as if under deck, such goods as were 
 not liable to be injured by dampness, 
 it not being proved that insurers had 
 ever paid for losses upon goods so 
 laden, unless under a special con- 
 tract, or unless, from the nature of 
 the property, they were presumed 
 to have assumed the particular risk. 
 Taunton Copper Co. v. Merchants' Ins. 
 Co., 22 Pick. (Mass.) 108. A general 
 usage for the same species of vessels, 
 in various kinds of navigation, and 
 in different seasons of the year, to 
 carry deck-loads, was held to be 
 competent evidence, in~connection 
 with the opinion of nautical wit- 
 nesses, to show that, in fact, the risk 
 was not increased by carrying cotton 
 on deck. Lapham v. Atlantic Ins. 
 Co., 24 Pick. (Mass.) 1. In an action 
 on a policy of insurance, which had 
 been filled up and signed, but not 
 delivered, and on which no premium 
 had been paid, evidence of usage 
 that such policies are considered as 
 held for the benefit of the insured, is 
 admissible. Baxter v. Massasoit Ins. 
 Co., 13 Allen (Mass.) 320. A com- 
 mercial usage of long standing, such 
 as that of adding the premiums to 
 the invoice value, in cas,es of insur- 
 ance, may be modified and con- 
 trolled by a local usage, well 
 sustained by proof, and shown by 
 positive testimony or by circum- 
 stances to be known to the other 
 
 party. Merchants' Mutual Ins. Co. v. 
 Wilson, 2 Md. 217. So, also, evidence 
 is admissible to establish the fact of 
 a recognized insurable interest upon 
 their part in the goods. Thus in 
 an action on a policy of insurance, 
 that it is the usage of commission 
 merchants in New York to effect 
 insurance on goods consigned to 
 them for sale, without any express or- 
 ders from their consignors. De Forest 
 V. Fulton Fire Ins. Co., 1 Hall (N. Y.) 
 84. While evidence of usage is inad- 
 missible to vary the application of 
 plain terms in a policy of insurance 
 where there is no ambiguity, or to 
 add terms, conditions or limitations 
 which the terms used clearly ex- 
 clude — Rankin v. Am. Ins. Co., 1 
 Hall (N. Y.) 619— yet it is admissible 
 to explain words or clauses of doubt- 
 ful import — Daniels v. Hudson River 
 Ins. Co., 12 Cush. (Mass.) 416— and 
 they may be rendered doubtful by 
 the introduction of extrinsic evi- 
 dence. The rule may be said to be 
 that if loords or phrases have, by usage, 
 acquired a technical meaning variant 
 from that in which they are ordinarily 
 used, the meaning which they have 
 acquired by usage may be shown, unless 
 from the whole instrument it is evident 
 they tuere used in their ordinary sense. 
 Wood's Fire Insurance 129 ; Alkgre 
 V. Maryland F. Ins. Co., 2 G. & J. 
 (Md.) 136 ; Mobile &c. Ins. Co. v. 
 McMillen, 27 Ala. 77 ; Bargett v. 
 Orient ct-c. Ins. Co., 3 Bos. (N. Y.) 
 385; Winthrop v. Union Ins. Co., 2 
 Wash. (Va.) 7; Harris v. Nicholas, 5 
 Munf. (Va.) 483; Murray v. Hatch, 
 6 Mass. 477 ; Coit v. Commercial Ins. 
 Co., 7 Johns. (N. Y.) 385; U. S. v. 
 McDaniel,7 Pet. (U. S.) 1; Merchants' 
 
USAGES, THEIK OFFICE m SPECIAL INSTANCES. 251 
 
 whether some particular custom is tacitly included in or 
 tacitly excluded from a written document. This, of course. 
 
 &c. Ins. Co. V. Wilson, 2 Md. 217; 
 Lapham v. Atlantic Ins. Co., 24 Pick. 
 (Mass.) 1 ; Smith v. Mobile &c. Co., 80 
 Ala. 167. A contract of insurance 
 may be created by usage. Thus, 
 where apphcation was made for 
 insurance for not less than $10,000, 
 and the defendant marked "bind- 
 ing" thereon, it was held that in 
 order to establish a contract between 
 the parties, evidence was admissible 
 to show that a custom existed be- 
 tween the plaintiff and several other 
 insurance companies, including the 
 defendant company ; in cases where 
 the value of the property upon 
 which insurance was desired was 
 unknown when application was 
 made, by which applications were 
 made like the one in question, to 
 the numerous companies, for insur- 
 ance in sums amounting in the 
 aggregate to what the plaintiff sup- 
 posed might be the actual value of 
 the property at risk, and that such 
 applications were accepted and 
 made binding for such indefinite 
 sums, with the understanding that 
 when the value of the property at 
 risk should be ascertained the 
 amount so insured by the compa- 
 nies should be declared and appor- 
 tioned so that the amounts actually 
 insured should bear the same pro- 
 portion to the property actually at 
 risk as they bore to the aggregate 
 of all the indefinite insurance 
 thereon, and that ^fter the amount 
 so ascertained had been fixed, a pol- 
 icj' in the form then in use should 
 be issued therefor — was held admis- 
 sible, and also that it created a 
 liability on the part of the defendant 
 for a proportionate amount of the 
 
 loss to the amount insured, notwith- 
 standing a clause contained in the 
 policies used by the defendant to- 
 the effect that if the assured made 
 any other insurance upon the prop- 
 erty prior in date to the policy, the 
 defendant should only be liable for 
 so much as the amount of prior 
 insurance might be deficient towards 
 covering the loss. Fabbri v. Mercan- 
 tile &c. Ins. Co., 6 Lans. (N. Y.) 446. 
 See also Audubon v. Excelsior Jns. 
 Co., 27 N. Y. 216. If it be shown, or 
 may be fairly presumed, that the 
 parties to a policy contracted in 
 reference to a custom existing in the 
 city where they did business, and 
 where the policy was effected, the 
 general law must give way to the 
 custom. In case of partial loss on 
 insured goods, a custom regulating- 
 the assessment of damages must be 
 general, known and acted upon in 
 the port, town or city where the 
 policy is effected, and there is no- 
 necessity for its extending over the 
 whole State. The custom in the city 
 of Mobile to pay the difference 
 between the sales price of the 
 injured article and the price stipu- 
 lated in the policy of insurance is- 
 binding between parties residing and 
 contracting in that city. Fulton- 
 Insurance Co. V. Milner, 23 Ala. 420. 
 In Parsons v. Manufacturers' Ins. Co., 
 16 Gray (Mass.) 463, in an action 
 upon a marine policy upon a vessel 
 laden with guano at the Chinca 
 Islands, it appeared that having- 
 stopped at Callao for a clearance, 
 and then started on her homeward 
 voyage, she sprung a leak and put 
 back to Callao in distress, when it 
 was found that a part of the guano 
 
252 USAGES, THEIK OFFICE IN SPECIAL INSTANCES. 
 
 is a purely legal question. "We take it," said the court in 
 a case already referred to, " that the acknowledged distinc- 
 tion is this : If the evidence offered at the trial by either 
 party is evidence by law admissible, for the determination 
 of the question before the jury, the judge is bound to lay it 
 before them and to call upon them to decide upon the effect 
 of such evidence when offered, whether that evidence is of 
 that character and description which makes it admissible is 
 a question for the determination of the judge alone, and is 
 
 had been so damaged by sea water 
 that it was utterly worthless and 
 could not be kept on board with 
 safety to the vessel, and if it could 
 have been landed the cost of drying 
 it would have been greater than its 
 value when dried, and it was thrown 
 overboard. The rest of the cargo 
 was necessarily discharged in order 
 to repair the vessel, a freight paid 
 thereon and it was transhipped by 
 its owner into another vessel bound 
 for a different port, and tlie vessel 
 after being repaired, and by consent 
 of its charterers, went back to the 
 islands and took in another cargo of 
 guano under the original charter, 
 which she delivered safely at its 
 port of destination. It was held that 
 evidence that the course thus taken 
 was the usual and prudent course 
 for vessels in sucli a. situation, and 
 the testimony of an insurance 
 broker, that in the adjustment of 
 losses, under these circumstances, 
 the usage had been to treat the 
 usage as one and the same, and 
 the substituted cargo as if it were 
 the original cargo landed and re- 
 shipped, and that before the date of 
 the policy on tlie freight of this 
 vessel, he had adjusted losses in one 
 case, and he thought in others ac- 
 cordingly, were insuflicient to prove 
 
 a custom which would affect the 
 rights of the parties ; and that going 
 back to the islands and taking in a 
 cargo after the repairs of the vessel, 
 must be treated as a neiv voyage and 
 not a resumption of the old one. A 
 custom that underwriters are not, 
 under the ordinary form of policy, 
 liable for general average respecting 
 the jettison of goods stowed on deck, 
 is valid, and is generally recognized. 
 Miller v. Tetherington, 6 H. & K. 278 ; 
 Taunton Copper Co. v. Merchants' Ins. 
 Co., 22 Pick. (Mass.) 108. But it is 
 competent for tlie assured to show a 
 usage for the same species of vessels 
 in various kinds of navigation, and 
 in different seasons of the year to 
 carry deck loads, especially if the 
 usage is supplemented by the testi- 
 mony of nautical men, that in fact 
 the risk is not thereby enhanced. 
 Lapham v. Atlas Ins. Co., ante. So 
 it is competent to show a usage to 
 carry certain kinds of property on 
 deck, and insurers, unless expressly 
 excepting against it, are liable for a 
 loss although such goods are so 
 stowed, because they are presumed 
 to be familiar with and to contract 
 in reference to this usage. Taunton 
 Copper Co. v. Mechanics' Lis. Co., 
 ante. 
 
USAGES, THEIE, OFFICE IN SPECIAL INSTANCES. 253 
 
 left solely to his decision." (e) Hence the importance of the 
 following cases to members of the legal profession. In the 
 case of Mackenzie v. Dunlop,{f) it was decided that if A. 
 gives an iron scrip order to B. and B. sells it to a third party, 
 that third party may prove that the document has in the 
 usage of trade an import not expressed on the face of it. 
 Here, then, we have the general principle laid down in the 
 House of Lords. In Lockett v. Nichlin,{g) where it ap- 
 peared that the defendant ordered goods by letter which did 
 not mention any time for payment, and the plaintiff sent the 
 goods and the invoice, parol evidence to show that the goods 
 were supplied on credit, the letter not being a valid contract 
 within the Statute of Frauds, was held to be admissible. So 
 where the plaintiff contracted in writing to build for the 
 defendant the front and back walls of a house, " for the sum 
 of 3s per superficial yard of work nine inches thick, and 
 finding all materials, deducting for lights." The lower part 
 of the walls, to the height of eleven feet, was of stone two 
 feet thick, the remainder of brick fourteen inches thick. In 
 this case it was held that evidence of the usage of builders 
 at the place to reduce brick work for the purpose of measure- 
 ment to nine inches, but not to reduce stone work unless 
 exceeding two feet in thickness, was admissible, and that the 
 proper construction of the contract was that it provided only 
 for the price of the brick work, leaving the stone to be paid 
 for on a quantum meruit.{h) 
 
 Weight of Usage. 
 
 Sec. 110. These principles are also shown in the case of 
 Fawkes v. Lamb,{i) which is interesting as showing the 
 
 (e) Lewis v. Marshall, 7 M. & G. 729 ; meiit in Neilson v. Harford, 8 M. & W. 
 
 see Parker v. Ibbetson, 4 C. B. N. S. 806. 
 
 346. When the jury have decided (/) 3 Macq.H.of L.Cas.22; 2Jur. 
 
 on the meaning of the terms by the N. S. 957; see also Fox v. Parker, 44 
 
 assistance of the usage, it is still for Barb. (N. Y.) 541. 
 
 the court to construe the entire (g) 2 Exch. 93. 
 
 contract or document. Hutchinson {h) Symonds v.Lloyd,&C.Ji.^.S.G91. 
 
 V. Bowker, 5 M. & W. 5, 35, the judg- (i) 31 L, J. Ex. 168 ; 8 Jur. N. S. 385. 
 
254 USAGES, THEIK OFFICE IN SPECIAL INSTANCES. 
 
 greater weight of evidence of usage than that of any other 
 apecies of parol evidence. There a written contract for the 
 sale of goods was silent as to the time for which warehouse 
 room rent was allowed by the seller to the purchaser, and it 
 was held that it was competent to either party to show by 
 parol evidence what time is allowed in such transactions by 
 general custom, but that it was not competent to prove that 
 the parties themselves agreed by word of mouth that certain 
 time should be allowed. 
 
 Sales by Sample— Custom in Timber Trade. 
 
 Sec. 111. In an action for the price of tobacco sold, evi- 
 dence is admissible to show that by the established usage of 
 the tobacco trade all sales are by sample, although the bought 
 and sold notes said nothing to that effect. (^) In another 
 case, proof that by a custom of trade when timber is sold in 
 bond at a, sale by auction in London the buyer contracts to 
 buy at a price including the duty payable, and he may, by 
 giving notice on the following day so to do, elect to take the 
 timber in bond, and if he does so he is then only bound to 
 pay the price less the duty, was admitted under the follow- 
 ing circumstances : On the 10th February, 1860, the 
 defendant bought timber in bond at a sale by auction, at a 
 price including the duty; the contract to be completed within 
 fourteen days, and the Chancellor of the Exchequer, on the 
 evening of that day, gave notice that a resolution would be 
 moved in Parliament to reduce the duty on timber, and car- 
 ried out that resolution on the 8th March. An act of Par- 
 liament passed to that effect on the 5th May, and the 
 reduction of the duty was thereby made to date from the 8th 
 March. On the 11th February the defendant gave notice to 
 the seller that he elected to take the timber in bond, and on 
 the 24th February offered the price less the then duty, which 
 the seller refused to take, and he also refused to give a 
 delivery order for the timber. Pie subsequently brought an 
 
 (k) Syres v. Jones, 2 Exch. 111. 
 
USAGES, THEIK OFFICE IN SPECIAL INSTAPTCES. 255 
 
 action for the price of the timber, in which judgment was 
 given for the defendant on the ground that the usage which 
 was admitted added a term to the contract. (Z) 
 
 Usage as to Measurement. 
 
 Sec. 112. In Bottomleyy. Forbes,{m) which was an action 
 upon a charter party for freight upon goods shipped at Bom- 
 bay for London, stating that cotton was to be " calculated at 
 five cubic feet per ton," a usage was held admissible to prove 
 that the measurement was to be calculated when the cotton 
 was taken from a screw at Bombay, though it appeared that 
 it afterwards expanded considerably before it was put on 
 board, and that it would have given a third measurement 
 after it had been unloaded. In that case it was also shown 
 on the part of the plaintiff that the captain of the vessel 
 refused to receive the cotton according to the admeasurement 
 it had after it left the screw ; that he measured it when on 
 board, and delivered an account of such admeasurement to 
 the shippers. Here we find that not only was usage admit- 
 ted to add an incident to a written instrument which was 
 silent as to where the measurement was to be calculated, and 
 which, to be full and explicit, ought, under the circum- 
 stances, to have given some indication as to the intention of 
 the parties, but evidence that the captain had at the time 
 refused to be bound by such usage, and had taken such 
 steps as lay in his power to defeat the efficacy of the usage, 
 were both properly admitted — the one on the one side, and 
 the other on the other.® 
 
 Introducing Broker-Usage— Custom Unreasonable. 
 
 Sec. 113. Where the defendant, a ship owner, being 
 desirous of chartering a vessel, and the defendant, a ship 
 broker, introduced him to S., another broker, who intro- 
 
 [l) Clark V. Smallfield, 4 L. T. N. S. (m) 6 Scott, 816; 5 Bing. (N. C.) 
 
 405. 121. 
 
 ^ See Sec. 95, ante. 
 
256 USAGES, THEIR OFFICE IN SPECIAL INSTANCES. 
 
 duced him to L., who made known to B. that the charter 
 was wanted, and through the negotiations of B. with the 
 defendant D., chartered the vessel. The plaintiff sued for 
 commission, alleging that the " introducing broker " was 
 entitled by custom to a share of the commission. The 
 plaintiff's counsel in this case proposed to ask a witness 
 the question, " What is the custom with regard to payment 
 of broker's commission where a broker introduces another 
 broker to a ship owner, who subsequently negotiates with 
 the broker introduced ?" and this evidence was rejected, the 
 court held it was properly ao.{n) Bramwell, B., in consid- 
 ering the question of the propriety of the rejection of the 
 evidence, said he thought it was properly rejected, " because 
 the custom, if proved, would be unreasonable, and secondly, 
 because it would not apply to the case." In another case, 
 where the question of the rights of " introducing brokers " 
 was discussed, a custom among ship brokers, that the " intro- 
 ducing broker " should receive commission on every renewal 
 of a charter originally effected through him was received, and 
 held to be admissible, (o) 
 
 As to Varying Contracts by Usag-e. 
 
 Sec. 114. We have now to note some of those cases in which 
 evidence of usage has been held to be admissible on the 
 ground that it varied the document to the interpretation of 
 which it was to be applied.^ " In a certain sense," as Lord 
 
 (n) Gibson v. Crick, 1 H. & C. 42. 31 L. J. Exch. 307 ; see also Ourrie v. 
 
 (o) Allan V. Sundius, 1 H. & C. 123 ; Smith, 4 N. Y. Leg. Obs. 343. 
 
 * The rule that usage is not admis- ants furnished the boats and de- 
 
 sible to vary the terms of a contract, manded the coal. Upon the trial 
 
 is well illustrated in Read v. Del. <k the defendant attempted to excuse 
 
 Hud. Canal Co., 3 Lans. (N. Y.) 213. his non-performance by showing 
 
 In that case the defendants sold the that according to usage the time 
 
 plaintiffs a quantity of coal and from which the detention was to be 
 
 agreed to deliver it in October, upon reckoned was the time when the 
 
 boats to be provided by the defend- boats were at their loading places in 
 
 ants, but failed to deliver it until late their order, and not from the time 
 
 in November, although the defend- of their arrival in the port. The 
 
USAGES, THEIR OFFICE IN SPECIAL INSTANCES. 257 
 
 Campbell well remarked, " every material incident which is 
 added to a written contract varies it, makes it different from 
 what it appeared to be, and so far it is inconsistent with it. 
 If by the side of the written contract without you write the 
 same contract with the added incident, the two would seem 
 to import different obligations and be different contracts." (p) 
 And in another case, Mr. Justice Blackburn truly remarked : 
 " You do not need the evidence of custom unless it varies 
 the contract, and makes it so far inconsistent with and differ- 
 ent from that which it would be without the evidence of the 
 custom." (§') Where a certain custom exists in a certain 
 trade or business as to the case of a certain kind of property 
 under certain circumstances, a person purchasing it under a 
 warranty, which, if kept, would not require such care, is 
 nevertheless, if he retains the property, bound to conform to 
 the custom, and can recover the expenses thereof in an action 
 upon the warranty, but df he fails to do so, whereby the 
 property is seriously damaged, or totally destroyed, the loss 
 is his. Thus, in a . Connecticut case,'^ the plaintiff sold the 
 
 court held that the usage could not The agreement must control, and, 
 
 avail, because the contract was where an express contract is made 
 
 specific — to deliver the coal within the parties must be held to its terms 
 
 a specified time. "I think," said strictly, and no excuse is generally 
 
 Miller, P. J., "this cannot be done available for delay, even if it be 
 
 where there is a specific agreement without the fault of the party, which 
 
 to deliver the coal within a specified is not stipulated in the contract." 
 
 time, and the plaintiff's were ready ' Hitchcock v. Hunt, 28 Conn. 343. 
 to perform at the time named. * * 
 
 [p) Humjrey v. Dale, 7 E. & B. 266. is local or pertains to a particular 
 Evidence is admissible to give eff'ect trade, the presumption that the par- 
 te a contract by carrying out the ties knew of and contracted in refer- 
 presumed intention of the parties, ence to it, may be rebutted. Walh v. 
 Margivm v. Farrington, 1 Daly (N. Y. Bailey, 49 N. Y. 464 ; Johnson v. De 
 C. P.) 236; Heartshorne v. Union L. Peyster, 50 Id. 50&; Farmers', &c. Bank 
 Ins. Co., 36 N. Y. 172 ; Bissell v. Camp- v. Sprague. 52 Id. 605 ; Duguid v. Ed- 
 bell, 54 Id. 353; Fox v. Parker, 44 wards, 52 Barb. (N. Y.) 217; Sipperly 
 Barb. (N. Y.) 441; DaUon v. Daniels, v. Stewart, 50 Id.&2; Halfordy. Adams, 
 
 2 Hilt. (N. Y.) 472 ; Casper v. Kane, 19 2 Duer (N. Y.) 471. 
 
 Wend. (N. Y.) 386; Staunton v. Small, {q) Myers v. Sari, 3 L. J. Q. B. 9, at 
 
 3 Sandf. (N. Y.) 230. But if the usage p. 15. 
 
 16 
 
258 USAGES, THEIE OFFICE IN SPECIAL INSTANCES. 
 
 defendant a quantity of salt pork put up in barrels, with a 
 warranty that the barrels would not leak. The plaintijff 
 stored the pork in a suitable place, but found afterwards that 
 some of the barrels were leaking. He gave no notice to the 
 plaintiff that the barrels were leaking, but from time to time 
 filled the barrels up with new brine, It was shown upon 
 the trial that it was the established practice among persons 
 dealing in pork, when barrels continued to leak after putting 
 in new brine, to take out the pork and repack it in new 
 brine. It did not appear whether the defendant knew of 
 this practice or whether he knew of the necessity for this 
 course, but it did appear that, upon reasonable inquiry, he 
 could have ascertained it, and, therefore, that it should be 
 presumed that he knew of it, and consequently that the only 
 deduction to which he was entitled from the price of the 
 pork, was what he would have been compelled to pay for 
 new barrels in place of those which leaked and for the 
 expense of repacking them . 
 
 Addition of Term by Usage. 
 
 Sec. 115. It may be added that truly every incident which 
 is sought to be attached by proof of usage is a material inci- 
 dent, and that in fact it is really the addition of a term to 
 the contract as it existed in ink. Yet the law has gone on 
 laying down the dictum that any usage which would have 
 the effect of varying or contradicting either expressly or by 
 implication the terms of a written contract is inadmissible as 
 evidence, (r) The difficulty of understanding how a usage 
 which adds an incident to a written contract is to do so with- 
 out varying it or without contradicting it to the extent that 
 the assertion of something concerning which it is silent is a 
 contradiction, is to our minds very great. That it has been 
 the means of throwing an element of uncertainty into the 
 minds of many judges will appear from the nature of some 
 of the decisions which we have noted above, and from those 
 
 (r) Menzies v. Lightfoot, 40 L. J. Chan. 561 ; 11 L. R. Eq. 459. 
 
USAGES, THEIE OFFICE US' SPECIAL INSTAJS'CES. 259 
 
 to whicli we must now refer. The dictum to which we have 
 just referred was definitely laid down in a ease in which it 
 was attempted to set up evidence of usage in contradiction 
 of a written instrument. 
 
 Contradiction by Usage Not Allowed — Inconsistent Principles 
 — Addition of Term Inadmissible. 
 
 Sec. 116. This was an action on warranty of "prime singed 
 bacon," and evidence was offered of a usage in the bacon 
 trade that a certain latitude of deterioration called " average 
 taint" was allowed to subsist before the bacon ceased to 
 answer the description of prime bacon, (s) There is scarcely 
 any question more difficult to answer than that with refer- 
 ence to the principles upon which certain usages have been 
 held to contradict, while very similar usages have been 
 regarded only as explaining. The above case, in which 
 there was an effort made to explain that the terms " prime 
 singed bacon " included in the trade bacon which was to 
 some extent deteriorated, seems to differ very little from that 
 in which " Calcutta linseed " was held to describe a linseed 
 which had 15 per cent, of inferior material mixed with it. 
 But there are other cases which strike one as anomalous, and 
 suggest the defectiveness of the legal principles under which 
 they were decided. Thus, a declaration stated that by char- 
 ter party it was agreed between the owner of a ship called 
 the Maggie, being in the London Docks, that the ship would 
 load a cargo and therewith proceed to Hong Kong and deliver 
 the same on being paid freight, " the ship to be conveyed to 
 the charterer's agents in China free of commission on the 
 charter." Averments that according to the custom of mer- 
 chants in London, whenever a ship chartered in London for 
 China is agreed to be conveyed to the charterer's agents, 
 whether consigned free of commission on that charter or not, 
 it is the right and duty of such agents, as the consignee of 
 the ship, to procure a charter or cargo for the ship for any 
 
 (s) Yeates v. Pym, 6 Taunt. 445. 
 
260 USAGES, THEIK OFFICE IN SPECIAL INSTANCES. 
 
 voyage from such port, and they are entitled to be paid the 
 usual broker's commission on the amount of the freight pay- 
 able under such contract; but in case the owners of the ship 
 procure a charter or a cargo for the ship for the consignees, 
 the consignees are entitled to the broker's commission on any 
 freight payable under such charter party, unless such right 
 is excluded by special contract-breach, that although the 
 ship was loaded, and arrived in China, and the plaintiff's 
 agents, as consignees, performed their duty free of commis- 
 sion on the outward voyage and cargo, and were ready to 
 procure a charter or a cargo from Hong Kong, and although 
 the plaintiff performed all conditions precedent, the defend- 
 ant, without any default of the plaintiff's agents, procured a 
 cargo for voyage from Hong Kong, and without any such 
 default procured a cargo to the United Kingdom, the usual 
 broker's commission on which amounted to a large sum ; yet 
 the defendant has not paid or allowed the same to the plain- 
 tiffs or their agents, whereby the plaintiffs were obliged to 
 pay their agents a compensation in respect thereof. It was 
 held under these circumstances that the declaration was bad, 
 since the custom did not explain or annex an incident to the 
 cpntract, but added a term to it.(^) In this case the court 
 (Pollock, C. B.,) said, " Here it is sought not to explain the 
 contract by the custom, or to add to it some incidental mat- 
 ter not inconsistent with what is expressed, but to impose on 
 the party who has entered into one contract another and a 
 different obligation, and because he has agreed to consign the 
 ship to the charterer's agents on the outward voyage, to make 
 him liable to pay the agents' commission on the homeward 
 cargo. If that could be done, where is it to stop ?" 
 
 Universal Custom and General Law. 
 
 Sec. 117. In Myers v. Dresser, {u) in which it was decided 
 
 (t) Phillips V. Briard, 1 H. & N. 21 ; (u) 16 C. B. N. 8. 646, at 660. Evi- 
 
 25 L. J. Exch. 233 ; see also Hudson dence is admissible on the part of 
 V. Clementson. carriers of freight by water to show 
 
USAGES, THEIR OFFICE m SPECIAL INSTANCES. 261 
 
 that the consignee of goods under a bill of lading has no 
 right to deduct from the freight, payable on delivery of goods, 
 
 that certain usages exist as to the 
 mode of stowage, &c., and as to the 
 kinds of goods that are to be stowed 
 together, and unless the shipper 
 gives special directions in this re- 
 spect, or the contract provides a dif- 
 ferent mode, if the currier follows 
 the usage, and the goods are injured 
 on the voyage in consequence of the 
 mode of stowage, the shipper cannot 
 charge the carrier with liability 
 therefor. Barber v. Bruce, 3 Conn. 9; 
 Baxter v. Leland, 1 Blatch. (U. S. C. 
 C.) 526; Sturges v. Bulkley, 32 Conn. 
 265. In an action against the own- 
 ers of a steamboat, as common car- 
 riers, for failing to deliver goods at 
 the place specified in their bill of 
 lading, evidence of a custom among 
 the steamboat men to ascend the 
 river as high as the stage of the 
 water in it permitted, and then to 
 land their cargo and deposit the 
 goods in warehouses, is not admissi- 
 ble for the defendants. Cox v. Peter- 
 son, 30 Ala. 608. So, too, it has been 
 held that evidence is admissible to 
 show that, by a custom existing on 
 a particular river, fiat boatmen were 
 not responsible for a loss caused by 
 dangers of the river, although the 
 bill of lading contained no such ex- 
 ception. Steele v. BIcTyer, 31 Ala. 
 667. So an owner of a steamboat, 
 when sued for the loss of goods by 
 fire, may show that the exceptive 
 words " dangers of the river," in the 
 bill of lading, by custom and usage 
 include dangers by fire. McClure v. 
 Cox, 32 All!,. 617 ; Hibler v. McCartney, 
 31 Ala. 501. In an action on a re- 
 ceipt for a quantity of corn in store 
 " on freight," it is competent for the 
 defendant to prove a custom of the 
 
 place, which had continued forty 
 years, to pay for corn so left, after 
 the owner had ordered it to be 
 freighted, and not before, artd that 
 this custom was known to the plain- 
 tiff, and that he had been in the 
 habit for many years of leaving 
 grain at the same place, to be 
 freighted on the same terms. Out- 
 water V. Nelson, 20 Barb. (N. Y.) 29. 
 Evidence of a custom of merchants 
 in Connecticut, that the freight of 
 money received on board a ship by 
 the master is his perquisite, and that 
 he, and not the ship owner, is liable 
 on the contract, was held admissible 
 in a suit against such owner for 
 money taken on freight by the mas- 
 ter at a West India island. Halsey v. 
 Brown, 3 Day (Conn.) 346. A local 
 custom at one port, regulating the 
 mode of delivering goods there, is 
 not binding on shippers at another 
 port, unless known to them. The 
 Albatross v. Wayne, 16 Ohio 513. A 
 contract for a general lien may be 
 raised from usage, that is, it may be 
 inferred from the general dealings 
 of other persons engaged in the 
 same business, but the dealings 
 must be so general and so long con- 
 tinued, and of such notoriety, that 
 they may be presumed to have been 
 known to the party at the time of his 
 dealing with the other, and from this 
 it may be presumed that the parties 
 dealt upon the same footing as all 
 others with reference to the known 
 usage of the trade. Bushforth Y.Had- 
 fleld, 519. See as to commercial 
 usages generally, notes to Wiggles- 
 worth V. Dallison, 1 Smith's Leading 
 Cases. Such proof as the founda- 
 tion for a lien is required to be much 
 
262 USAGES, THEIE OFFICE IN SPECIAL INSTANCES. 
 
 the value of articles which, though mentioned in the bill of 
 lading, turn out not to have been put on board, the defend- 
 ant gave evidence of a usage prevailing in the mercantile 
 world to allow a deduction for missing goods, whether shown 
 to have been put on board or not ; and the court intimated . 
 that such evidence was inadmissible, Erie, C. J., remarking, 
 " If the general law be as I have suggested, this usage can- 
 not avail the plaintiff. It is a self-evident contradiction to 
 my mind to say, that the general law does not allow the de- 
 duction, and that there is a universally established usage to 
 allow it. A universal usage, which is not according to law, 
 cannot be set up to control the law." 
 
 Direct Variance of Usage and Contract. 
 
 Sec. 118. In Blachett v. Royal Exchange Insurance Co.,{v) 
 which was an action upon " ship and boat and other furni- 
 ture," evidence was offered that it was not the usage of under- 
 writers to pay for boats slung on the davits or the larboard 
 quarter ; but this evidence was rejected at Nisi Prius, and 
 the decision of the judge was held to have been correct by 
 the Court of Exchequer. " The objection," said Lord Lynd- 
 hurst, delivering judgment, "to the parol evidence is, not 
 that it was to explain any ambiguous words in the policy, or 
 any words that might admit of doubt, or to introduce matter 
 upon which the policy was silent, but that it was at direct 
 variance with the words of the policy, and in plain opposi- 
 tion to the language it used, viz., that whereas the policy im- 
 ported to be upon ship furniture and apparel generally, the 
 usage is to say that it is not upon furniture generally, but 
 
 stronger in some cases than in Goss, 8 B. & P. 119; Spears v. ilarWey, 
 
 others; in the case of carriers, for 3 Esp. 81. The claim of a carrier 
 
 instance, stronger evidence is re- for alien Is not founded on the oom- 
 
 quired than in the case of wharfing- nion law, and is watched with great 
 
 ers, because the rights of the latter jealousy. Oppenheim v. Russell, 3 B. 
 
 have been more frequently recog- &P. 42; Wright v. Snell, 5B. & A]d. 
 
 nized in the courts. Naylor v. Man- 853 ; Butler y.Walcott, 2 N. E. 54. 
 
 gles, I Esp. 110; Hplderness v. Colli- (d) 2 Tj'rwh. 266. 
 rum, 7 B. & C. 216) Richardson v. 
 
USAGES, THEIK OFFICE IN SPECIAL INSTANCES. 263 
 
 upon part only, including the boat. Usage may be admissi- 
 ble to explain what is doubtful, but it is never admissible to 
 contradict what is plain." (-i^^) 
 
 Evidence of Usage Rejected. 
 
 Sec. 119. It has been held, too, that in an action against 
 the drawer of a bill of exchange, drawn and indorsed in 
 England and payable abroad, and dishonored, evidence is 
 not admissible to prove a usage among merchants hereto en- 
 title the holder at his option to demand from the drawer the 
 amount of re-exchange, or the sum which he gave for the 
 purchase of the bill, this being a usage which in terms con- 
 tradicts the written instrument, (x) Again, when at the. re- 
 quest of M., the defendant, a proprietor of railway time 
 tables, signed an order (which M. also signed), which was in 
 these terms : " Insert my advertisement for one year in ' Hot- 
 son's Local Time Table,' the Great Northern (and six others 
 named), charge for insertion to be lOs. each monthly book." 
 The plaintiff's time tables consisted of separate books, pub- 
 lished monthly, one for each of the seven railways. The 
 plaintiff did not employ M. to obtain orders for him, but on 
 such as he obtained allowed him a commission. M. brought 
 the defendant's order to the plaintiff, who approved it, and 
 allowed M. his commission, and having inserted the adver- 
 tisements for a whole year in each of the seven books, brought 
 an action against the defendant to recover at the rate of sev- 
 enty shillings a month. At the trial it was pressed on the 
 
 {w) See also Howell v. Knicker- Exch. 217, in which a custom in the- 
 
 booker Life Ins. Co., 19 Abb. Pr. (N.Y.) timber trade between British North 
 
 217; comi^&xs Boeheny. Williamsburg America and England, that under- 
 
 Ins. Co., 35 N. Y. 331. The decision writers under the ordinary forms of 
 
 in this case was spoken of with dis- policy are not liable to pay general 
 
 proval in Humfrey v. Dale, E. B. <fe average on account of the jettison of 
 
 B. 1,004, and it is certainly difficult any timber stowed on deck, was held 
 
 to distinguish the principles of its to be a defence on an action for 
 
 decision from that which actuated general average, 
 the court in other instances. Thus {x) iSwse v. Pompe, 8 C. B. N. S. 588 ; 
 
 in Miller v. Tetherington, 30 L. J. 30 L. J. C. P. 75. 
 
264 USAGES, THEIR OFFICE IN SPECIAL INSTANCES. 
 
 part of the defendant what representations M. had made to 
 him to induce him to enter into the written contract, the de- 
 fendant's contention being that he was only liable for ten 
 shillings per month, in respect of one advertisement in one 
 book. It was held that the effect of such evidence would be 
 to vary a written contract, and that, therefore, it was not ad- 
 missible. (3/) When a written contract is susceptible, on its 
 face, of a construction that is reasonable, evidence of usage 
 is not admissible to explain its language f and this general 
 rule applies to an instrument so loose as an open or running 
 policy of insurance, and even to one in which the phrases 
 relating to the matter in contest are scattered about the 
 document in a very disorderly way.® Thus, evidence of 
 usage has been held not admissible to show that the words 
 "current funds" have acquired a peculiar meaning,-^ but it 
 would seem that, if a well settled and known usage is estab- 
 lished, giving to the phrase a peculiar meaning different from 
 its ordinary signification, evidence thereof is admissible.^ So 
 it is not competent to show what is meant by the words "more 
 or less" in a broker's note for the sale of goods. Thus, where 
 a note of that kind was " sold to N. W. for account of S. C, 
 five hundred bundles ' more or less ' -gunny bags," it was 
 held, that no latent ambiguity existed such as would justify 
 evidence outside the note to explain their signification.^ Nor 
 
 (y) Brown v. Hotson, 9 C. B. N. S. the defendant was induced to sign 
 
 442; 30 L. J. C. P. 106. In this case the contract by M.'s fraud, the evi- 
 
 it was also expressly held, as we dence would have been admissible, 
 
 should have expected, that (assum- See also Reading v. Newnham, 1 M. 
 
 ing M. to have been the plaintiff's & Eob. 234, at p. 236. 
 agent) if the issue had been whether 
 
 ' Lomardo v. Case, 49 Barb. (N. Y.) " north " in the deed. Jenny Lind 
 
 95; Sanford v. Rawlinqs, 43 111. 92 ; Co. v. Bower, 11 Cal. 194. 
 
 Ehle V. Chittenango Bank, 24 N. Y. " Insurance Co. v. Wj-iffht, 1 Wall. 
 
 548 ; Cabot v. Winsor, 1 Allen (Mass.) (U. S.) 456. 
 
 546. Parol evidence of a custom in ^ 3Iore v. Kupfei; 34 111. 287. 
 
 contemplation of which a deed was ^ Ehle v. Chittenango Bank, 24 N. 
 
 actually made to run the courses by Y. 548. 
 
 the magnetic meridian is admissible ^ Cabot v. Winsor, 1 Allen (Mass.) 
 
 to explain the meaning of the word 546. 
 
USAGES, THEIK OFFICE IX SPECIAL INSTANCES. 265 
 
 is evidence ever admissible to show that the parties to an in- 
 strument placed upon a certain word or phrase a peculiar 
 meaning controlling the whole eflfect of the instrument. The 
 evidence must be such as discloses a scientific or popular 
 meaning; or it must be construed in its ordinary sense.* 
 Such evidence is not admissible to show what the words " to 
 erect a marble monument " in a contract is understood to 
 mean by those engaged in the trade.^ Nor will evidence of 
 the sense which words have acquired by usage be admitted, 
 when the attendant circumstances of the transaction plainly 
 show that the words were used in their ordinary sense. Thus, 
 in an action on a contract to deliver stocks, it was held, that 
 the plaintiff would not be permitted to show that by the gen- 
 eral custom of brokers and dealers in stocks in New York, 
 the words " dividends, or surplus dividends," in the contract, 
 were intended to mean dividends declared on the stocks, 
 whether they had been announced before or after the date of 
 the contract ; provided, that on the day the contract was made, 
 the stock was selling in the market, dividend on, and not ex- 
 dividend, for the reason that effect could not be given to the 
 custom without making a new contract between the parties.® 
 In an English case, not referred to by the author,'^ the defen- 
 dant entered into an agreement to " even stones, &c., for the 
 purpose of building" certain cottages, and it was held not 
 admissible to show by parol that the term " building," in such 
 contracts, by usage, included tile pointing and plastering. 
 Creswell, J., said, the construction of the contract being for 
 the court, he was of the opinion that the term building, as 
 used therein, did not include the matters in question. With- 
 out entering into any lengthy discussion of the question, yet 
 upon principle, and, as we believe, upon the weight of 
 authority, however well settled the ordinary meaning of a 
 
 * Hartwell v. Camman, 10 N. J. Eq. ^ Lombardo v. Case, 45 Barb. (N. 
 128 ; Evansville &o. R. R. Co. v. Meeds, Y.) 95. 
 
 11 Ind. 273. ' ChmUon v. Gibson, 1 C. & K. 541. 
 
 * Sanford v. Rawlings, 43 111. 92. 
 
266 USAGES, THEIR OFFICE IN SPECIAL INSTANCES. 
 
 word may be, if it has acquired a peculiar sense by the usage 
 of a certain business, and, the usage is well established, certain, 
 uniform and reasonable, we entertain no doubt but that our 
 courts would admit the evidence and permit its meaning so 
 acquired by usage, to be shown.* It will be observed that 
 in the cases where such evidence was rejected, no well-estab- 
 lished usage was shown to exist. In an English case,^ it was 
 held that, while the fact that words had by usage acquired a 
 technical sense might be shown, yet that such evidence was 
 not admissible to contradict or vary that which is plain. 
 But if in fact a word has acquired a technical or peculiar 
 meaning in a trade and the usage is proven to the satisfac- 
 tion of the jury,^ and is shown to be uniform and invariable, 
 it will be admitted, although it entirely changes the ordinary 
 sense of the word and makes the contract entirely different 
 from what it appears to be.^ In the case of Hall v. Jan- 
 son,{z) which was an action on a policy of marine assurance 
 in the ordinary form, in which the interest was declared to 
 be " on money advanced on account of freight," and the 
 court alleged the interest to be in the ship owner, and that 
 it became subject to a general average contribution, a plea to 
 the court stating a custom of London, where the policy was 
 made, that assurance upon " money advanced on account of 
 freight " should not be liable for a general average, was held 
 bad, the custom alleged being inconsistent with the terms 
 of the policy, (a) 
 
 ' Daniels v. Hudson River Ins. Co., ^ Beacon L. & F. Ins. Co. v. Gibb, 1 
 12 Gush. (Mass.) 416; Mobile etc. Ins. Moore P. C. N. S. 73. 
 Co. V. McMillan, 27 Ala. 77; Wliii- ^Ashworthv.Belford,!,.^.,^ 0.7.20. 
 marsh v. Conway Ins. Co., 16 Gray ^ Xaylor v. Briggs, 2 N. & M. 28 ; 
 (Mass.) 657 ; Stetvard v. Scudder, 24 Hills v. Evans, 31 L. J. Ch. 437 ; Clay- 
 N. J. L. 96 ; McClure v. Cox, 32 Ala. ton v. Gregson, 4 N. & M. 602 ; Kirch- 
 en; Hibler v. McCartney, 31 Ala. ner v. Venus, 6 Jur. N. S. 395; 
 501. Kinglake v. Bivess, 18 L. J. C. P. 628. 
 
 (z) 4 E. & B. 500; see also Foster (a) Bogert v. Canman, Anth. N. 
 
 V. Mentor Ins. Co., 4 El. & Bl. 8 ; P. 97. 
 Clarke v. Westrope, 18 C. B. 765. 
 
USAGES, THEIK OFFICE IN SPECIAL INSTANCES. 267 
 
 Words of General Import. 
 
 Sec 120. In Cross v. EglinXb) evidence had been oflfered 
 for the purpose of showing that the plaintiffs, who had con- 
 tracted for 300 quarters {more or less) of foreign rye, could 
 not, consistently with the usage of trade, be required to 
 receive so large an excess as 45 quarters over 300. The 
 question as to the admissibility of the evidence was ulti- 
 mately withdrawn from the attention of the court; but Lit- 
 tledale, J., remarked that where words were of such general 
 import, he should feel much difficulty in saying that evidence 
 ought to be received to ascertain their meaning. 
 
 Terms Added Must be Incidental. 
 
 Sec. 121. It would appear further that terms which are 
 not only not inconsistent with, but which are not really 
 incidental 'to those expressed in the written contract, are to 
 be held inadmissible of annexation by oral evidence of the 
 particular usage of a trade. In a case above referred to, 
 where the charterer of a vessel for a voyage from England 
 to China — the ship to be conveyed to his agents there free 
 of commission — endeavored to add to the charter party a 
 term that the agents in China should be entitled to procure 
 charters for the return voyage from China, and be paid on 
 commission an amount of freight mentioned in such charters, 
 by means of proof of a particular custom, he was prevented 
 on the ground of the inadmissibility of such proof, (c) These 
 very numerous and varying decisions are apt to confuse 
 rather than 4irect the mind in reference to this most difficult 
 question of evidence. We are, however, not left without 
 assistance in relation to this matter. In some recent cases 
 the point has been fully argued and the question fully dis- 
 cussed. The ruling in these cases must be held to be con- 
 clusive as to this matter, and it will be seen that these have 
 the effect of giving to parol evidence of custom as modifying 
 
 (6) 2 B. & Ad. 25 L. J. Exch. 233 ; Fawkes v. Lamb, 
 
 (c) Phillips V. Briard, 1 H. & N. 21 ; 31 L. J. Q. B. 98. 
 
268 USAGES, TPIEIK OFFICE IN SPECIAL INSTANCES. 
 
 written agreements very considerable force. To our think- 
 ing, the true rule was stated in one of these cases by Lord 
 Campbell, where he said that " to fall within the exception 
 of repugnancy the incident must be such as if expressed in 
 the written contract would make it insensible or inconsist- 
 ent." Addison advised young authors who were indulging 
 in metaphors, to see whether they could be painted. It 
 might be a safe rule for those who have to see whether a 
 usage will attach an incident to a written contract or not, to 
 see whether they can be written down together without pro- 
 ducing a contradiction or nonsense. 
 
 Contracts for Services. 
 
 Sec. 122. When a person enters into the employ of a 
 person who has adopted a printed table of rule^ requiring 
 workmen to give two weeks', or any other, notice of an inten- 
 tion to quit the service, the burden of establishing knowl- 
 edge on the part of the servant of such regulations is upon 
 the master, and this requires him to show such knowledge 
 at the time when the contract was entered into^ or assent 
 thereto afterwards, and mere proof that he subsequently 
 became aware of them and kept on working without objec- 
 tion, is not sufficient to show that he assented to the rules 
 as a part of his contract. It is competent evidence tending 
 to show such assent, but is not sufficient, of itself, to estab- 
 lish it.* And proof that a printed copy of the rules was 
 placed in the hands of the servant at the time when he was 
 employed, does not establish knowledge thereof on his part, 
 unless it is also shown that he could read, as the law does 
 not presume that every one can read, but rather the reverse.^ 
 Actual knowledge of the rules, or of the custom if it is relied 
 on as such, must be shown.*' But where knowledge of the 
 
 3 Wood's Milster and Servant, 187. ^ Bodge v. Faver, 15 Gr;iy (Mass.) 
 
 *CoUins\.N. E. Iron Co. Mb Mass. 23. 82 ; Stevens v. Reeves, 9 Pick. (Mass.) 
 
 ^Bradley v. Salmon Falls Co , 30 N. igg. 
 H. 487. 
 
USAaES, THEIE OFFICE IN SPECIAL INSTANCES. 269 
 
 rule at the time of employment is shown, assent thereto is 
 presumed, and it becomes a part of the contract.'' The ques- 
 tion as to whether a contract is made into a local custom is 
 for the jury, and mere proof of the prevalence of such a 
 custom in the community is not sufficient to establish the 
 fact. Both proof of its existence and knowledge of it by 
 the party sought to be affected by it, or circumstances which 
 fairly raise a presumption of knowledge must be established.* 
 But if the custom is general and applies to all the class of 
 laborers referred to, and is not confined to a particular local- 
 ity or district, from the existence of the custom the law will 
 presume that the contract was made in reference to it. But 
 special customs, or customs of a single individual, corpora- 
 tion or firm, must not only be proved, but it is also always a 
 question of fact whether a contract was made in reference to 
 it,® and if the -contract is express in all its provisions, a cus- 
 tom cannot be proved, as the contract is presumed to have 
 been made to avoid the custom.^ Where the compensation 
 is fixed by the contract, evidence of further compensation by 
 way of customary privileges is inadmissible,^ bat where the 
 rate of compensation is not fixed by the contract, or is left 
 indefinite, evidence of the usual rate of compensation allowed 
 for similar services in that locality is always admissible.^ So 
 where no special contract as to duration of a term exists, it 
 is proper for the servant, if he can, to show a custom in the 
 business that persons employed as he was are not to be dis- 
 
 '' Harmon v. Salmon Falls Mfg. Co., in which they were to be employed 
 
 35 Me. 447. was " to cut cord-wood on the Mis- 
 
 * Wood's Master and Servant, 188. sissippi river, at or near Mills' Point, 
 
 ^ Liitledale, J., in Clayton v. Oreg- and for no other purpose.'' It was 
 son, 5 Ad. & El. 315; Powell v. Hor- held that by the terms of the con- 
 ton, 2 N. C. 1668; Studdy v. Sanders, tract the custom of wood-choppers on 
 5 B. <fe C. 628. the Mississippi river was excluded, 
 
 ^ Petersv.Stanley,15'L.T. IS. S.275. the contract negativing any refer- 
 In Bedford v. Flowers, 11 Humph. ence to such usages. 
 (Tenn.) 242, where by a written con- ' Bogert v. Canman, Arth. (N. Y.) 
 tract for the hiring of slaves, it was 70 ; Phillips v. Starr, 26 Iowa 349. 
 expressly stipulated that the services ' Pursell v. McQueen, 9 Ala. 380. 
 
270 USAGES, THEIK OFFICE IN SPECIAL INSTANCES. 
 
 missed until the end of the season, and what the end of the 
 season is by that custom.* In all cases where a person is 
 hired for a term, in the absence of any agreement in that 
 respect, full performance is a condition precedent to his right 
 to recover any part of the compensation therefor,^ unless he 
 can show a custom applicable to the business to pay weekly, 
 monthly or at other stated periods. If such a custom exists, 
 it enters into the contract and regulates the time of payment.® 
 So, too, the usages in that respect, if there are any, regulate 
 the duties incident to a particular service, and evidence of 
 such customary duties are admissible in a case where the 
 question is involved.'' A usage that persons employed in a 
 certain trade are entitled to certain holidays and Sundays 
 to themselves, is admissible.^ 
 
 Principal and Agent. 
 
 Sec. 123. It is a well settled principle that evidence is not 
 admissible of a usage that authorises a factor, or agent, to 
 violate the instructions of his principal,^ but, if it is shown 
 that the agent has been accustomed to violate such instruc- 
 tions in a particular respect, and the principal has apparently 
 acquiesced therein, the agent, as to those with whom he has 
 so dealt, becomes by usage, clothed with authority to so deal, 
 and the principal is liable for his acts.^ Where the princi- 
 pal gives his agent no definite instructions, the agent is war- 
 ranted in pursuing the usual course in reference to the 
 business or duties with which he is entrusted, and is not 
 answerable to his principal if he keeps within the scope of 
 the usages of the business. Thus, if a person entrusts cattle 
 
 * Given V. Charron, 15 Md. 502. It (Ky.) 326. 
 
 is for the court to say whether the * Reg. v. Stoke-upon-Trent, 5 Q. B. 
 
 custom is reasonable, Id. Bodfish v. 303. 
 
 Fox, 23 Me. 90. » Barhsdale v. Brown, 1 N. & M. (S. 
 
 5 Larkin v. Burk, 11 Ohio St. 561 ; C.) 519. 
 
 Wood's Master and Servant, 273. ^ Perkins v. Washington Co. Ins. Co., 
 
 « Thayer v. Wadsworth, 19 Pick. AGow.CN. Y.) 64:5; Houghton v. Em- 
 
 (Mass.) 349. back, 4 Camp. 88; Dickinson Co. v. 
 
 '' Vaughn v. Gardner, 7 B. Mon. Ins. Co., 41 Dana 286. 
 
USAGES, THEIR OFFICE IIST SPECIAL INSTANCES. 271 
 
 or other property to a person to sell for him, with no posi- 
 tive instructions as to how the sale shall be made, the agent 
 is warranted in pursuing the usual course of those engaged 
 in that business, and if it is usual to sell on credit, he will 
 be justified in so doing ; and if he is guilty of no laches or 
 fraud in giving the credit, he will not be responsible, 
 although the purchaser becomes insolvent before the credit 
 expires.^ So, although instructions are given, if they do not 
 necessarily exclude a usage in regard to the transaction of 
 the business, the usage will protect the agent or factor. Thus, 
 where the principal directed a person to whom he sent grain 
 for sale on commission, to sell for " cash," it was held that he 
 might show, if he could, that by the usage among such deal- 
 ers, a short credit, as in this case, three or four days was re- 
 garded as a sale for "cash."^ But if the instructions are 
 positive and exclude the usage, it affords no protection. Thus, 
 where the instructions were to" sell for cash, and not on 
 credit," a usage to treat sales on a short credit as a sale for 
 cash, was held not admissible.^ Where an agent purchases 
 property for his principal, he cannot show a usage to sell 
 such property and return other property similar in kind, 
 quality and value, because under such a custom the property 
 could not be identified if the agent should fail ; and after a 
 
 2 Leach v. Beardslee, 22 Conn. 404. ports for sale, if deemed necessary, 
 
 See statement of the case, ante, pp. and by such proof to offset the 
 
 168-169. amount of recovery, or even defeat 
 
 ^Steward v. Scudder, 24 N. J. L. the action if the proceeds of the 
 
 ^6. In Wallace v. Bradshaw, 6 Dana sales did not exceed the advances, 
 
 (Ky.) 382, the defendants, commis- commissions, expenses, &c. See also 
 
 fiion merchants in New Orleans, re- -EtiAtean v.B?-o«ot, 4Eich. (8. C.)479. 
 ceived goods from the plaintiffs, * Catlin v. Smith, 24 Vt. 85. In a 
 
 merchants in Kentucky, for sale, New York, case, Greaves v. Sendricks, 
 
 upon which they made advances. 16 Haz. Penn. Eeg. 344, it was held, 
 
 In an action against them to recover that a commission merchant who 
 
 the proceeds or value of the goods, had been instructed to sell for cash, 
 
 it was held admissible for them to could not shield himself against a 
 
 prove that by the custom of New sale on short credit on the ground 
 
 Orleans, merchants making advances of a usage to consider a sale for six 
 
 on goods, to ship them to foreign days, as a sale for cash. 
 
272 USAGES, THEIR OFFICE IN SPECIAL INSTANCES. 
 
 sale in violation of orders, his interest becomes adverse to 
 that of the principal.^ 
 
 Custom Qualifying Meaning— Undisclosed Principal Usage. 
 
 Sec 124. In the recent case of Hutchinson v. Tatham,(d) 
 the law with regard to the admissibility of the parol evi- 
 dence of custom to qualify the meaning of a written docu- 
 ment has been carried to a very considerable exent. In that 
 case the defendants acting as agents for a person of the name 
 of Lyons, with his authority chartered a ship for the con- 
 veyance of a cargo of currants from the Ionian Islands. The 
 charter party was expressed to be made, and was signed by 
 the defendants, as " agents to merchants," the name of the 
 principal not being disclosed. At the trial evidence was 
 tendered on the part of the plaintiff and admitted, of a trade 
 usage, that, if the principal's name is not disclosed within a 
 reasonable time after the signing of the charter party, in 
 such case the broker shall be personally liable. The jury 
 found that there was such a custom, and that the name of 
 the principal had not been disclosed within a reasonable 
 time. The question for the court was as to the admissibility 
 of the parol evidence; and the judges, while restating the 
 doctrine that no such evidence would be admissible to con- 
 tradict the plain terms of a document, held that it was 
 the law, that you might by evidence of custom add a term 
 not inconsistent with any term in the contract, and that 
 the evidence which was admitted at the trial was rightly 
 admitted. 
 
 ' Foley V. Bell, 6 La. An. 760. In all tra.nsactions to be subject to the 
 
 Allen V. Dykers, 3 Hilt (N. Y.) 593, it usages of their offices, this incorpor- 
 
 was held that evidence of a usage ates into the contract a custom of the 
 
 among brokers to sell stock hypothe- office, on failure to furnish a sufficient 
 
 cated, and return the same kind of margin, to sell at the stock exchange, 
 
 stock on the payment of the sum for without notice to the customer, of the 
 
 which it was hypothecated, could not time and place of sale. Baker v. 
 
 be shown. If a broker is employed Drake, 66 N. Y. 518. 
 to purchase stock upon a margin, 
 
 (d) 8 L. E. C. P. 482. 
 
USAGES, THEIE OFFICE IN SPECIAL INSTANCES. 273 
 
 Undisclosed Principals, Agent's Liability— Agent's Liability 
 Modified— Qualification of Usage Introduced. 
 
 Sec. 125. As the case last referred to was decided upon 
 the authority of Humfrey v. Dale{e) and Fleet v. Murton,{f) 
 this may be the most convenient place to state the effect of 
 these cases. In the case of Fleet v. Murton, it appeared that 
 the defendants were fruit brokers in London, and were em- 
 ployed by the plaintiffs, who were merchants, also in London, 
 to sell for them. The defendants gave to the plaintiffs the 
 following contract note : " We have this day sold for your 
 account to our principal." Then followed a statement of the 
 number of tons of raisins, (signed) Murton & Webb, brok- 
 ers, 25 Mincing Lane. The defendants' principal having 
 accepted part of the raisins, and refusing to accept the rest, 
 the plaintiffs brought an action on the contract against the 
 defendants, and endeavored to make the defendants person- 
 ally liable by giving evidence that in the London fruit trade, 
 if the brokers did not give the names of their principals in 
 the contract, they were held personally liable, although, in 
 fact, they contracted as brokers for a principal. It was held 
 that the evidence of the custom was not inconsistent with the 
 written document, and Cockburn, C. J., said:(^) "For, 
 although where a party contracts as agent, there would not, 
 independently of some further bargain, be any liability on 
 him as principal. Yet, if a man, though professing on the 
 face of the contract to contract as agent for another, and to 
 bind his principal only, and not himself, chooses to qualify 
 that contract by saying that he will make himself liable, 
 though be is contracting for another, and giving to another 
 rights under the contract, he himself will incur the same lia- 
 bility as the principal. Now, although where a party pro- 
 fesses to contract as broker, it might, •prima facie, be. taken 
 that he contracts without the intention of incurring liability 
 on his own part, yet, if by the custom of the particular trade, 
 
 (e) 7 E. & B. 266. (/) 7 L. R. Q. B. 126. {g) At p. 129. 
 
 17 
 
274 USAGES, THEIR OFFICE IN SPECIAL INSTANCES. 
 
 there is that qualification of the contract (which, if written 
 into the contract in extenso, would undoubtedly bind him), 
 that qualification may, I think, be imported into the contract 
 by evidence of the custom." 
 
 Tacitly Implied Incident. 
 
 Sec. 126. In the earlier but ruling case of I>ale v. Hum- 
 frey, (h) which was very similar in many respects to the cases 
 above alluded to, the plaintiff, a broker, who brought an 
 action against the defendant, a broker, upon a written note 
 of the sale of oil in which .neither of the principal's names 
 were set forth, proved a custom in the trade, that when a 
 broker purchased without disclosing the name of his prin- 
 cipal, he was liable to be looked to as principal, and the 
 Court of Exchequer Chamber afiirming the judgment of the 
 Court of Queen's Bench, (i) held that evidence of the custom 
 was admissible, on the ground that it did not contradict the 
 written instrument, but explained its terms, or added a tacitly 
 implied incident. In relation to the decision of this case, the 
 reader would do well to read the words used by Mr. Justice 
 Blackburn in the case of Myers v. Sarl.{k) 
 
 Eepugnancy the Test— Varying Decisions. 
 
 Sec. 127. In any case it would seem that evidence of a 
 custom will be admissible unless it introduces something 
 repugnant to or inconsistent with the tenor of the written 
 instrument ; and it seems, from all the cases, that the quali- 
 fication introduced into a written contract by the proof of a 
 custom, is a qualification of construction, and that as a con- 
 struction never can be a contradiction, any custom which 
 would negative or contradict the plain words of a written 
 document would be inadmissible in proof. That there has 
 been a considerable amount of vacillation in the minds of' 
 various judges as to the extent to which usages should be 
 admitted in this connection is certain. Lord Eldon in one 
 
 [h) E. B. & E. 1004. [k) 30 L. J. Q. B. 9, at 14, quoted 
 
 \i) 7 E. & B. 266. ante, pp. 65 and 80. 
 
USAGES, THEIE OFFICE IN SPECIAL INSTANCES. 275 
 
 case(/) expressed a decided, opinion in favor of the enlarge- 
 ment of the scope of usage in relation to the explanation of 
 written contracts, but as one of the editors of one of the 
 editions of Smith's "Leading Cases," observes, (m) "the ten- 
 dency of the Court appears now to be the other way." Since 
 that was written, however, the decisions in two of the three 
 recent cases we have above referred to have been given, and 
 we cannot see that the principles of the law have suffered by 
 the greater breadth which is thus given to interpretation of 
 documents which have a decided tendency to be too narrow 
 for the intentions of the parties, who from their great 
 familiarity with the incidents to the contracts they are daily 
 in the habit of entering into, are apt to leave a great pait of 
 the contract understood, and put only a little of the less 
 familiar matter into writing. Were the law to refuse to give 
 effect to these understandings, it would really be refusing to 
 give effect to the real intentions of the parties at the time the 
 contract was entered upon. It would likewise be throwing 
 difficulties in the way of important transactions which are 
 often too urgent to be fully expressed in lengthy documents, 
 and would be doing something to prevent the regenerative 
 effects on law which may be looked for from custom. There 
 is a possibility of too lax an admission of custom as a force, 
 in such cases. The common business relations of others must 
 not be regarded as so stringent as to bind anyone to perform 
 his business in the same way. Each man is to be left free to 
 contract in what way he pleases, but when the interpretation 
 of a usage is possible in connection with a written agreement, 
 it is as fair to conclude — on the side of one of the parties, 
 that the contract was made with reference to it — as on the 
 other side to infer that it was made without any reference to 
 it, and with the intention of excluding its effect. Thinking 
 thus, we cannot see that the law has suffered in any respect 
 
 {I) Anderson V. Pitcher, 2 5. AT. IGS. A. & E. 589; and Johnstone v. Us- 
 (m) See also Trueman v. Loder, 11 borne, Ibid. 549. 
 
276 USAGES, THEIE OFFICE IN SPECIAI/ INSTANCES. 
 
 from the extension which has been allowed to the common 
 conduct as interpreting the common transactions of men. 
 Guarded by the consciousness that these customs are apt to 
 push their way into the statute book — and we believe that it 
 is well to be careful how they attain that position — little evil 
 can arise. 
 
 Modern Dictum. 
 
 Sec. 128. Hence we find that the modern dictum where a 
 phrase is used in a document, has two senses, one common 
 to language, the other peeviliar to the trade or business in 
 connection with which the writing has been executed, it is 
 to be understood as used in its peculiar meaning unless 
 upon construing the whole contract you can see that either 
 in express terms or by necessary implication the parties 
 intended to use it in a different sense, is to be approved of 
 and acted upon.(?i) 
 
 Definite Rule. 
 
 Sec. 129. To us it seems that a definite rule has been 
 reached, and that a guiding principle has been attained. 
 Everything, however, depends upon the consistency with 
 which our judges follow the precedents to which we have 
 alluded. A timid, retrograde policy is not impossible in the 
 future. Judges are only too apt to prefer the narrow gauge 
 of written words to the broad gauge of uncertain evidence of 
 custom, and some there are who have expressed doubt as to 
 the expediency of the recent policy, and hesitation as to 
 carrying it legitimately into practice. 
 
 (n) See Myers v. Sari, 30 L. J. Q. B. 9, per Blackburn, J., at p. 15. 
 
PKIVATE USAGES, CUSTOM OF BROKERS, &C. 
 
 277 
 
 CHAPTEE VI. 
 
 PRIVATE USAGES, CUSTOM OF BROKERS, &G. 
 
 ISO. PBIVATE USAGES. 
 
 131. CUSTOMS OF STOCK EXCHANGE, HOW FAR 
 
 THEY BIND A PRINCIPAL IGNORANT OP 
 THEM. 
 
 132. NOTICE TO BROKER GOOD WHERE NOTICE 
 
 TO VENDEE WAS NECESSARY— USAGE. 
 
 133. THIS EULE RECONCILED WITH GENERAL 
 
 PRINCIPLE — RULES IN OTHER CASES — 
 CUSTOMS AT LLOYD'S COFFEE HOUSE— 
 BAYLIFFE V. BUTTERWORTH. 
 
 134. THE SCOPE OF AUTHORITY. 
 
 135. NATURE OF USAGE TO BE CONSIDERED. 
 
 136. CONFIDENCE IN THE USAGES OP A TRADE. 
 
 137. INCIDENTS ANNEXED BY COMMON LAW— AS 
 
 TO TITLE. 
 
 138. EFFECT OF USAGE ON INSURANCE CON- 
 
 TRACTS. 
 
 139. AS TO MARINE INSURANCE- VOYAGE COM- 
 
 MENCED. 
 
 140. NECESSITY FOP. USAGE. 
 
 141. USAGE AND LEGAL ENACTMENTS — USAGE 
 
 CANNOT CONTROL A STATUTE. 
 
 142. INSTANCES IN WHICH USAGES ARE BAD. 
 
 143. WHERE MEANING IS GIVEN TO WORD BY 
 
 STATUTE — " BUSHELS " — "HOBEETT" — 
 CUSTOM AS TO WEIGHT— AS TO " LUMPS." 
 
 144. AS TO IMPORTANCE OF SUBJECT. 
 
 Private Usages. 
 
 Sec. 130. Private usages, or the usages of an individual 
 or corporation in a particular matter, are only binding upon 
 those who have knowledge thereof, so that they can be pre- 
 sumed to have assented thereto.^ Thus a custom among 
 banks to transmit bills and notes from each to the other for 
 collection, and, when paid, of passing the avails to the credit 
 of the bank transmitting them, and to the debit of the bank 
 so receiving them, cannot affect the claims of a third person, 
 to the avails of a bill which he has committed to one of them 
 for collection.^ But where a private usage in a particular 
 
 ^ Lawrence v. Stonington Bank, 6 
 Conn. 521 ; Osborne v. Sisture, 14 Id. 
 ^66 ; Halsey v. Brown, 3 Day. (Conn.) 
 846 ; OroOiy v. Fitch, 12 Conn. 410 ; 
 Kilgore v. Buckley, 14 Id. 362. 
 
 ^ Lawrence v. Stonington Bank, ante. 
 When it becomes necessary to prove 
 or disprove certain acts, evidence of 
 the usages of the parties in refer- 
 ence to such matters may be given, 
 as tending to show how the act was 
 done in a given case. Thus, where 
 the question at issue was whether 
 
 the plaintiff's attorney in a former 
 action directed an officer to take the 
 receipt of a certain person for prop- 
 erty attached by him, evidence that 
 it was the uniform habit of the 
 attorney not to give instructions to 
 an officer as to whom he should take 
 as receiver, was held admissible. 
 Hine v. Pomeroy, 39 Vt. 211. In an 
 action against a bank to recover a 
 sum of money sent to it in a pack- 
 age directed to the cashier thereof, 
 through an express company, where 
 
278 
 
 PRIVATE USAGES, CUSTOM OP BROKEKS, &C. 
 
 matter exists, as to the mode in which an individual, firm or 
 corporation transacts certain busingss, a person dealing with 
 
 stated by him as a reason why he 
 omitted to take either receipt or 
 payment. Kinne v. Ford, 52 Barb. 
 (N. Y.) 194. If, however, it had been 
 shown that the plaintiffs had been 
 accustomed to leave their checks in 
 the manner stated, the rule would 
 have been different. Thus, in a 
 case where the question was as to 
 whether or not the plaintiff, a broker, 
 was entitled to certain commissions 
 not specified in the charter party, 
 proof that on several other occasions 
 the defendants had paid him similar 
 commissions to those now claimed, 
 was held admissible, as being some 
 evidence either that the defendants 
 knew and assented to plaintiff's cus- 
 tom to malte such charge, or knew 
 that the charges were in conformity 
 to the usage of trade. Weber v. Kings- 
 land, 8 Bosw. (N. Y.) 415. But see 
 Park V. Miller, 27 N. J. L. 338, when 
 a factor offered on trial to show that 
 he hid not guarantee all sales made 
 by him, and for that purpose offered 
 to show that he was in the habit of 
 making entries in his books desig- 
 nating what sales were guaranteed 
 and what not, and the evidence was 
 lield not admissible. In a case where 
 it became important to show that 
 an insurance company liad waived 
 notice of a transfer of a policy, the 
 plaintiff offered to sliow that they 
 had done so in other cases, but the 
 evidence was held inadmissible. 
 Bunger v. Fanners, S:c., Ins. Co., 71 
 Penn. St. 422 ; Fogle v. Lycoming, &c., 
 Ins. Co., 3 Grant (Penn.) 77. So in 
 Hursh v. North, 40 Penn. St. 241, it 
 was held that evidence of the prac- 
 tice of a particular firm to sell on a 
 certain credit is not admissible to 
 
 the defence was that the package 
 was not delivered to the cashier or 
 the bank, but to the assistant receiv- 
 ing teller, while he was at the re- 
 ceiving teller's desk, and that he 
 never delivered it up, evidence was 
 held admissible to show a usage of 
 delivering packages at the receiving 
 teller's desk, and that a package was 
 delivered to the assistant receiving 
 teller on a previous occasion, and 
 was received by the bank. Hotchkiss 
 v. Artisans Bank, 42 Barb. (N.Y.) 517. 
 In another case C, one of the plain- 
 tiffs, who testified to the delivery of 
 a certain check; fixed the time of 
 such delivery at nearly a quarter 
 past 2 P. M. On his cross-examina- 
 tion he testified that he took no re- 
 ceipt for the check, and did not 
 get the defendant's check for the 
 amount of the gold draft which he 
 had delivered. To meet the effect 
 of this fact with the jury, on the 
 question of delivery or non-delivery 
 of the gold check in question, the 
 plaintiffs were permitted by the 
 judge to prove that other persons 
 who were late in their delivery of 
 checks payable in gold were some- 
 times accustomed to leave the 
 checks and take no check for cur- 
 rency in payment until afterwards. 
 It was held that this was error; that 
 the question was, did he deliver this 
 check in the manner and at the time 
 he testified he did; and it was not 
 proper evidence on this issue that 
 pei'sons about whose deliverances of 
 stock no question was made, were 
 sometimes accustomed to deliver 
 checks and receive neither evidence 
 nor payment, when such custom was 
 neither known to the witness nor 
 
PEIVATE USAGES, CUSTOM OP BKOKEKS, &C. 
 
 279 
 
 tliem in that respect, and hnowing of such usage, is bound 
 by it as much as though it was a general usage and so notori- 
 
 take a case out of the statute of 
 limitations, unless it is also shown that 
 the parties dealt with reference to it. 
 See also S. P. Goodman v. Parsons, 
 36 Vt. 46, and Searson v. Heyward, 1 
 Spear (S. C.) 249, where it was held 
 that the custom of particular firms 
 to charge interest on sales after a 
 certain time is not admissible, unless 
 it is also shown that the parties in a 
 given case knew of such custom. The 
 rule may be said to be that a usage 
 of an individual, which is knoum to 
 the person loho deals with him, may be 
 given in evidence, as tending to 
 prove what was the contract between 
 them in a matter to which such 
 usage relates. Loring v. Ourney, 5 
 Pick. (Mass.) 15. See also Naylor v. 
 Semmes, 4 G. & J. (Md.) 274. Thus, 
 where a person who purchases goods 
 knowing that the vendor has an 
 established usage by which orders 
 for goods are filled in the order in 
 which they are received, he is bound 
 by such usage, and in order to main- 
 tain an action against the vendor 
 for a breach of the contract by the 
 vendor in not reasonably filling the 
 order, he must establish a special 
 contract, or that the vendor did not 
 follow the usage in his case, or he 
 cannot recover, nor complain that 
 he has not been treated fairly. N. 
 E. Screw Co. v. Bliven, 4 Blatchf (U. 
 S. 0. C.) 97. But a private usage 
 that is contrary to the express or 
 implied provisions of a contract can- 
 not be set up. Thus, where a bank 
 had kept posted a notice that all 
 endorsers of notes to the bank would 
 be required to waive demand and 
 notice, and a note was endorsed to 
 the bank by one who had been for 
 
 several years a customer of the 
 bank, but no such waiver was writ- 
 ten upon the note, it was held that 
 parol evidence of this usage of the 
 bank, and of the assent of the en- 
 dorser, could not be shown to change 
 the contract implied in law from the 
 endorsement. Piscataqua Exchange 
 Bank v. CaHer, 20 N. H. 246. Nor 
 one that is unreasonable or that 
 sanctions an immoral act. Thus, a 
 usage of a board of directors to per- 
 mit its cashier to misapply its funds, 
 is bad. Minor v. Mechanics' Bank, 1 
 Pet. (U. S.) 46. In Grinnell v. W. 
 Un. Tel. Co., 113 Mass. 199, it was 
 held that evidence of a usage in a 
 local office of the company was in- 
 admissible to vary the terms of a 
 contract under which a message was 
 sent. In Nanatuck Silk Co. v. Pair, 
 112 Mass. 354, in an action to re- 
 cover the price of goods sold, there 
 was a clause upon the bill of parcels 
 accompanying the goods — a clause, 
 " Terms five per cent, ofi' for cash." 
 The defendants introduced evidence 
 of the plaintiff's usage to allow other 
 parties, upon similar sales, a credit 
 of thirty days, but testified himself 
 that, at the time of the purchase, he 
 was ignorant of the custom, and it 
 was held that, as he did not know 
 of, the custom could not be regarded 
 as a part of the contract, and conse- 
 quently was not admissible in evi- 
 dence. Again, even though a private 
 usage in a certain respect may be 
 proved, yet if it appears to be one 
 that the party must necessarily ex- 
 ercise his discretion about acting 
 upon, it is not obhgatory. Thus, a 
 usage among manufacturing cor- 
 porations in Lowell to give an hon- 
 
280 PRIVATE USAGES, CUSTOM OF BROKEES, &C. 
 
 ous as to be binding upon any of the public. Thus, where 
 a person procured a bank to negotiate a bill of exchange for 
 him on parties in New York, and knew that it was the cus- 
 tom and usage of the bank to send packages of money, 
 checks, bills, &c., to New York by the captain of a steamer 
 plying between the place where the bank was located and 
 New York, only once a week, and generally Thursdays, 
 although the steamer ran every day, and the bill so nego- 
 tiated, which was discounted on Monday, was sent to New 
 York, in conformity with such custom, the following Thurs- 
 day, and duly presented for payment, and protested on the 
 succeeding Saturday, it was held that the defendant could 
 not relieve himself from liability as endorser upon the ground 
 that the bank had not used proper diligence in presenting 
 and protesting the bill, because he must be presumed to have 
 assented to have the bill sent in that mode, and to have 
 waived the usual rule of law regarding the transmission of 
 such paper.^ But in order to be operative in a given case, 
 
 orable discharge to an operative where they are not shown to be per- 
 
 who had worked faithfully with sonally cognizant of such usage, 
 them for twelve months, and has ^ The Bridgeport Bank v. Dyer, 19 
 
 given a fortrtight's notice of his in- Conn. 136. In this case it was shown 
 
 tention to leave, whereby such oper- that the defendant was a' merchant 
 
 ative may obtain employment in in the city where the bank was lo- 
 
 other mills in Lowell, was held not cated, and had for several years kept 
 
 obligatory although all the condi- his account there, and during one 
 
 tions had been complied with, as year at least, was a director of the 
 
 the giving of such a discharge is a bank, and from this evidence it was 
 
 matter of discretion and judgment held that the jury were warranted 
 
 with the corporation. Thornton v. in finding that the defendant knew 
 
 Suffolk Mfg. Co., 10 Cush. (Mass.) of the usage. "No principle of law,'' 
 
 376. In Sweeting v. Pearce, 7 C. B. said Elhivorth, J., in delivering the 
 
 N. S. 449, it was held that the usage opinion of the court, " is better set- 
 
 of Lloyd's coffee house, that persons tied than that a known practice, or 
 
 insuring there are bound to admit one belonging to a particular branch 
 
 IDayment of a loss to them made by of business, is sufficient evidence of 
 
 way of set off, made between their the understanding of the parties 
 
 broker and underwriter, of the pre- when contracting in relation to that 
 
 miums due to the underwriter, business, unless there is evidence to 
 
 against the loss, does not apply the contrary." The Schooner Reeside, 
 
PEIVATE USAGES, CUSTOM OF BROKERS, &C. 
 
 281 
 
 actual knowledge on the part of the person to he affected 
 thereby, or circumstances from which such knowledge can be 
 presumed must be shown, because otherwise his assent thereto 
 could not be inferred. This is well illustrated in a Connecti- 
 cut case.* In that case the plaintiff deposited money with 
 
 2 Sum. (U. S.) 567; Bodfish v. Fox, 23 
 Me. 90.; Clark v. Baker, 11 Met. 
 (Mass.) 186; Bwight v. Whitney, 15 
 Pick. (Mass.) 179 ; Gibson v. Culver, 
 17 Wend. (N. Y.) 305 ; Renner v. Bank 
 of Columbia, 9 Wheat. (U. S.) 588. 
 
 * Eaves v. People's Savings Bank, 27 
 Conn. 228. A custom, to be binding, 
 must be general and well understood. 
 If the usage is clearly established 
 that the factor has a right to charge 
 commissions on purchases and on 
 acceptances, when not in funds to 
 meet drafts at maturity, such items 
 ought to be allowed. But commis- 
 sions and interest both cannot be 
 charged on advances. Smetz v. Ken- 
 nedy, Eiley (S. C.) 218. In a case 
 where A. advanced to B. a certain 
 sum on cotton shipped to Bremen, 
 and brought an action to recover the 
 amount in which the net proceeds 
 fell short of the sum advanced. In 
 the amount rendered by A. against 
 B. were a multitude of small charges 
 besides commissions, such as bill 
 brokerage and interest thereon, for 
 mending, handling, delivering, &c., 
 <fec. A verdict was rendered for the 
 whole amount. It was held that the 
 right to make such charges depended 
 so much on commercial usage that 
 the question was properly submitted 
 to the jury. Kuhtman v. Brown, 4 
 Rich. (S. C.) 479. So where A. con- 
 signed property to B. to sell on com- 
 mission, with instructions to " sell 
 for cash, or not on credit," and B. 
 sold and delivered the goods to C, 
 who said he would pay for them in 
 
 a few days, which promise he re- 
 newed from time to time for a few 
 weeks, when he failed. In an action 
 by A. against B. for the value of the 
 goods it was held that B. could not 
 show, in defense, a custom by which 
 such sale was considered a cash sale. 
 Catlin v. Smith, 24 Vt. 85. The cus- 
 tom of railroad companies to allow 
 their contractors the free use of their 
 own roads cannot be extended so as 
 to bind a company to pay the ex- 
 penses of its contractors on the road 
 belonging to another corporation. 
 Colcock V. Louisville R. R. Co., 1 
 Strobh. (S. C.) 329. That a railroad 
 company had been for about a 
 month in the habit of storing cotton 
 consigned to their agent at the ware- 
 house of A. without any proof that 
 this was generally known, or any 
 other evidence that the shipper had 
 notice of it, is not sufficient to bind 
 him. Alabama <fcc. R. R. Co. v. Kidd, 
 35 Ala. 209. An isolated instance is 
 not sufficient to prove a custom, nor 
 will evidence of the custom of one 
 person be sufficient to establish a 
 general course of trade. Burr v. 
 Sickless, 17 Ark. 428. Where a spe- 
 cial custom at the place of shipment 
 is proved, and the question is 
 whether the purchaser had knowl- 
 edge of the special custom, and 
 contracted in reference to it, the 
 previous course of dealing between 
 the same parties — such as the order, 
 shipment and receipt of several 
 invoices of goods, without any 
 charge for insurance— is sufficient 
 
282 PRIVATE USAGES, CUSTOM OF BEOKEES, &C. 
 
 the defendant bank. His bank book was stolen, and an 
 order for the money represented by it was forged, and upon 
 presentation to the bank with the book, was paid by it. It 
 was held that the usage of the bank, or of savings banks 
 generally, to pay money to a person presenting a deposit 
 book and order, could not avail the defendant, unless knowl- 
 edge of such usage was brought home to the depositor, so 
 that his assent thereto could be presumed. 
 
 CuBtoms of Stock Exchange, How Far They Bind a Principal 
 Ignorant of Them. 
 
 Sec. 131. We have now to consider, as naturally connect- 
 ing itself with the cases last referred to, the questions of 
 principal and agent in relation to this principle of the 
 admissibility of evidence of custom. We have seen that the 
 principle of the law is that parties who make a bargain in 
 connection with a particular trade must be taken to have 
 contracted subject to or with reference to the known usages 
 of that trade. It was laid down in the case of Sutton v. 
 Tatham,{a) that a person employing a broker on the stock 
 exchange impliedly gives him authority to act in accord- 
 ance with the rules there established, though the principal 
 himself be ignorant of them ; and in a case in which Sutton 
 V. Tatham was expressly approved of (Parkes, B.), the law 
 was stated generally in these words : "A person who deals 
 
 evidence from which the jury may shipments of freight, is insufficient 
 infer knowledge, of the special cos- to bind the owners — first, because 
 tom. Walsh v. Frank, 19 Ark. 270. no certain or fixed standard of remu- 
 To establish a shipping usage on a neration is shown, lior that the con- 
 certain river, the witness may state signee of the package would be 
 his habit and custom in shipping on liable to make any return for the 
 boats on the river. Berry w. Cooper, risk and labor incurred; and, sec- 
 28 Ga. 543. Proof of the usage of ond, because it is not shown tliat 
 the clerks of steamboats to receive such usage had grown up with the 
 and carry packages from one port consent of the owners of vessels, or 
 to another, without hire, in the ex- that it was more than a mere accom- 
 pectation that such boat would be modation usage. Oindnnati &o. Co. 
 preferred by the parties in their v. Boal, 15 Ind. 345. 
 
 (a) 10 A. & E. 27. 
 
PKIVATE USAGES, CUSTOM OF BROKEES, &C. 283- 
 
 in a particular market must be taken to deal according to 
 the custom of that market, and he who directs another 
 to make a contract at a particular place must be taken as 
 intending that the contract may be made according to the 
 usage of that place." (5) That this is a correct view of the 
 law has been over and over again decided. In an action 
 where the plaintifis, stock brokers and members of the Lon- 
 don stock exchange, had, it appeared, on the 28th of August,. 
 1856, at the request of the defendant, bought for him twenty 
 shares in a joint-stock bank, called " The Royal British 
 Bank," to be paid for on the " settlement day," which was 
 on the 15th of September, and duly forwarded to him the 
 usual broker's contract note. The bank stopped payment 
 on the 3d September, and ultimately became bankrupt. On 
 the. 11th, the defendant repudiated the transaction, and gave 
 the plaintiffs notice not to pay the price on his account. 
 The plaintiffs, having been compelled, according to the rules 
 of the stock exchange, to pay for shares on the settlement 
 day, sent the defendant the certificates and transfers, and,, 
 upon his declining to accept them, sued him for the money^ 
 and it was decided that they were entitled to recover it.(c) 
 
 Notice to Broker Good Where Notice to Vendee was Neces- 
 sary — Usage. 
 
 Sec. 132. So in the case of Graves v. Legg,{d) the defend- 
 ants, London merchants, employed a broker in Liverpool to 
 purchase some wool. The broker negotiated a sale by the 
 plaintiff to the defendants of certain bales deliverable at 
 Odessa, " the names of the vessels to be declared as soon as 
 the wools were shipped." In this transaction the broker 
 acted for both plaintiff and defendants. By the custom of 
 Liverpool, where a contract contained a stipulation that 
 
 (&) Bayliffe v. Butterworth, 1 Exch. 687 ; Stray v. Rtissell, 29 L. J. Q. B. 279 ;: 
 
 425, per Alderson, B., at p. 429. Lloyd v. Gilbert, 35 L. J. Q. B. 74. 
 
 (c) Taylor v. Stray, 2 C. B. N. S. 175 ; [d) 11 Exch. 642, affirmfed 2 H. &- 
 
 see also Smith v. Lindon, 5 C. B. N. S. N. 210. 
 
284 PRIVATE USAGES, CUSTOM OF BROKEES, &C. 
 
 notice of an event should be given by the vendor to the 
 vendee, it was usual for the vendor to give the notice to 
 the broker, who communicated it to the vendee. In this 
 case it was held, both in the Court of Exchequer and in 
 that of the Exchequer Chamber, that the defendants were 
 bound by such usage, and, therefore, that a notice by the 
 plaintiff to the broker of the names of the vessels on which 
 the wools were shipped was a performance of that stipula- 
 tion, although the broker omitted to communicate them to 
 the defendants. 
 
 This Rule Reconciled -with General Principle— Rules in Other 
 Cases— Customs at Lloyd's Coffee House— Bayliffe v. But- 
 terworth. 
 
 Sec. 133. But the rule expressed might seem irreconcila- 
 ble with the general principle which we stated above, that 
 it was only to be presumed that the parties contracted accord- 
 ing to the terms of an -existing custom, and that that pre- 
 sumption was capable of rebuttal; for here we see that a 
 usage may make a man liable to certain incidents of a con- 
 tract, although he can satisfactorily prove that he was in 
 ignorance of the custom. It also seems to be in almost direct 
 opposition to the rules laid down in Gabay v. Lloydie) and 
 Bartlett v. Pentland.{f) In the first of these it was found 
 in special verdict that a certain usage with respect to policies 
 prevailed amongst the underwriters subscribing policies at 
 Lloyd's cofiee house, in London, and merchants and others 
 effecting policies there, and that the policy in question was 
 effected at Lloyd's coffee house ; but it was not found that 
 the plaintiff was in the habit of effecting policies at that 
 place, and it was held that this usage was not sufficient to 
 bind the plaintiff. And in the latter a custom was proved 
 to be in force at Lloyd's coffee house, to consider a set off as 
 payment between underwriter and broker, and it was held 
 that such custom was not binding on one who was not shown 
 
 (e) 3 B. & C. 793. (/) 10 B. & C. 760. 
 
PKIVATE USAGES, CUSTOM OF BEOKEKS, &C. 285 
 
 to be cognizant of it, or to have assented to it. Yet these 
 cases were decided before the case of Bayliffe v. Butter- 
 worth — in which the general principle, that the usage of a 
 particular market binds him who buys or sells in it, whether 
 he is aware of it or not, was laid down — came before the 
 Court of Exchequer, and Parkes, B., while he did not ques- 
 tion the authority of these cases, distinguished them from 
 the one before the court, which was one in which a person 
 had been authorized to make a contract for a principal, and 
 he remarked that it appeared to him "that a person who 
 authorizes another to make a contract for him, authorizes 
 him to make the contract in the usual way," and that " the 
 question here was as to the authority which the plaintiff 
 received." (^) 
 
 The Scope of Authority. 
 
 Sec. 134. This seems a perspicuous distinction. The scope 
 of authority is to be ascertained by the necessities which are 
 incident to the act which an agent has to do. His action in 
 the matter will be estimated by the possibilities of the trade 
 in connection with which he transacts, and those possibilities 
 are modified by the usages of the trade. It is in the power 
 of the principal to define the agent's authority with a strict- 
 ness which will prevent the operation of the customs of the 
 place or trade. If he fails to do so, he must not complain if 
 his authority is interpreted by the ordinary usages of the 
 trade, and if he finds himself bound by these, even although 
 he is ignorant of their existence. In the cases to which 
 reference has been made above, (A) it was, as in the case of 
 Bayliffe v. Butterworth, always a question of authority, and 
 it cannot, therefore, be matter for wonder that the principle 
 enunciated in Oabay v. Lloyd has been confirmed, and that 
 the dictum in Scott v. Irving,{i) that a usage to substitute 
 
 [g) 1 Exch. pp. 428, 429. 279; Graves v. Legg, 11 Exch. 642; 
 
 (h) Taylor v. Stray, 2 C. B. N. S. 2 H. & N. 216, ante p. 91. 
 175; Stray v. Russell, 29 L. J. Q. B. (i) 1 B. & Ad. 606. 
 
■286 PRIVATE USAGES, CUSTOM OF BKOKEES, &C; 
 
 another person as debtor to the principal can only bind those 
 who have notice of it, has been adopted. (^) 
 
 Nature of Usage to be Considered. 
 
 Sec. 135. The character of the usage and its effect upon the 
 inter-relation of parties must be considered before it is admitted 
 to affect a contract entered into by persons who were ignorant 
 of it. Some usages are so evidently technical that it would be 
 wrong to suppose that persons contracting without knowing 
 them could reasonably anticipate their existence, or the existence 
 of any in that factual connection. Many, on the other hand, 
 are so palpably matters of general convenience, and belong- 
 ing to a trade in such rapid growth, that it must be presumed 
 to be making its own laws in the establishment of customs, 
 that it is right to presume that the individual contracting, 
 although ignorant of the particular custom, must have been 
 aware of the existence of usage, may have surmised their 
 nature, and even if he did not, was at least willing to enter 
 into a contract, the precise terms of which were unknown to 
 him, because the incidents were to be attached by a usage of 
 which he was ignorant. 
 
 <jonfldence in the Usages of a Trade. 
 
 Sec. 136. Just as one man trusts another to work for him 
 with general authority as an agent, trusting to the honor and 
 honesty of the individual, so may one trust a usage to regu- 
 late one's rights — for a usage is the outcome of the honor, 
 honesty, fair dealing, and convenience of a class of men. 
 The admissibility of proof of a usage as against one who was 
 ignorant of it is a question which might well be left to be 
 decided in each individual case. There could, it seems to 
 us, be little reason for dissatisfaction in the admission of a 
 rule of the Liverpool Stock Exchange, in evidence between 
 parties not members of it, when the question was, what is a 
 
 {k) Sweeting v. Pearce, 7 C. B. N. S. 449; see also Adams v. Petei-s, 2 C. & K. 723. 
 
PEIVATE USAGES, CUSTOM OF BEOKERS, &C. 287 
 
 reasonable time for the completion of a sale of shares made 
 at Liverpool through the agency of brokers ?(Z) 
 
 Incidents Annexed by Common Law— As to Title. 
 
 Sec. 137. It may be well to remark here that the way in 
 which usage is permitted to annex incidents to written con- 
 tracts, is another proof of its relationship to the common law. 
 Law annexes various incidents to contracts, and these differ 
 from those annexed by usage only in the circumstance that 
 they claim their own recognition without proof, while the 
 others have to be evidenced. It may be useful shortly to 
 allude to some of these, although many may be in the imme- 
 diate memory of the reader. In contracts for the sale of 
 estates, whether freehold or leasehold, the law, in the absence 
 of express stipulation, it will be remembered, implies an 
 undertaking on the part of the vendor that he will make out 
 a good title, (m) and an undertaking on the part of the ven- 
 dee that if the title prove defective, the damages to which he 
 shall be entitled shall be limited to the expenses actually 
 incurred in the investigation, and shall only be nominal for 
 the loss of the bargain, (n) So, in a demise of real property, 
 the law annexes a condition that the lessor has a good title 
 to the premises, and that the lessee shall not be evicted 
 during the term ; (o) but it does not imply from the nature 
 of the contract a warranty that the property leased, whether it 
 be a house or land, shall be in a proper state to admit either 
 of habitation or cultivation, or that in other respects it shall 
 be reasonably fit for the purposes for which it is taken, (jo) 
 
 {I) Stewart v. Canty, 8 M. & W. Bl. 1,078; Walker \. Moore. 10 B. & 
 
 160; see also Stewart v. Aberdein, 4 C. 416; Robinson v. Harman, 1 Ex. 
 
 M. & W. 211. E. 855, per Parke, B. ; Wordington v. 
 
 (m) Souterv. Drake, 5 B. & Ad. 992; Warrington, 8 C. B. 134. 
 
 3 N. & M. 40; Doe v. Stanion, 1 M. & (o) Per Parke, B., in Sutton v. Tem- 
 
 W. 695, 701, per Parke, B. ; Hall v. pie, 12 M. & W. 64. 
 
 Betty, 4 M. & Gr. 410. These cases (p) Sutton v. Temple, 12 M. & W. 52 ; 
 
 overrule George v. Prichard, Reg. v. Hart v. Windsor, Id. 68. But see, as 
 
 Moo. 417. to letting of furnished house, Smith 
 
 (to) Flurean v. Thornhill, 2 W. & v. Marrable, 11 M. & W. 5. 
 
288 PRIVATE USAGES, CUSTOM OF BROKERS, &C. 
 
 Effect of Usage on Insurance Contracts. 
 
 Sec. 138. In all cases of fire insurance, the insurer is pre- 
 sumed to know of all the customs and usages incident to any- 
 business or class of risks he undertakes to insure,^ as well as 
 all the risks usually incident thereto, and consequently is 
 presumed to contemplate all the perils connected with it, to 
 the minutest detail, so far as they arise or exist in the ordi- 
 nary and usual methods of conducting the business," and this 
 extends not only to the character of the risk, but also to the 
 matter covered by the policy. Therefore, when the stock is 
 insured, although nothing is said in the policy in reference 
 thereto, yet it being understood that the stock insured is to 
 be manufactured and sold, and replaced by other stock, the 
 policy covers the stock on hand at the time of the loss, 
 although no part of it was on hand when the policy issued, 
 because it being in accordance with the usual course of busi- 
 ness that the stock shall constantly change, the policy is 
 impliedly issued to cover any stock on hand when a loss 
 occurs.'' Thus, a policy issued upon merchandise in a store, 
 does not cover any special or particular property, but prop- 
 erty comprising such a stock as is on hand when a loss 
 occurs, although nothing is said in the policy concerning 
 the matter. This is implied from the nature and usages of 
 
 ° Wood's Fire Insurance 327 ; May ' Peoria &c. Ins. Co. v. Annapaw, 
 
 V. Buckeye Ins. Co., 25 Wis. 291. 51 111. 283. In Neio York Gaslight Co. 
 
 « Sims V. State Ins. Co., 47 Mo. 54 ; v. Mechanics' F. Ins. Co., 2 Hall (N. 
 
 Livingston v. Maryland Ins. Co., 7 Y.) 108, the policy covered gas- 
 
 Cranch (U. S.) 506; Citizens' Ins. Co. metres and fixtures belonging to and 
 
 V. McLaughlin, 53 Penn. St. 485 ; rented by the assured, placed or to 
 
 Pulton Ins. Co. v. Milner, 23 Ala. 420 ; to be placed in the buildings, stores 
 
 Olendale Woolen Co. v. Protection Ins. or dwellings of subscribers, for seven 
 
 Co., 21 Conn. 19 ; Hancox v. Fishing years. It was held that the liability 
 
 Ins. Co., 3 Sumn. (U. S.) 132; Niag- of the insurers was not limited to 
 
 ara Ins. Co. v. De Gh-aff, 12 Mich, such property in building at the 
 
 124; Archer v. Merchants' &c. Ins. Co., time when insurance was made, but 
 
 43 Mo. 434 ; Franklin Ins. Co. v. to all such property placed and 
 
 Vpdegraff, 50 Penn. St. 350; Leggett remaining in such buildings at the 
 
 V. Ins. Co., 10 Rich. (S. 0.) 292. time when the loss occurred. 
 
PRIVATE USAGES, CUSTOM OF BROKERS, &C. 289 
 
 the risk and the usual course of the business." A policy 
 insuring a certain class of property or business, covers all 
 articles incident to or usually or necessarily used in the 
 prosecution of the business.^ So, too, a policy may be 
 extended to cover goods not strictly within the premises 
 named, if a usage is shown to regard contiguous places as 
 within the description. Thus, a policy covering a stock " of 
 ship timber in a ship yard," was held to embrace timber 
 lying on the sidewalks near the yard, a usage being shown 
 to regard the street as a part of the yard,^ and the same rule 
 was adopted in a Massachusetts case before referred to as to 
 the word " room " used in an application for insurance.^ 
 Not only is the insurer bound by all customs or usages 
 prevailing in reference either to the business or property 
 insured, but also by all general or special usages incident to 
 the risk,^ and all the usages of a trade are considered as a 
 part of the contract and are to be regarded in construing it.* 
 The insurer is bound to know that certain hazards are inci- 
 dent thereto,^ and that certain practices exist among those 
 engaged in it.^ If the policy is ambiguous, evidence is 
 admissible to explain it, and this may be done when neces- 
 sary, by proving the course of business and the incidents 
 thereof,^ even though it does not establish or amount to a 
 
 ' Lane v. Maine L. Ins. Co., 12 Me. whaling ships, an insurance upon an 
 
 44 ; Sawyer v. Dodge Co. Mu. Ins. Co., outfit covers one-fourth the catch- 
 
 37 Wis. 504: ; Draper V. Hudson River ing. Mary v. Whaling Ins. Co., Q Met. 
 
 Ins. Co., 17 N. Y. 424; Den v. Hope (Mass.) 354. Also a custom that in 
 
 Ins. Co., 1 Hall (N. Y.) 166. case of re-insurance, the warranty 
 
 ^ SpratleyY. Hartford Ins. Co., IDiW is confined to the condition of the 
 
 (U. S. C.) 392; Seaney v. Central L. risk at the date of the original policy, 
 
 Ins. Co., Ill Mass. 540 ; Lichenstein v. Foster v. Mentor Life Assn., 3 CI. & B!. 
 
 ■Baltic F. Ins. Co., 45 111. 301. 48. 
 
 ' Webb V. Nat'l F. Ins. Co., 2 Sandf. * Hancox v. Fishing Ins. Co., ante. 
 
 (N. Y.) 447. ° Harper v. Albang Ins. Co., ante. 
 
 ^Daniels v.Hud. River Ins. Co., a.nte. ^Citizens' Ins. Co. v. McLaughlin, 
 
 '" Harper v. Albany Ins. Co., 17 N. ante. 
 
 Y. 194. Thus it is competent to show '' Fabri v. Phenix Ins. Co., 55 'N.Y. 
 
 that among insurers and owners of 133. 
 
 18 
 
290 PRIVATE USAGES, CUSTOM OF BECKERS, &C. 
 
 general usage,^ for a contract may be affected by proof either 
 of a general usage or by similar acts of the parties in like 
 cases,* but neither custom nor usage can be set up to over- 
 come a plain provision in a policy which fairly excludes a 
 usage, as when the contract provides a mode of payment and 
 delivery, a custom to pay and deliver in a different mode 
 cannot be shown,^ nor can it be shown to put an interpreta- 
 tion upon a contract inconsistent with its language,^ nor to 
 vary it.^ But even though inconsistent with the printed 
 conditions of a policy, a usage or custom may be shown, not 
 to alter or vary the contract, but to give effect thereto by 
 showing that the conditions were waived because when a 
 usage or custom incident to a risk is shown the insurer is 
 presumed to know of and contract in reference to it, and the 
 only proof requisite to charge them therewith is simply the 
 fact that the usage existed, for they are bound to know of it, 
 and the law imputes knowledge thereof to them.* Although 
 a policy provides that a, night watch shall be kept in the 
 building, unless the proviso is specific as to the kind of watch 
 to be kept, it is held that the condition is not of such a watch 
 as is suitable according to the usages of the business, is kept,^ 
 and at such times and during such periods as a watchman is 
 usually kept in such establishments, and evidence of the 
 usage of other similar establishments is admissible to deter- 
 mine whether the condition has been kept.^ Thus, where the 
 policy contained a clause, " a watchman kept upon the prem- 
 ises," it was held that the assured was entitled to recover, 
 
 8 1 Duer on Ins. 57; Wood on Fire * 2Iay v. Buckeye Ins. Co., 25 ^^'is. 
 
 Insurance, 848. 291 ; Oithmis' Ins. Co. v. McLaughlin, 
 
 " Grem v. Farmer, 5 Burr. 2221; 53 Penn. St. 485 ; Foiderv. ^Elna Ins. 
 
 Rushforth V. Hadfield, 6 East. 619. Co., 7 Wend. (N. Y.) 270 ; Finley v. 
 
 1 Duncan v. Qreen, 43 Iowa 679. Lycoming Ins. Co., 31 Penn. St. 311. 
 
 ^ Marks V. Elevator Co., 4S Iowa, dS7. ^ 3Iay v. Buckeye Im. Co., ante; 
 
 ^ Partridge v. Ins. Co., 15 Wall (U. Priegen v. Exchange L. Ins. Co., 6 'V^'is. 
 
 S.) 373; Ins. Co. v. Wright, 1 Id. 456; 89; Crocker y. People' sins. Co., 8 Cush. 
 
 Barnard v. Kellogg, 10 U. S. 383 ; Cash (Mass.) 79. 
 
 V. Hinkle, 36 Iowa 623. « Crocker v. People's Ins. Co., ante. 
 
PRIVATE 'usages, CUSTOM OP BROKERS, &C. 291 
 
 althougli there was no watchman on the premises when the 
 fire occurred, and had been none for ten days previous, the 
 shop having been unused during that period, and it being 
 shown that in such establishments it was usual not to keep a 
 watch when the shop was not in operation.'' " What is com- 
 mon and usual," said Shaw, C. J., in the last named case, 
 "under given circumstances, is evidence tending to show 
 what is reasonable." But the language may be such as to 
 exclude the usage. Thus, where the question in the appli- 
 cation was, " Is there a watch kept nights ?" and the answer 
 was, " There is a watchman nights," the court held that this 
 clearly bound the assured to keep a watchman every night, 
 including Sunday nights, and excluded evidence of a usage 
 in similar establishments not to keep a watch Sunday night.^ 
 Where a stock of goods are insured, as " a stock of goods 
 such as are kept in a country store,"' or simply " a stock of 
 groceries,"^ the terms carry with them the right to keep any 
 article or class of articles usually kept as a part of such 
 stocks, whether the keeping of such articles is expressly pro- 
 hibited in the printed portion of the policy or not.^ Thus, 
 in a New York case,^ the policy covered a printing press, 
 types, negatives, " and their stock as photographers, includ- 
 ing engravings and materials used in their business." The 
 policy also contained a clause prohibiting the keeping or 
 use of kerosene in a building containing the property 
 insured, except by consent in writing. The plaintiffs used 
 in their business as photographers, a portable kerosene 
 stove, such as was generally employed in the business, and 
 
 ' Crocker v. People's Ins. Co., ante. ^ Niagara Ins. Co. v. De Oraff, 12 
 
 " Glendale Manufacturing Co. v. Mich. 124. 
 
 Protection Ins. Co., 21 Conn. 19 ; First ^ Archer v. Merchants' Ins. Co., 43 
 
 National Bank v. Insurance Co. of N. Mo. 434; l^^itmarsh v. Conway F. Ins. 
 
 America, 50 N. Y.45 ; Pipley v. ^tna Co., 16 Gray (Mass.) 657; Pindar v. 
 
 Ins. Co., ante. Contra, see May v. Kings Co. Ins. Co., 36 N. Y. 648. 
 
 Buckeye Ins. Co., a,nte. ' Hall v. Ins. Co. of N. America, 58 
 
 ^ Prudar v. Continental Ins. Co., 47 N. Y. 292. 
 N. Y. 114. 
 
292 PRIVATE USAGES, CUSTOM OF BEOKEES, &C. 
 
 while so using the stove, and from its use, the premises 
 were set on fire and the loss occurred. It was proved that 
 a portable gas lamp or stove might as well have been used 
 in the business, but that a kerosene stove was customarily 
 used. The company was held liable for the loss, Grover, J., 
 remarking: "When a policy is issued upon a stock of goods 
 in a specified business, the underwriter is presumed to know 
 what goods are usually kept in that business. When a policy 
 is issued as in the present case, upon the materials used in 
 the business of pliotography, it includes all such as are in 
 ordinary use, although some other things might be substi- 
 tuted therefor.* In a Missouri case^ the effect of the usages 
 of a business upon the conditions of the policy, was well 
 illustrated. In that case a policy was issued upon a wagon 
 maker's shop and materials. The policy prohibited the use 
 of camphene, benzine, &c. The plaintiff had a paint shop 
 in connection with his business where the wagons were 
 painted, and had a half barrel of benzine in the shop for 
 mixing the paints. A loss occurring, payment was resisted 
 on the ground that the keeping of benzine was in violation 
 of the conditions of the policy. But the court held that if 
 a paint shop was a usual part of a wagon maker's shop, and 
 paints were used for manufacturing wagons, and were cus- 
 tomarily kept in the building and used for that purpose, 
 and benzine was customarily used for mixing paints, the 
 printed conditions were plainly in opposition to the written 
 clause, and should be rejected.^ In a Pennsylvania case 
 
 » Harper y. New York Ins. Co., 22 a stock of goods described in the 
 
 N. Y. 444; Steinbachv. La Fayette Ins. policy as "dry goods, groceries, &c," 
 
 Co., 54 Id. 90 ; Elliott v. Hamilton Ins. such as are usually kept in a general 
 
 Co., 13 Gray (Mass.) 139. retail store. The policy prohibited 
 
 ^ Archer v. Merchants' L. Ins. Co., the keeping of gunpowder, saltpetre, 
 
 48 Mo. 434. or phosphorus. The plaintiffs kept 
 
 ° In Phenix Ins. Co. v. Taylor, 5 gunpowder for sale, and the coin- 
 Minn. 492, the same rule was adopted pany set up the breach of this con- 
 as to gunpowder. In that case the dition in defence. The court held 
 plaintiff procured an insurance upon that, if gunpowder and the articles 
 
PEIVATE USAGES, CUSTOM OF BROKEKS, &C. 293 
 
 which is referred to elsewhere' and the main facts in which 
 are there given, the effect of a usage of a trade upon the 
 condition of a policy was strikingly illustrated. In that case 
 the policy provided that benzole, in quantities not exceeding 
 five barrels, might be kept in "a small shed entirely detached 
 from the other buildings, situated on the rear end of the lot, 
 about one hundred feet from the main building, and no where 
 else on said premises." The policy covered '^ihe buildings 
 of their tannery and patent leather manufactory." Benzole 
 was an indispensable article in the prosecution of the busi- 
 ness, and, while it was stored in the building referred to, yet, 
 it was the custom of the workmen to carry it into the build- 
 ing in open pails as often as wanted, and on the morning of 
 the fire a workman carried a pail of it into the building, 
 when it almost instantly ignited and produced the loss. The 
 insurer insisted that this method of carrying benzole into the 
 factory operated as a breach of the condition of the policy, 
 and excused them from liability. The plaintiff" proved that 
 the method adopted by him, was the customary method in 
 similar establishments, and, the fact of custom being found, 
 the court held that there was no breach of the condition, as 
 the insurer was bound to know of such custom, and, in the 
 absence of anything in the policy excluding it, must be 
 regarded as having waived the condition to the extent of 
 
 prohibited were usually kept in gen- the statute in Michigan prohibited 
 
 eral retail stores, there was no breach. the keeping of liquors. The court 
 
 In Niagara Ins. Co. v. Be Graff, 12 held that if the liquors usually 
 
 Mich. 124, it was held that where a formed a part of a stock of "gro- 
 
 policy covered a stock of "groceries" ceries," the policy was not avoided, 
 
 and contained a condition prohibit- and that the fact that the statute 
 
 ing the keeping of alcohol and spirit- prohibited their being kept, would 
 
 uous liquors, the latter articles were not aid the defendants, citing as to 
 
 kept by the assured. In an action for the effect of the statute, Armstrong 
 
 a loss the insurer set up this breach v. Tolen, 11 Wheat. (U. S.) 258; The 
 
 in defence. The plaintiff showed Ocean Jns. Co. v. PaMei/s, 13 Pet. (U.S.) 
 
 that such articles "usually" formed 157; Hibbard v. People, 4 Mich. 125. 
 
 a part of such stocks. The defendant ''Citizens' Ins. Co. v. McLaughlin, 
 
 insisted that this usage of the trade 53 Penn. St. 485. 
 could not affect the policy, because 
 
294 PEIVATE USAGES, CUSTOM OF BEOKEKS, &C. 
 
 the custom. Woodard, J., in delivering the opinion of the 
 court, said: "The argument on behalf of the company is, 
 that the policy, both in letter and spirit, meant to confine 
 the benzole to the shed on the rear of the lot, and to exclude 
 it from any other part of the preiiiises ; that in carrying it 
 from the shed across the yard in open buckets, and setting 
 it down in a room with the door open, was an abuse of the 
 privilege granted by the company, which, if it could have 
 been anticipated, would have prevented their taking the risk; 
 and that such use of it was keeping it elsewhere than in the 
 shed, and was, therefore, a palpable violation of the covenant." 
 The answer which the learned judge made to this argument 
 was substantially as follows : " You insured a patent leather 
 manufactory ; you knew, for you were bound to know, that 
 benzole was ordinarily used in such factories; you stipu- 
 lated that five barrels of it might be kept on hand near 
 to the factory, and the necessary presumption is that you 
 meant that it might be kept for use in that factory, as 
 the article is ordinarily used in similar factories. If, 
 therefore, it was kept in the place stipulated, and used 
 according to the custom of trade, it was one of the risks 
 covered by the policy."*' Another striking illustration of 
 the effect of usage upon a policy of insurance is to be found 
 in a Connecticut case,® in which it was held that, although a 
 certain use of premises might increase the risk, yet if it was 
 temporary, and only an ordinary use, and one that the 
 insurer must have known was incident thereto, the policy 
 was not avoided. Thus, the buildings were described as 
 barns, to which was added, " all the above described barns 
 are used for hay, straw, grain unthreshed, stabling and 
 shelter." The night before the fire, the assured had placed 
 
 ^ Qirard Ins. Co. v. Stephenson, 1 N. Y. 26 ; Washinqton F. Ins. Co. v. 
 
 Wright (Penn.) 198; Harper v. Al- Davidson, 80 Md. 91. 
 bany City Ins. Co., 1 Bos. (N. Y.) 520; » Billings v. Tolland Co. Ins. Co., 20 
 
 app'djCourtof Appeals, 17 N.Y. 194; Conn. 139. 
 Buchanan v. Exchange F. Ins. Co., 61 
 
PRIVATE USAGES, CUSTOM OF BEOKERS, &C. 295 
 
 two bushels of lime in one of the barns, and six or eight 
 pails of water, both the water and lime being placed in a 
 large tub, for the purpose of preparing the lime for rolling 
 in it some wheat which he was about to sow upon his farm. 
 A short time previous to the fire, he had commenced paint- 
 ing his house, and the painter had mixed his paints in the 
 same room, and at the time of the fire there were in it, an 
 oil barrel containing about a gallon of oil, a keg of white 
 lead and a pot with about a pint of mixed paint. The 
 insurer held that by this use of the premises, the risk had 
 been increased and consequently that he was absolved from 
 liability under the policy. Waite, J., in commenting upon 
 the effect of usage in the ordinary use of property in con- 
 struing warrantees or conditions in policies, said: "The acts 
 done by the plaintiff are set forth in the motion, so that one 
 can see what they were, and whether they were a departure 
 from the common and ordinary use of such buildings. We 
 very well know that farmers in this State are in the habit of 
 using their barns for a variety of purposes, connected with 
 their agricultural business, besides that of storing their hay 
 and stabling their cattle. Their barns are frequently used 
 as a shelter for their wagons, plows, sleds and other farming 
 implements. When the plaintiff procured the insurance to 
 be effected on the buildings, it is not to be presumed that he 
 meant to deprive himself of their common and ordinary use, 
 or that the defendants by their policy intended any such 
 thing. And, excepting so far as there is an express prohibi- 
 tion in relation to the use of them, the understanding of the 
 parties undoubtedly was, that the common and ordinary use 
 of them was to be continued in the same manner as if the 
 policy had never been issued."^ In all cases, in determin- 
 ing whether or not there has been an increase of the risk 
 such as avoids the policy, the court will ascertain so far as 
 possible what the parties must be presumed to have contem- 
 
 1 Dobson V. Sotheby, 1 Mac. & M. 90. 
 
296 PRIVATE USAGES, CUSTOM OF BBOKERS, &C. 
 
 plated when the insurance was made, and this involves a con- 
 sideration of the usages and incidents of the risk, because if 
 the use was warranted by the usages or ordinary incidents of 
 the risk, it does not come within the prohibition, for the 
 parties must be presumed to have contemplated the use,^ 
 
 As to Marine Insurance— Voyage Commenced. 
 
 Sec. 139. In relation to marine insurance, we have an 
 instance of this legal annexation of incidents. One of these 
 is that in every voyage-policy, whether it be on a ship or on 
 goods, a warrant of seaworthiness at the commencement of 
 the risk is implied. These further conditions are also under- 
 stood as forming a tacit part of the contract — that the voyage 
 is to be commenced in a reasonable time, that all material cir- 
 cumstances are to be disclosed. If these conditions are not 
 performed, this omission will render the policy void, whether 
 the omission has been due to fraudulent motives or not.(g') 
 These decisions are only given by way of illustrating the 
 method by which usage annexes incidents to written con- 
 tracts. It will be understood that the method of such annex- 
 ation is precisely the same, and that there is a close analogy 
 in this respect between the usages of trade and the Common 
 Law — an analogy which we have endeavored to keep before 
 
 2 Washington F. Ins. Co. v. David- Y.) 226; Duncan v. Sun Ins. Co., 6 
 
 sore, 30 Md. 91 ; New York w. Hamilton Wend. (N. Y.) 488; Aroher v. Mer- 
 
 Ins. Co., 10 Bos. (N. Y.) 537. The chants' L. Ins. Co., ante; Hai-per v. 
 
 rule is well expressed in Hall v. Ins. Albany City Ins. Co , ante; O'Neill v. 
 
 Co. of N. America, ante, that, where Buffalo Ins. Co. ,S'N.Y. 122; Buchanan 
 
 a policy is issued upon the materials v. Exchange F. Ins. Co., 61 N. Y. 26 ; 
 
 used in a business, it includes and Phenix Ins. Co. v. Taylor, 5 Minn, 
 
 authorizes the use of all such mate- 492 ; Harper v. N. Y. F. Ins. Co. 22 
 
 rials as are in ordinary use in the - N. Y. 441 ; Franklin Ins. Co. v. TJpde- 
 
 business, although by the printed graff, 4S Penn. St. 450; Steinbaok v. 
 
 clauses of the policy, the keeping or La Fayette Ins. Co., 54 N. Y. 90 ; 
 
 use thereof is prohibited, and al- Whitmarsh v. Conway F. Ins. Co., 16 
 
 though other materials might as Gray (Mass.) 359; Bryant y. Pough- 
 
 well be substitued therefor. Lang- keepsielns. Co., 17 N. Y. 200. 
 don V. Equitable Ins. Co., 1 Hall (N. 
 
 [q] Gibson v. Small, 4 H. of L. Gas. 398, per Parke, B. 
 
PRIVATE USAGES, CUSTOM OF BROKERS, &C. 297 
 
 the reader's mind, as it seems, in our opinion, to explicate 
 the real nature of each. 
 Necessity for Usage. 
 
 Sec. 140. It will be remembered, too, that the incidents 
 which are annexed by the Common Law are very few in 
 number, and that there may be innumerable useful incidents 
 in relation to every trade and business, and every transac- 
 tion which is made in the course of these, which might well 
 be annexed, and which, therefore, fall within the province 
 of that handmaid of the Common Law — usage — to supply. 
 The nature of these may be understood from what has 
 already been said, and the scope of the authority of usage 
 will also be appreciated from the various cases of treating 
 the admissibility of evidence of such customs. 
 
 Usage and Legal Enactments— Usage Cannot Control a Statute. 
 Sec. 141. One other matter may be alluded to in relation 
 to usage, and that is its relation to legal enactments. We 
 have already seen that customs which are an invention for 
 the convenience of those who are employed in trade, and are, 
 in fact, the natural growth of law in organization, when they 
 are judicially recognized cease to be customs, provable by 
 evidence ; but rise to the level of laws evidenced by the leg- 
 islative authority, which resides in the judges or by the ex- 
 istence of a statute which has embodied the former usage, (r) 
 It follows, therefore, that when the courts have ascertained 
 and declared a usage, it is alterable only by legislature, and 
 it will not affect such a recognized usage to prove that a 
 usage of trade which varies its terms actually exists. Hence 
 it is that we have the well known rule that a custom opposed 
 to a statute is bad,(s) and that no usage or custom can be set 
 up for the purpose of controlling the rules of \aw.{t) 
 
 (r) Ante, p. 2, 5, et seq. {t) Hinlon v. Looke, 5 Hill (N. Y.) 
 
 (s) Ante, p. 26 and 27, and see 437 ; see Thomson v. Ashton, 14 John. 
 
 Walker v. Transportation Co., 3 Wall 316 ; Beirne v. Doed, 5 N. Y. 95 ; 
 
 (U. S.) 150 ; Winter v. United States, Wheeler v. Newbold, 16 N. J. 392 ; 
 
 Hemps. (U. S.) 344. Huggins v. Moore, 34 N. J. 417 ; Du- 
 
298 PEIVATE USAGES, CUSTOM OF BKOKERS, &C. 
 
 Instances in which Usages are Bad. 
 
 Sec. 142. Where the statute provides what a certain 
 officer shall do, and how he shall do it, so far as his duty is 
 dependent upon the statute, evidence of a usage or custom 
 to discharge this duty in another or different manner is not 
 admissible.^ Thus, where by statute a note must be presented 
 for payment and protested by a notary, a presentment by a 
 clerk is not good, although such a usage among notaries may 
 have existed for a long time. None of the official duties of 
 an officer (as a notary) can be delegated to another, except 
 when so provided by statute, and neither a custom or usage 
 can confer any such power.* Nor can the custom or usage 
 of a trade be shown to control a statute that conflicts there- 
 with,^ and -it is said that a local usage cannot be shown to 
 control the well settled rules of the common law relating 
 thereto.® In an English case,'' it was sought to introduce 
 evidence of a custom among merchants to treat an indorse- 
 ment of a bill of exchange without the words " or order " as 
 restrictive, when by the courts such indorsements had been 
 treated as negotiable when the bill itself was negotiable. 
 Lord Mansfield said, " The point now in question has already 
 been solemnly settled, both in the Court of King's Bench 
 and in Common Pleas, and therefore witnesses ought not to 
 have been examined as to the usage, after such a solemn 
 determination of what was the law." In a New York case,* 
 
 guid V. Edtvards, 50 Barb. (N. Y.) John. (N.Y.) 327; Bowetiv. Newel,l& 
 288 ; Woodruff V. Merchants' Bank, 25 Barb. (N. Y.) 391. 
 Wend. (N. Y.) 674; Frith v. Baker, 2 
 
 ^ The Commeraial Bank of Kentucky Campbell, 64 N. Y. 353; Higgins v. 
 
 V. Varnum, 3 Lans. (N. Y.) 86 ; Super- Moore, 34 Id. 417 ; Bewees v. Lockhart, 
 
 visors V. Va.n Glief, 1 Hun. (N. Y.) 454. 1 Tex. 535 ; Schiefflin v. Harvey, Auth. 
 
 * Onandago Bank v. Bates, 3 Hill (N. Y, ) 56 ; Strong v. Bliss, 6 jMet. 
 
 (N. Y.) 53. (Mass.) 393 ; Home v. Mutual L Ins. 
 
 ^ New York Firemen's Ins. Co. v. Co., 1 Sandf. (N.Y. Superior Gt.) 137. 
 
 My, 2 Cow. (N. Y.) 678; Bank of '' Ediaw. The East India Co., 2 Burr. 
 
 Utica V. Wager, Id. 712. 1216. 
 
 ^ Minnesota Cent'l R. R. Co. v. Mor- ' See Thompson v. Ashton, 14 John. 
 
 gan, 52 Barb. (N. Y.) 2171 ; Bissell v. (N. Y.) 316. 
 
PEIVATE USAGES, CUSTOM OF BROKERS, &C. 299 
 
 the court say, " No custom in the sale of any particular 
 description of goods can be admitted to control the general 
 rules of law ; such a principle would be extremely perni- 
 cious in its consequences, and render vague and uncertain all 
 rules of law.® The reason for this doctrine is, that after a 
 rule has been recognized at law, it is no longer under the 
 control of usage or custom, and the adjudication is the proper 
 evidence of it.^ But I apprehend that the rule seemingly 
 established by these cases is, after all, to be taken subject to 
 qualifications, and instances may certainly arise where even 
 a usage of trade may control the rules of the common law. 
 It is certainly competent for the parties to make a usage a 
 part of any contract, except where it is prohibited by statute 
 or contrary to sound public policy, by express agreement to 
 that effect. If a rule of the common law can be renounced 
 by an express, agreement, can it not also be renounced by an 
 implied agreement ? It would be absurd to say that it could 
 not be, and the instances are quite numerous where long con- 
 tinued and well settled usages have been held to be good^ 
 although in direct conflict with the rules of the common law. 
 Thus, the custom of Gavelkind and Borough-English grew 
 up and became valid in spite of the fact that they were con- 
 trary to the rules of the common law. When it is said that 
 a mere usage cannot be shown to control or vary the rules 
 of the common law, the courts almost daily act upon a con- 
 trary rule, as we shall show hereafter, and the rule may be 
 stated thus : "Where the rules of the common law relating to 
 a particular transaction are well settled, it will be presumed 
 that the parties contracted in reference thereto, but this pre- 
 sumption may be overcome by proof of a well established 
 
 ° Wheeler v. Newbold, 16 N. Y. 392 ; cial law cannot be overcome by 
 
 Duguid v. Edwards, 50 Barb. (N. Y.) proof of the usage or understanding- 
 
 288; Higgins v. Moore, 34 N. Y. 417; of banks contrary thereto. Security 
 
 Bieme v. Dord, 5 N. Y. 95; Allen v. Bank v. Bank of the Republic, 67 N, 
 
 Merchants' Bank, 22 Wend. (N. Y.) Y. 458. 
 
 215; Raskins v. Warren, 115 Mass. '^Nelson, J., in Allen v. Merchants' 
 
 514. A well settled rule of commer- Bank, 22 Wend. (N. Y.) 215. 
 
300 PRIVATE USAGES, CUSTOM OF BROKERS, &C. 
 
 usage of the trade or business to which the transaction, of 
 such long standing and uniform application, as to leave no 
 doubt that the parties contracted in reference to it, rather 
 than in reference to the rules of the common law, and it then 
 becomes a question of fact for the jury to find whether the 
 parties intended to adopt the usage or the general law,^ and 
 the question turns upon the quantum of proof rather than 
 upon its conflict with the common law,^ and where they vary 
 the presumption is undoubtedly prima facie in favor of the 
 intention to adopt the general law, but this may be overcome 
 by proof that unmistakably shows a contrary intention. 
 The proof to establish the adoption, or rather the presump- 
 tion of the adoption, of a usage in opposition to the general 
 law, must of course be strong. The usage must be shown to 
 be uniform and well known to both parties, or of such long 
 standing and notoriety as to warrant a presumption of knowl- 
 edge, and show that the parties must have had it in view 
 when they entered into the contract.^ This rule necessarily 
 
 ^ Gordon v. Little, 8 S. & R. (Penn.) to the contrary. Again in a Georgia 
 
 583; lialsey \ . Brown, 'i D&y [Gomi.) case, Latimer v. Alexander, 14 Ga. 
 
 -S46; Wild v. Gotham, 10 Mass. 366. 259, the court say, "A mere local 
 
 In Borton v. Beekman, 0. T. E. 760, it usage in a small part of the country 
 
 ■was held to be no objection that a cannot change the law and give a 
 
 -custom is not conformable to the person a remedy against a person, 
 
 •common law. when the law does not, and gener- 
 
 ^ Blanchard v. Hilliard, 11 Mass. ally it will be found that the idea 
 
 85; Middleton v. Haywood, 2 N. & that crops out in some of the cases 
 
 McCord. (S. C.) 9 ; Renner v. Colum- that a usage or custom that conflicts 
 
 ■bia Bank, 9 Wheat. (U. S.) 581. with the common law, cannot pre- 
 
 * In Isham v. Fox, 7 Ohio, 317, the vail, is after all nothing more than 
 
 most sensible view of this question a well recognized rule that the com- 
 
 -was taken. In that case the court mon law will prevail against a mere 
 
 held that, in the absence of any usage, unless the usage is of such a 
 
 statutory regulation, a rule of com- chiiracter and of such longstanding 
 
 mercial law has been adopted by the and notoriety as to indicate that the 
 
 •courts of last resort in a State, the parties must have contracted in ref- 
 
 usage will henceforth be held to con- erenoe to it." Dewees v. Lookhart, 1 
 
 form thereto throughout the State, Tex. 535 ; Schiefflin v. Harvey, Auth. 
 
 ■and this can only be rebutted by clear (N. Y.) 56; Strong v. Bliss, 6 Met. 
 
 proof of aimifonn and settled local usage (Mass.) 393; Hortie v. Mutual Ins. 
 
PKIVATE USAGES, CUSTOM OF BROKERS, &C. 301 
 
 results from that salutary and inflexible rule of construction 
 tliat gives effect to the true intent of the parties to a con- 
 tract, and leads the courts, for the purpose of ascertaining 
 it, to look to the subject-matter of the contract and the 
 attendant circumstances and surroundings, and as a custom 
 or usage is only allowable as a means of arriving at the real 
 intention of the parties, and never to thwart it, it follows as a 
 matter of course that where a usage and the common law con- 
 flict, effect is to be given to the one or the other as the weight 
 of the evidence bearing upon the question preponderates, and 
 the fact that a conflict exists between the usage and the com- 
 mon law does not, if the usage is reasonable and not opposed 
 to public policy, necessarily render the usage inoperative.^ 
 "A custom used upon a certain reasonable cause, depriv- 
 eth the common law."® A custom known and acquiesced in 
 by a. party affected by it, will excuse the performance of a 
 duty prescribed by law.'' If it is shown, or may fairly be 
 presQmed, that the parties contracted with reference to a 
 custom existing in the place where the transaction was 
 entered into, the general law must give way to the custom.* 
 The rights of parties are to be determined by the law, and 
 not by any local custom or usage, unless there is proof that 
 such custom or usage is certain, general, frequent and so 
 ancient or notorious as to be generally known and acted upon^ 
 
 Cb., 1 Sandf. (N. Y.) 137. As sustain- the extent of determining the true 
 
 ing the proposition advanced in the intent of the parties in a matter in 
 
 text, see Leach v. Perkins, 17 Me. 462; which the contract itself is silent, or 
 
 Caldwell \. Dawson, 4 Met. (Ky.) 121; where a doubt arises from the lan- 
 
 Oovemor v. Withers, 5 Gratt (Va.) guage used therein, Ihe courts all 
 
 24. hold them admissible, if clearly 
 
 ^ Isham y . Fox, a,nte ; Von Scmidt proved uniform and reasonable. 
 
 V. Huntington, 1 Cal. 55. There is a The Schooner Reeside, 2 Sumn. (U. S.) 
 
 disposition in some of our courts to 567. 
 
 limit the eflfeot of usages and their ° Co. Lit. 113-115. 
 
 office, on the ground that they often ' Oovenor v. Withers, 5 Gratt. 
 
 arise from mistaken notions of the (Va.) 24. 
 
 rights of parties, and are dangerous " Fulton Ins. Co. v. Milner, 23 Ala. 
 
 innovations upon the law. But, to 420. 
 
302 
 
 PRIVATE USAGES, CUSTOM OF BBOKEES, &C. 
 
 and unless it shall be adjudged reasonable.^ Usage is evi- 
 dence of the construction given to the law, and, when it is 
 established and uniform, it regulates the rights and duties 
 of those who act within its limits,-^ and ought to be respected 
 by the courts.^ It will be found by reference to the cases 
 where proof of usages has been denied, and the courts have 
 spoken of the usage as conflicting with the general law, that 
 the rejection was based upon the unreasonableness of the 
 usage, or its lack of uniformity or notoriety, rather than 
 upon the circumstance that it conflicted with the common 
 law. In other words, the usage was really insufficient in its 
 elements to override the legal rule,^ either because it was 
 local and not sufficient to charge the parties with knowledge 
 of it,* or because it was unreasonable and lacking in those 
 elements of justice and fair dealing which are requisite to 
 warrant the courts in giving effect to it, rather than to. the 
 general rules of law f or because its existence was not estab- 
 
 ^ Leach v. Perkins, 17 Me. 462; 
 Caldwell v. Dawson, 4 Mete. (Ky.) 121. 
 
 ^ United States v. Richardson, 
 Crabbe (U. S.) 563. 
 
 ^ Wilcoeks v. Phillips, 1 Wall., Jr. 
 (U. S.), 47. 
 
 ■'' Divightv. Boston, 12 Allen (Mass.) 
 216 ; Eagar v. Atlas Ins. Co., 14 Pick. 
 (Mass.) 141 ; Stover v. Whitman, 6 
 Binn. (Penn.) 416 ; Frith v. Barker, 2 
 Johns. (N. Y.) 335. 
 
 ^ Higgins v. Moore, 34 N. Y. 417; 
 Bissell V. Campbell, 54 Id. 353; Min- 
 nesota &e. R. R. Co. V. Morgan, 54 
 
 Barb. (N. Y.) ; Murlatt v. Clary, 
 
 20 Ark. 251. 
 
 ° In Dodd V. Farlow, 11 Allen 
 (Mass.) 426, this was well illustrated. 
 In that case it was sought to set up 
 a usage that in the sale of certain 
 kinds of goods there is an implied 
 ■warranty that they are merchant- 
 able, and that, if they are sold by a 
 broker, he may bind his principal 
 
 by an express warranty that the 
 goods are merchantable, although 
 he had no express authority to give 
 such warranty, and the court held 
 that the usage was invalid, because 
 it was unreasonable to extend the 
 powers of a broker in that manner. 
 In Reed v. Richardson, 98 Mass. 216, 
 an attempt was made to extend the 
 liability of a common carrier by 
 proof that, by the usage of the port, 
 in order to constitute a delivery of 
 water-borne goods by the carrier, it 
 is necessary for a receipt to be given 
 by the consigner or his agent, and 
 that until such receipt was given the 
 liability of the carrier continues. 
 The court very justly held that this 
 usage was unreasonable, and conse- 
 quently invalid. See also Tremble v. 
 Cramell, 17 Mich. 493 ; Freary v. Cook, 
 14 Mass. 488. If a usage or custom 
 be never so general or uniform, yet 
 if it is unreasonable it will not be 
 
PRIVATE USAGES, CUSTOM OF BKOKERS, &C. 
 
 303 
 
 lished as a uniform rule in the particular matters to which 
 it related f or because, being local, its existence was in fact 
 unknown to one of the parties ought to be affected by 
 
 upheld ; and a custom, although 
 adopted by every person in the 
 country engaged in a certain busi- 
 ness, if it is unreasonable, dangerous 
 or productive of injury, the fact of 
 its generality cannot in any degree 
 excuse an act because in conformity 
 to it. Hill V. Portland &c. R. R. Co., 
 55 Me. 438. Thus, where a person 
 is sued for negligence he cannot set 
 up a custom or usage for parties to 
 he negligent engaged in that busi- 
 ness if the act complained of is 
 really negligent. Thus, where an 
 action was brought against a ferry- 
 man for the loss of a horse and 
 wagon because of his failure to put 
 up a chain at the end of his boat, it 
 was held that he could not be per- 
 mitted to show a custom at other 
 ferries to put up the chain at the 
 request of passengers, and not other- 
 wise — Miller v. Pendleton, 8 Gray 
 (Mass.) 547 — because such a. custom 
 is not only unreasonable, but also 
 opposed to the policy of the law. 
 While, however, such proof is not 
 admissible to excuse liability abso- 
 lutely, yet it is admissible upon the 
 question of ordinary prudence as 
 one means of determining what pru- 
 dent men do under similar circum- 
 stances, but is by no means decisive. 
 In Barber v. Brace, 3 Conn. 14, in 
 ■commenting upon this question, 
 Hosmer, J., said: "The gist of the 
 complaint is, that the defendant 
 mismanaged in the stowage and did 
 not exercise ordinary care. Now," 
 he added, " proof that he did what 
 prudent men usually do, repels every 
 imputation of neglect, want of care 
 and inattention to the obligations of 
 
 the contract. Thus the rule of the 
 common law and the usages of mer- 
 chants are in entire harmony on the 
 subject under discussion, and both 
 of them coincide with the charge to 
 the jury." Baxter v. Leland, 1 
 Blatchf (U. S.) 526. The general 
 rule is that a custom or usage is not 
 legal if contrary to morality, religion 
 or the law of the land [Holmes v. 
 Johnson, 42 Penn. St. 159), and a 
 custom of the country which sanc- 
 tions that which by statute is made 
 unlawful, as taking usurious interest, 
 &c., is unreasonable and invalid. 
 Greene v. Tyler, 39 Penn. St. 369 ; N. 
 Y. Fireman's Ins. Co. v. Ely, 2 Cow. 
 (N. Y.) 678; Dunham v. Dey, 13 
 Johns. (N. Y.) 40; 16 Id. 367. Nor 
 can a usage be set up to establish 
 that which is malum in se. Bryant 
 V. Commercial Ins. Co., 6 Pick. (Mass.) 
 131. Thus, it would not excuse a 
 tailor for keeping all the cloth fur- 
 nished by a customer for a suit of 
 clothes because such is the custom, 
 nor a miller for taking twice the 
 amount of grain allowed as toll 
 because such is the general practice, 
 (fee, &c., because such acta ure malum 
 in se, and prohibited by law, and for 
 that reason the custom is bad. See 
 Snowden v. Warder, 3 Rawle (Penn.) 
 110. 
 
 e Halls V. Howell, 1 Harp. (S. C.) 
 427; Bowen v. Newell, 8 N. Y. 190; 
 Adams v. Otterbach, 15 How. (U. S.) 
 539 ; The Albatross v. Wdyne, 16 
 Ohio 513 ; Flynn v. Murphy, 2 E. D. 
 S. (N. Y. C. P.) 378 ; Leach v. Perkins, 
 17 Me. 462; Taylor v. Ketohum, 5 
 Robt. (N. Y.) 507. 
 
304 PEIVATE USAGES, CUSTOM OF BE.OKEES, &C. 
 
 it.' In an English case' will be found the groundwork for the 
 doctrine, that a usage can never be received that is contrary 
 to a settled rule of law.^ The doctrine as applied in that 
 case was undoubtedly correct, because the custom set up was 
 unreasonable. In that case, upon the trial at Nisi Prius, 
 Lord Mansfield received evidence of the custom of mer- 
 chants, that, in the case of a bill of exchange payable to 
 order, the endorsement was restrictive, unless that also con- 
 tained the word order. Upon a motion for a new trial, it 
 was held that, the law being settled, the custom of merchants 
 could not control it ; that is, could not be permitted to sub- 
 vert the law of the land, not that the parties might not make 
 the endorsement restrictive by special agreement, or by the 
 customary course of some particular business, making an 
 exception in their own ease, leaving the general law to take 
 its course. In that case the bill was drawn in the East 
 Indies, and the evidence came mainly from bankers in 
 London. Their opinion was admitted to overturn a rule of 
 law which prevailed in the whole British Empire, but 
 throughout the whole commercial world. In a later Eng- 
 lish case^ the true doctrine was advanced. In that case the 
 court agreed that evidence of usage was admissible to 
 enlarge the rights of carriers. The defendant claimed a 
 lien of the goods carried, not only for the price of their 
 carriage, but also for a balance due from the parties for 
 freight upon goods previously carried. The common law 
 
 ' Halford v. Adams, 2 Duer. (N. Y. Auth. (N. Y.) 56; Beweei v. Lookhart^ 
 
 SnpeiioiCt.) 4:71; Diiguid V.Edwards, 1 Tex. 535; Strong v. Bliss, 6 Met. 
 
 50Barb. (N.Y.) 62; Sipperlyv.Stew- (Mass.) 393; Harris v. Carson, T 
 
 art, Id. 288; Minnesota C. R. R. Co. v. Leigh (Va.) 632; Winder v. Blake, 4 
 
 Morgan, 52 Id. 217. Aflf'd by Court Jones (N. C.) L. 362; Henry v. Risk^ 
 
 of Appeals. 1 Dall {U. S.) 1^65 : Barksdale v. Brown, 
 
 « Edie V. East India Co. 1 N. & McCord. (S. C.) 517 ; Brown v. 
 
 * See for such propositions FniTi v. Jackson, 2 Wash. (U. S. C. C.) 24; 
 
 Barker, 2 John. (N.Y.) 335; Winthrop Homer v. Dmr, 10 Mass. 26; Stoever 
 
 V. Union Ins. Co., 2 Hall (N. Y.) 9; v.lF7wiman,6 Binn. (Penn.) 626; JYeuj- 
 
 Eagan v. Atlas Ins. Co., 14 Pick, bold v. Wright, 4 Rawle (Penn.) 195. 
 
 (Mass.) 141 ; Schiefflin v. Harvey, ^ Rushforth v. Hadfield, 7 East 225.. 
 
PRIVATE USAGES, CUSTOM OF BEOKEES, &C. 305 
 
 denies to carriers a lien for a general balance, but a large 
 amount of evidence was received to show that custom and a 
 particular course of trade, among a particular class of car- 
 riers — including those in question — to overcome the law. 
 The jury found against the defendants, but the evidence was 
 so formidable that they moved for a new trial. Chambre, J., 
 who tried the cause, put it to the jury, whether the usage 
 was so general as to warrant them in presuming that the 
 parties who delivered the goods he carried, knew of it ; if 
 not, the general rule of law would entitle the plaintiffs to a 
 verdict. All the judges concurred that a custom of this kind 
 which is quoad hoc to supersede the general law of the land, 
 should be clearly proved, and the interested encroachments of 
 persons engaged in a particular trade, watched with great 
 jealousy. Not one of them disapproved the rules under 
 which the case went to the jury, and Lord Ellenborough 
 and Grose, J., put it on the ground of a usage so general 
 and so uniformly acquiesced in for a length of time, that 
 the jury would feel themselves constrained to say it entered 
 into the minds of the parties and formed a part of the 
 contract. On the whole, it would seem that usage may 
 change the rules of the common law, but that in such 
 cases it is hard to establish it so that a court will 
 feel warranted in saying that the parties contracted in 
 reference to it, rather than in reference to the general rules 
 of law, but there seems to be no good foundation for a rule 
 that would prevent parties from making the attempt.^ In 
 reputable courts in this country proof of a usage among 
 banks has been permitted to be shown, to demand payment 
 of an endorsed note or bill on the fourth day after it became 
 due, and an endorser has been held liable under such usage, 
 when by the common law he was discharged because the 
 demand was not made upon the third day.^ Local usage has 
 
 ^ Cowen, J., in GHbson v. Culver, 17 " Rennet- v. Bank of Columbia, 9 
 
 Wend. (N. Y.) 308. As to bills of Wheat. (U. S.) 581 ; Loring v. Gur- 
 exchange. Yeates v. Pirn, 1 Holt 95. ney, 5 Pick. (Mass.) 16; Bank of Col- 
 
 19 
 
306 PKIVATE USAaES, CUSTOM OF BKOKEES, &C. 
 
 been held admissible to show that, by the custom of a certain 
 city, certain kinds of negotiable securities, as a certificate of 
 deposit, is not entitled to grace, and that, when it falls due 
 upon Sunday, it becomes payable on the preceding Saturday, 
 and this too, although the general law of the State as to 
 negotiable paper is otherwise.* The ground upon which 
 evidence of such usage is admitted, is, that it aids in ascer- 
 taining and carrying into effect the real intention of the par- 
 ties. So too it has been held competent to show that, by the 
 custom of a certain bank at which a note is negotiated, four 
 days of grace are allowed, although by the general laws it 
 was entitled to but three. Thus in a case heard in the 
 United States Supreme Court,® in which the question was 
 very carefully considered, it was held that, where by the 
 custom of a bank, notes negotiated by it were presented for 
 payment and protested upon the fourth day after they became 
 due, the indorser is bound, although by the general law but 
 three days of grace are given. In this case the custom was 
 known to all the parties to the note, but it has been held in 
 the same court that where such a usage of a bank is estab- 
 lished and shown to be invariable, all the parties to the note 
 are bound by it, whether they had personal knowledge of 
 such usage or not.^ "In the case of such a note," says the 
 
 umbia v. Magruder's Heirs, 6 H. & J. that day fell on Sunday to demand 
 
 (Md.) 172; Bank of Utica v. Smith, payment and give notice to the en- 
 
 18 Johns. (N. Y.) 230; Bank of Wash- dorser on Monday, is not sufficient 
 
 ington v. Triplett, 1 Pet. (U. S.) 25 ; to change, as to such bank, the gen- 
 
 Leavitt v. Simes, 3 N. H. 14 ; Kennebec eral law requiring demand to be 
 
 Bank v. Page, 9 Mass. 155 ; Weld v. made on Saturday. Adams v. Otter- 
 
 Oorham, 10 Id. 356; Blanchard v. 6ac/i, 15 How. (U. S.) 539. 
 
 Hilliard, 11 Id. 85. , « Mills v. Bank of United States, 11 
 
 * Kilgore v. Bulkley, 14 Conn. 362. Wheat. (U. S.) 430. In Jones v. Fales, 
 
 But see contra, Merchants' Bank v. 4 Mass. 245, it was held that where. 
 
 Woodruff, 6 Hill (N. Y.) 174. by the general law, a note is entitled 
 
 5 Renner v. Bank of Columbia, 9 to three days of grace on demand 
 
 Wheat. (U. S.) 582. But it is held made upon the maker on the tirst 
 
 that proof of the usage of a certain day, and a notice of non-payment 
 
 bank for two years to hold notes upon the last day of grace is suffi- 
 
 until the fourth day of grace, and if cient to hold the endorser if such 
 
PRIVATE USAGES, CUSTOM OF BROKERS, &C. 
 
 307 
 
 court, "the parties are presumed by implication to agree to 
 be governed by the usage of the bank at which they have 
 chosen to make the security itself negotiable. The doctrine 
 of these cases has been extended to bills of exchange, drawn 
 on a person residing in a place where such a usage is estab- 
 lished, and placed in a bank for collection which has estab- 
 lished such a usage, although not in terms made payable at 
 such bank.' So evidence of a usage in New York city, has 
 been held admissible to show that a check drawn upon a 
 bank and made payable on a day subsequent to its date, 
 is not entitled to grace, and therefore that a demand 
 and protest upon the day mentioned in it for payment, is 
 sufficient to charge the endorser.* While, in the absence 
 
 is shown to be the usage of the 
 bank at which it is payable. " This 
 usage," says Parsons, C. J., in the 
 course of his opinion, " is evidence 
 of the defendant's agreement, proper 
 to be submitted to the jury to infer 
 from it the agreement of the defend- 
 ant. Evidence of this kind, and for 
 this purpose, is not to establish new 
 law, but to prove that the defendant 
 has waived a condition implied by 
 law for his benefit, and has con- 
 sented to other terms, to which, 
 without question, he might have 
 expressly agreed." See also, sus- 
 taining this doctrine, Widgery v. 
 Monroe, 6 Mass. 459; Whitwell v. 
 Johnson, 17 Id. 452; Lincoln &c. 
 Bank v. Poffe, 9 Id. 155, and Blan- 
 chard v. Hilliard, 11 Id. 85. In War- 
 ren Bank v. Parker, 8 Gray (Mass.) 
 221, a bank in Boston, with whom a 
 note was placed for collection, gave 
 notice to the maker, before the note 
 fell due, according to the usage in 
 Boston, of the day when the note 
 would be payable, and requested 
 him to come and pay it, and the 
 note remained in the bank through- 
 
 out the banking hours of the day on 
 which it became due. It was held 
 that if the maker was a trader and 
 accustomed to transact business at 
 the bank, his consent to the general 
 usage which made such notice suffi- 
 cient might be shown, and if shown 
 rendered any other demand imma- 
 terial. 
 
 ' The Bank of Washington v. Triplett, 
 1 Pet. (U. S.) 26. 
 
 ' Osborne v. Smith. N. Y. Superior 
 Court decided in 1837 {Mss.) Jones, 
 C. J, in delivering the opinion of the 
 court in this case says, "The objec- 
 tion to the custom drawn from its 
 supposed collision with the common 
 law cannot, in our view of it, be sus- 
 tained without impugning some of 
 the best settled principles applicable 
 to mercantile law usages that consti- 
 tute a large portion of commercial 
 rules, and to that source solely the 
 allowance of days of grace on mer- 
 cantile paper is to be traced. No rule 
 of common law or statutory provi- 
 sion impressed that feature upon the 
 character of commercial paper. It 
 had its origin in usage, and to usage 
 
308 
 
 PRIVATE trSAGES, CUSTOM OF BKOKEES, &C. 
 
 of any statute regulating the matter, the usages of a locality, 
 or of a bank, may control in the matters stated, yet a 
 usage dispensing with the requirements of the law as to 
 demand of payment and protest is had, because it impairs 
 the implied contract raised by indorsement. Thus, in a New 
 Hampshire case,^ where it was shown that the bank kept 
 
 it owes its existence. It has now 
 become, it is true, where it is applic- 
 able, parcel of the contract, and is 
 no longer an indulgence of grace, 
 but is, and long has been, a matter 
 of right. A bill or a note payable at 
 sixty days is in legal eflfect payable 
 in sixty-three days ; but this custom 
 does apply to every species of com- 
 mercial paper ; in its application to 
 bills it does not exist at all places, 
 and it varies moreover at different 
 places in the time or grace it allows ; 
 and this case shows, I think, that it 
 does not embrace checks on banks, 
 though made payable at a day cer- 
 tain subsequent to their date, and 
 notwithstanding their resemblance 
 to inland bills of exchange. In 
 Bomen v. Newell, 8 N. Y. 190, a usage 
 by banks in Connecticut to treat 
 drafts as checks, and so not entitled 
 to grace, was held bad as contraven- 
 ing the general law. 
 
 * Piscataqica Exchange Bank v. Car- 
 ter, 20 N. H. 246. That usage cannot 
 be resorted to, to contradict the plain 
 terms of an express contract, is illus- 
 trated by numerous cases. In Curtis 
 v. Brewer, 17 Pick. (Mass.) 513, it was 
 stipulated by contract that a vessel 
 should be built, caulked, finished 
 and ready for the rigger to complete 
 his work, launched and delivered 
 afloat in the harbor at a specified 
 time. It was the custom to rig ves- 
 sels on the stocks. It was held that 
 the builder was bound to have the 
 vessel ready for the rigger, so that she 
 
 might be completed and launched at 
 the day specified. In Atkins v. Howe, 
 18 Pick. (Mass.) 16, upon the sale of 
 certain property, it was stipulated 
 that all claims for damages must be 
 made within three days. Evidence 
 was held not admissible that, accord- 
 ing to the custom of the trade in 
 Boston, goods were returned by pur- 
 chasers at auction and received by the 
 owners, and an allowance made after 
 the expiration of three days, if within 
 a reasonable time after the sale. In 
 Snelling v. Hall, 107 Mass. 134, in 
 an action on a written contract for 
 the sale of coal, providing for the 
 shipment of the coal at the buyer's 
 option, between certain dates, evi- 
 dence is not admissible of a usage 
 in the coal trade that vmder like 
 contracts, the option must be exer- 
 cised in time to allow all the coal to 
 be shipped between the dates named 
 in the contract. And, even though the 
 parties agreed by parol, at the time 
 the written contract was executed, 
 that it should be subject to a certain 
 usage, conflicting therewith, such 
 evidence is not admissible, in the 
 absence of fraud, or mistake, be- 
 cause it is irrebuttably presumed 
 that the parties embraced in their 
 conti-act their intention in reference 
 to the subject matter, and that they 
 did not intend that anything differ- 
 ent from what is expressed therein, 
 should be done or omitted to be 
 done. Oelricka v. Fm-d, 23 How. (U. 
 S.) 49. This rule does not exclude 
 
PRIVATE USAGES, CUSTOM OF BKOKEKS, &C. 
 
 309 
 
 posted a notice that all indorsers of notes to the bank would 
 be required to waive demand and notice, it was held that the 
 
 evidence to show that by the usages 
 of the business to which the con- 
 tract relates certain terms employed 
 therein, have acquired a peculiar 
 meaning, different from that ordi- 
 narily attached thereto. Senett v. 
 Shumway, 102 Mass. 365; Miller v. 
 Stevens, 100 Id. 518 ; Keirer v. Webb, 
 125 Id. 88. Thus it may be shown 
 that it is the usage among owners 
 of whale ships and underwriters to 
 treat an insurance upon "outfits" as 
 covering one-fourth of the catchings. 
 Macy V. Whaling Ins. Co., 9 Met. 
 (Mass.) 354. So where goods are sold 
 "with all faults,'' it may be shown 
 that by the usage of the trade these 
 words have acquired a peculiar 
 meaning, and what that meaning is. 
 Whitney Y. Boardman, 118 Mass. 242. 
 Evidence has also been admitted in 
 a libel suit to show that the words 
 " State cop " is a slang expression 
 meaning a deputy State constable. 
 Cann v. Morgan, 107 Mass. 199. So to 
 show, where a contract is for a cer- 
 tain article of which there are sev- 
 eral kinds, which kind was intended. 
 Bradford v. Manly, 13 Mass. 139; 
 Hogins v. Plympton, 11 Pick. (Mass.)' 
 97; Woods v. Satvin, 4 Gray (Mass.) 
 822. But this is only the case, when 
 the evidence is explicatory of the 
 contract and does not contradict it. 
 The rule in this regard was well ex- 
 pressed by Allen, J., in Lawrence v. 
 Maxwell, 53 K Y. 21. "Evidence," 
 said he, "may be given of a custom 
 or usage in explanation and applica- 
 tion of particular words or phrases, 
 and to aid in the interpretaiion oi the 
 contract, but not to derogate from 
 the rights of the parties or to import 
 into the contract new terms and con- 
 
 ditions, or vary the legal effect of the 
 transaction." See also Robinson v. 
 United States, 13 Wall (U. S.) 365. 
 Coleridge, J., in Brown v. Bryne, 3 E. 
 & B. 703, perhaps gives the clearest 
 and best illustration of this rule. 
 "In all contracts," says he, "as to 
 the subject matter of which a known 
 usage prevails, parties are found to 
 proceed with the tacit assumption 
 of those usages ; they commonly re- 
 duce into writing the special partic- 
 ulars of their agreement, but omit 
 to specify those known usages which 
 are included however as of course, 
 by mutual understanding ; evidence 
 therefore, of such usage is receiva- 
 ble. The contract in truth is partly 
 express and in writing, partly im- 
 plied or understood and unwritten. 
 But in these cases a restriction is 
 established on the soundest princi- 
 ples, that the evidence received, 
 must not be a particular which is 
 repugnant to, or inconsistent with, 
 the written contract. Merely that it 
 varies the apparent contract, is not 
 enough to exclude the evidence; for 
 it is impossible to add any material 
 incident to the written terms of the 
 contract without altering its effect 
 more or less; neither in the con- 
 struction of a contract among mer- 
 chants, tradesmen or others, will the 
 evidence be excluded because the 
 words are, in their ordinary mean- 
 ing, unambiguous, for the principle 
 of admission is, that words perfectly 
 unambiguous in their ordinary mean- 
 ing are used by the contractor in a 
 different sense from that. What words 
 more plain than ' a thousand,' ' a 
 week,' 'a day?' Yet the cases are 
 familiar in which ' a thousand ' has 
 
310 
 
 PEIVATE USAGES, CUSTOM OF BROKEES, &C. 
 
 fact that a person who had procured a note indorsed by him 
 to be negotiated there, had been a customer at the bank for 
 
 been held to mean twelve hundred ; 
 ' a week ' only a week during the 
 theatrical season ; ' a day ' a working 
 day. In such cases the evidence 
 neither adds to, nor qualifies, nor 
 contradicts the written contract; it 
 only ascertains it by expounding the 
 language.'' See upon this point, and 
 admitting and adopting the rule, 
 Stewart v. Smith, 28 111. 397 ; Wallo v. 
 Bailey, 49 N. Y. 467 ; Ba,ron v. Plaide, 
 7 La. An. 229; Grant v. Maddox, 15 
 M. & W. 737 ; Cochran v. Ritberg, 3 
 Esp. 121 ; Jolly v. Young, 1 Id. 186 ; 
 Myers v. Sari, 3 E. & C. 306 ; Simpson 
 V. Margitson, 11 Q. B. 32; Lowe v. 
 Lehman, 15 Ohio St. 179 ; Whitney v. 
 Boardman, 118 Mass. 242 ; Schneider 
 V. Heath, 3 Camp. 506 ; Henshaw v. 
 Bobbins, 9 Met. (Mass.) 83; Shepherd 
 V. Kain, 5 B. & Aid. 240; Miller v. 
 Stevens, 100 Mass. 518; Bottomley v. 
 Forbes, 5 Bing. N. C. 121 ; Mason v. 
 Skurry, Park. Ins. 245 ; Buckle v. 
 Knapp, L. R. 2 Exchq. 125 ; Spicer 
 v. Cooper, 1 Q. B. 424 ; Mackenzie v. 
 Dunlap, 3 Macq. 26 ; Miller v. Lether- 
 ington, 6 H. & M. 278; Bowman v. 
 Horsey, 2 M. & Raf. 85 ; Shove v. Wil- 
 son, CI. & P. 355; Rushford v. Hatfield, 
 7 East. 225 ; Fiifeora v. Randall, 67 N, 
 Y. 338 ; Banium v. Gatliff, 11 CI. & F, 
 45 ; Falbri v. Jns. Co., 55 N. Y. 133 ; 
 Jaurnu v. Borden, Park. Ins. 245 : 
 Kidston v. Ins. Co., L. E. 1 C. P. 535 
 Ober V. Carson, 62 Mo. 209 ; Gray v 
 Harper, 1 Story (U. S.) 574; Carter v. 
 Coal Co., 77 Penn. St. 286; Neighan 
 V. Bajii:, 25 Id. 288 ; Z>a Costa v. Ed- 
 wards, 4 Camp. 143 ; Ganson v. Madi- 
 gan, 15 Wis. 144 ; Peisch v. Dickson, 1 
 Mas. (U. S.) 11 ; Whitmarsh v. Conway 
 Ins. Co., 16 Gray (Mass.) 359; Barton 
 V. McKelway, 22 N. J. L. 165 ; Gossfej- 
 
 V. £a^fe Sugar Refinery, 103 Mass. 
 331 ; Noyes v. Can field, 29 Vt. 79 ; S/iep- 
 /lerrf V. Kain, 5 B. & Aid. 240 ; Outh- 
 bert V. dimming, 11 Exchq. 405; lyaii 
 \. Fairbanks, Brayt. (Vt.) 77 ; John- 
 stone V. Usborne, 11 Ad. & El. 549; 
 FaHarace v. Dewar, 1 Camp. 503; 
 Cowles V. Garrett, 30 Ala. 341 ; Dmfce 
 V. Goree, 22 Jd. 409; Moran v. Pra- 
 </ier, 23 Wall. (U. S.) 499; Johnson v. 
 Jms. Co., 39 Wis. 87; Taylor v. SataZ- 
 m^re, 6 La. Ann. 154; iam6 v. Klaus, 
 30 Wis. 94; Eldredge v. Smii/i, 13 
 Allen (Mass.) 140; Soulier v. Keller- 
 man, 18 Mo. 509 ; Locke v. Rowell, 47 
 N. H. 46 ; Saj-nes v. Ingalls, 39 Ala. 
 193 ; Farrar v. Stackpole, 6 Me. 154 ; 
 JVte/i V. OtriJCTi/er, 43 Barb. (N. Y.) 
 401 ; Stone v. Bradbury, 14 Me. 185 ; 
 JVbyes v. Canfield, 27 Vt. 79 ; Broad- 
 well V. Broadwell, 1 Gill. (Md.) 599 
 Carey v. Bright, 58 Penn. St. 70 
 Stroud v. i^Vi^k, 11 Barb. (N. Y.) 300 
 Williams v. TFbod, 16 Md. 220 ; Bowen 
 V. ^roofo, 25 Penn. St. 210; Hart v. 
 Humniett, 18 ^'t. 127 ; Colwell v. iaw- 
 rence, 24 How. Pr. (N. Y.) 324; EhU 
 V. Chettenango Bank, 24 N. Y. 548; 
 Marc V. Kupfer, 34 111. 287; JeJiJij/ 
 imd Co. V. iowc*-, 11 Cal. 194 ; Hite 
 V. Staie, 9 Yerg. (Tenn.) 357; Cahat 
 V. Winsor, 1 Allen (Mass.) 146 ; Bean 
 V. TAe Belfast, 40 Ala. 184 ; Sampson 
 V. Gazzam, 6 Port. (Ala.) 123 ; JMa. 
 Co. V. Wright, 1 Wall. (U. S.) 156; 
 Sanford v. Rawlings, 43 111. 92; CoZ- 
 Hus V. DriscoU, 34 Conn. 43 ; Reynolds 
 V. Jourdan, 6 Cal. 108 ; Sturgis v. Cti7'i/, 
 2 Curtis (U. S. C. C.) 3S2; Webb v. 
 Plummer, 2 B. & Aid. 746 ; Hudson 
 V. £de, L. R. 3 Q. B. 412 ; Myers v. 
 Walker, 24 111. 133; Barnard v. iTei- 
 %^, 10 How. (U. S.) 270 ; Spicer v. 
 Hooper, 1 Q. B. 424 ; Elion v. Larking, 
 
PRIVATE USAGES, CUSTOM OF BEOKEES, &C. 
 
 311 
 
 several years, did not warrant the admission of parol evi- 
 dence of this usage, because the effect of it was to change 
 the contract implied by law from the indorsement. It may 
 be said that in the absence of an express provision in the 
 note itself, a custom or usage that deprives a party thereto of 
 the benefits of a statutory provision relating thereto cannot 
 be set up. Thus, in a Massachusetts case,'^ it was held that 
 a usage among banks to regard a bank post note, payable at 
 a future day certain, as payable without grace, there being 
 no express stipulation to that effect in the note itself, was 
 
 8 Bing. 198 ; Chaurand v. A nkersiine, 
 Peake 43; Planche v. Fletcher, 1 
 Doug. 521 ; Merrick v. McNally, 26 
 Mich. 374; Hughes v. Gordon, 1 
 Bligh. 287 ; Leidtnan v. Schultz, 14 C. 
 B. 287 ; Clinan v. Cooke, 1 Sch. & L. 
 22; Whiltemore v. Weiss, 33 Mich. 
 348; George v. Jay, 19 N. H. 544; 
 Patch V. Ins. Co., 44 Vt. 481; New 
 Jersey Co. v. Boston Co., 15 N. J. Eq. 
 418 ; Dent v. S. S. Co., 49 N. Y. 390 ; 
 Astor V. Ins. Co., 7 Cow. 202 ; Dudley 
 V. Vose, 114 Mass. 34 ; Elliott v. Secor, 
 60 Mo. 163; Martin v. Union Pacific 
 R. P. Co., 1 Wy. Ter. 143; Kirkpai- 
 rick V. Boiven, 69 Ga. 450; Eneas v. 
 Hoops, 42 N. Y. Superior Ct. 517 ; 
 Stewart v. Smith, 59 Tenn. 231 ; Car- 
 michael v. White, 11 Hus. R. (Tenn.) 
 262; Hearn v. Equitable Safety Ins. 
 Co., 3 Cliff. (U. S. C. C.) 328; Single- 
 ton V. Mutual Ins. Co., 66 Mo. 63; 
 Miller v. Burke, 68 N. Y. 615 ; Farm- 
 ers' &e. Bank v. Erie K. R. Co., 72 Id. 
 188; Rankin v. American Ins. Co., 1 
 Hall (N. Y.) 619; Harris v. Rath- 
 bun, 2 Keyes (jST. Y.) 312; Wilcox v. 
 Wood, 9 Wend. (N. Y.) 346; Collen- 
 der V. Dinsmore, 55 N. Y. 200 ; Dick- 
 inson V. Water Commissioners, 2 Hun. 
 (N. Y.) 615; Arthur v. Roberts, 60 
 Barb. (N. Y.) 580; Sturm v. Williams, 
 6 J, & S. (N. Y.) 325 ; Fowler v. .Mina 
 
 2ns. Co., 7 Wend. (N. Y.) 270; Dow 
 V. Whiiten, 8 Id. ]60; Gorrissen v. 
 Perrin, 27 L. J. C. P. 29; Brown v. 
 Brooks, 25 Penn. St. 210; Dana v. 
 Fielder, 13 N. Y. 40; Allan v. Corn- 
 stock, 17 Ga. 554 ; Russian Steam, Nav. 
 Co. V. Silva, 13 C. B. N. S. 610; Bli- 
 ven V. N. E. Screw Co., 23 How. (U. 
 S.) 420; Falkner v. Earle, 3 B. & S. 
 360. In construing wills, the courts 
 will regard the technical meaning 
 of certain words acquired by usage, 
 and this must be done to carry into 
 effect the intention of the testator. 
 Hawley v. Northampton, 8 Mass. 3 ; 
 Needham v. Ide, 5 Pick. (Mass.) 510; 
 Ide V. Ide, 5 Mass. 500; Myers v. 
 Edely, 47 Barb. (N. Y.) 263. And in 
 determining whether the technical 
 or ordinary sense was intended by 
 the testator, the court will consider 
 which would best effectuate the tes- 
 tator's intention. Den v. McMurtie, 
 15 N. J. L. 276. But where the 
 meaning attached to words can be 
 ascertained from the will itself, that 
 meaning should be given to them in 
 construing the will, although con- 
 trary to correct usage. Carnagy v. 
 Woodcock, 2 Munf (Va.) 234. 
 
 ^ Perkins v. Franklin Bank, 21 Pick. 
 (Mass.) 483. 
 
312 PRIVATE USAGES, CUSTOM OF BROKERS, &C. 
 
 invalid, because it conflicted with the statute of the State, 
 which provides that all notes payable at a future day certain 
 shall be allowed grace, unless otherwise stipulated in the note. 
 In a New York case,^ it was held that a usage among banks 
 that a bill of exchange drawn upon a bank and accepted by 
 the cashier and payable at a day certain is not entitled to 
 grace, is invalid because it deprives the parties of certain 
 legal rights that are implied in all such transactions. In a 
 later case, before the Court of Appeals,^ it was held that a 
 usage of banks in another State to regard drafts drawn upon 
 them and payable at a day certain, as checks, and therefore, 
 not entitled to grace, could not be shown, because contrary 
 to the general rules of law.* Where the statute confers cer- 
 tain rights upon the parties to negotiable paper, as that cer- 
 tain days of grace shall be allowed, and how and when 
 demand and protest shall be made, this right cannot be over- 
 come by a mere custom or usage, so as to make a demand or 
 protest made in a different manner from that provided by 
 statutes operative, at least, unless such facts and circum- 
 stances are shown as to establish the fact that the parties 
 impliedly contracted in reference to such usage f therefore 
 it was held in the last case that evidence that notaries in 
 New York city, in their protests and registers usually 
 state a demand made upon a firm, to have been made 
 upon one of the firm, without naming him, was inadmissible. 
 There is no question but that the parties to a note or 
 bill may expressly waive the statutory or common law 
 requirements as to demand, protest, &c., and unless the 
 statute otherwise provides, they may do so impliedly, and 
 in such cases proof of the usages of a bank at which it 
 is discounted, or at which it is made payable, varying the 
 
 ^Merchants Bank v. Woodruff, 6 584, where the facts are fully set 
 
 Hill (N.Y.) 174. forth, and the rules applicable in 
 
 'Bowm V. Newell, 8 N. Y. 190. such cases are well stated. 
 
 * See also same case, Bowen v. ° Otsego County Bank v. Warren, 18 
 
 Newell, 5 Duer. (N. Y. Superior Ct.) Barb. (N. Y.) 291. 
 
PKIVATE USAGES, CUSTOM OF BEOKEKS, &C. 313 
 
 legal method, is admissible, and if brought home to the 
 knowledge of the parties, so far as to establish their assent 
 thereto, it is binding upon them.^ Where a note is made 
 payable in specific articles "at wholesale prices at the 
 factory," or other place of manufacture or production, it is 
 competent to show that by the usage of the trade a price 
 other than the wholesale market price was meant.' The 
 usages of a business have been held admissible to show the 
 intention of the parties under a covenant in a lease over ten 
 years, and to excuse a party from a literal performance 
 thereof. Thus, where A. leased to B. a tract of land in a 
 mountainous country, and B. stipulated to allow and pay to 
 A. as part of the rent, for a quantity of bark to be taken by 
 him from the timber on the premises, "not less than 800 nor 
 Tnore than 1000 cords a year," during the continuance of the 
 term, the sum of one dollar for each cord taken, and that he 
 would take " at least 800 cords of bark each year." B. 
 actually took much less than 800 cords of bark each year, 
 but A. insisted that B. was bound to pay him for at least 800 
 cords each year, and produced evidence to show that there 
 was more than enough bark left upon the premises to make 
 up that amount. B. showed, however, that he had taken all 
 the bark upon the premises that was accessible, and which 
 by the usual and customary means which are employed for 
 the purpose of taking bark from such lands by those who car- 
 ried on that business in the section of country where it was 
 situated, except about 50 cords, and that the balance was 
 upon or near a high peak of the Catskill mountains, about 
 1000 feet higher than the surrounding land, and was wholly 
 inaccessible to teams of any kind, and that the bark thereon 
 could not by any reasonable or practicable means be taken 
 therefrom. The court held that the defendant was only liable 
 for what bark he had actually taken, and such a quantity in 
 
 * The Hartford Bank v. Stedman, 3 Mass. 85. 
 Conn. 489; Blanchard v, Hilliard, 11 ^ Awry v. Stewart, 2 Conn. 69. 
 
314 
 
 PRIVATE USAGES, CUSTOM OF BEOKEES, &C. 
 
 excess thereof not exceeding 800 cords a year, as was accessi- 
 ble and could have been taken by the use of the usual and 
 customary means employed for the purpose of taking bark 
 from such land by those employed in that business in the 
 section of country where it was situated.^ " This covenant," 
 said Church, J., "is to receive either a literal or a practical 
 construction. . . The defendant was bound to pursue a rea- 
 sonable and prudent course in fulfillment of his contract, 
 having reference to the situation of the timber, the pur- 
 poses and uses for which the bark was intended, and the 
 general usage of persons employed in such business in that 
 region." In a South Carolina case,** a usage of the river 
 
 * Livingston v. Tyler, 14 Conn. 493. 
 
 » Middleton v. Haywood, 2 N. & M. 
 (S. C.) 9. Evidence of a usage as to 
 the payment of commissions is, in 
 the absence of a special agreement, 
 admissible not only to show that 
 payment should be made, but also 
 to fix the amount. Thus in Turner 
 V. Yates, 16 How. (U. S.) 14, in an 
 action of debt against the sureties on 
 a bond conditioned for the repay- 
 ment of money advanced for the 
 purchase of packed meats for ship- 
 ment, and which were sent to Lon- 
 don, evidence of a usage to charge a 
 commission on advances on ship- 
 ments made to that port was held 
 admissible, and the usage, if proved, 
 was held to bind the parties. Good- 
 enow V. Tyler, 7 Mass. 36 ; Cooke v. 
 Fiske, 12 Gray (Mass.) 491. So evi- 
 dence of a usage is admissible to 
 show that certain parties are entitled 
 to certain deductions. Thus in an 
 action for freight by a ship-owner 
 against the indorsee of a bill of lad- 
 ing, to whom goods had been deliv- 
 ered at L,, and who had accepted 
 them, the bill of lading making them 
 deliverable, "he paying freight for 
 them five-eighths of a penny sterling 
 
 per pound, with 51. per cent, pri- 
 mage and average accustomed," it 
 was held that evidence was admissi- 
 ble that by the custom of L. the 
 plaintiff was entitled to a deduction 
 of three months' discount from the 
 freight ; though such custom applied 
 only to goods coming from certain 
 ports in the Southern States of 
 America. Brown v. Byrne, 3 El. & 
 Bl. 708. Where a usage to charge 
 commissions for certain services is 
 established, mere proof by others 
 engaged in the same business that it 
 is not their custom, and, so far as 
 they know, not the custom of others 
 to charge commissions for such 
 services, is not sufficient to defeat 
 the application of such usage or 
 prevent a recovery for such commis- 
 sions. Cooke v. Fiske, ante, nor can 
 such a usage be operative if it is 
 unreasonable or unjust. Thus, where 
 goods are consigned to a merchant 
 to sell, and he consigns them to 
 another merchant to sell, a custom 
 for each merchant to charge the 
 commission usually charged for a. 
 sale, is void, as being against com- 
 mon reason and common justice. 
 Spear v. Nejoell, Rutland Co., cited by 
 
PRIVATE USAGES, CUSTOM OF BROKEES, &C. 315 
 
 trade for the carrier of goods to look to the producer and 
 consignee alone for freight, was set up as a defence by the 
 person who sent them, and it was held that the usage 
 might be proved. Grant, J., in delivering the opinion in 
 the case, conceded that it would be difficult to make out a 
 usage in such cases, but that the matter of difficulty had 
 nothing to do with the question of competency. As to the 
 question of the reasonableness of sucli a usage, he said : 
 "Although at the first blush, the custom alleged may appear 
 unreasonable and such as ought not to prevail, this is by no 
 means conclusive that the usage is not a good one in law. 
 In such cases, recourse is had to artificial and legal reason, 
 and thus considered the usage may be shown to be bene- 
 ficial to the boatmen themselves. ... It is co7npetent for 
 a man or a body of men to renounce a common law right if 
 they think proper. And if, in relation to the river trade, 
 either from views of interest on the part of boat owners, or 
 other politic considerations, expediency has pointed out the 
 propriety, and usage has sanctioned it, then it might become 
 
 Redfield, J., in Burton v. Blin, 23 Vt. signed ; and because it would de- 
 
 151. The same rule was applied. prive the carrier of his lien upon the 
 
 Strong v. Grand Trunk R. R. Co., 15 cargo for freight to the extent of the 
 
 Mich. 206. In that case it was held amount thus improperly deducted, 
 
 that an alleged mercantile custom lu Kuhtman v. Brown, 4 Tiioh. (S.C.) 
 
 by which an intermediate consignee 479, A. advanced to B. a certain sum 
 
 is authorized to deduct from the on cotton shipped to Bremen, and 
 
 back freight earned any deficiency brought this action to recover the 
 
 in the cargo, as shown by a com- amount in which the net proceeds- 
 
 parison of the bill of lading with the fell short of tlie sum advanced. In 
 
 measurement of the carrier receiv- the amount rendered by A. against 
 
 ing it, was not to be a custom that B. were a multitude of small charges 
 
 the courts would recognize, as it besides commissions, such as bill 
 
 would prevent the carrier from show- brokerage and interest thereon, for 
 
 ing that there was error in the bill mending, handling, delivering, &o., 
 
 of lading, and would enable the in- &c. A verdict was rendered for the 
 
 termediate consignee to deduct for whole amount. Held, that the right 
 
 discrepancies between the bill of to make such charges depended so 
 
 lading and amount delivered, which much on commercial usage that the 
 
 occurred owing to erroneous mea- question was properly submitted to 
 
 surement or count when the bill was the jury. 
 
316 
 
 PRIVATE USAGES, CUSTOM OF BROKERS, &C. 
 
 the law by which the contract should be surrounded."^ 
 Without pursuing the inquiry farther, it may be stated as a 
 result of the authorities that a usage may be proved to influ- 
 ence the construction of the law, or to explain it,^ and that 
 it may be proved to influence the construction of a contract, 
 although contrary to some rule of general law, and when 
 proved it then becomes a question of fact whether the par- 
 ties contracted in reference to it, or, in other words, whether 
 they adopted it as a part of their contract in preference to 
 the general law as the rule for its interpretation, and this is 
 properly a question for the jury.^ While, as we have before 
 stated, we think that upon principle as well as upon high, 
 and, we may say, the great weight of authority, evidence of 
 
 ^ See Haywood v. Middleton, 3 Mc- 
 Cord. (S. 0.) 121. In Barksdale v. 
 Brown, 1 N. & M. 521, it was inti- 
 mated by Cheves, J., that the very 
 fact that a particular thing had been 
 sanctioned by usage so general, uni- 
 form and extensive as to raise the 
 presumption that all who deal in 
 reference to its subject are presumed 
 to have knowledge of it, and to con- 
 tract in reference to it, would in itself 
 afford very cogent evidence of its rea- 
 sonableness in the particular trade or 
 business to which it related, and that 
 if it was not objectionable in any other 
 point of view, the simple question 
 should be, is it a usage? In other 
 words, are not the persons to be 
 affected by the usage, better able to 
 judge as to its expediency and rea- 
 sonableness than a jury or the court? 
 But it may be said that this notion 
 does not prevail, and the question 
 of reasonableness is open to inquiry. 
 Eager v. Atlas Ins. Co., 14 Pick. 
 (Mass.) 141. 
 
 2 Frith v. Barker, 2 John. (N. Y.) 
 827 ; Markham v. Jandon, 41 N. Y. 
 235 ; Ewinff v. Dunbar, 1 Daly (N. Y. 
 
 C. P.) 408 ; Bowen v. Newell, 8 N. Y. 
 390; Schiefflin v. Harvey, Auth. (N. 
 Y.) 76 ; Sewalt v. Gibbs, 1 Hall (N. Y.) 
 602; Jones v. Bradner, 10 Barb. (N. 
 Y.) 193; Gibson v. Culver, ante ; Out- 
 wafer V. Nelson, 20 Barb. (N. Y.) 29 ; 
 Mackenzie v. Schmidt, 22 Am. Law 
 Register 448 ; Ruan v. Gardner, 1 
 Wash. (Va.) 145 ; Austin v. Williams, 
 2 Ohio 64; Winthrop v. Ins. Co., 2 
 Wash. (Va.) 7. 
 
 s Gordon v. Little, 8 S. & E. (Penu.) 
 533 ; Snowden v. Warden, 3 Eawde 
 (Penn.) 101; Halsey v. Brown, 3 Day 
 (Conn.) 346 ; Renner v. Columbia 
 Bank, 9 Wheat. (U. S.) 581; Middle- 
 ton V. Haywood, 2 N. & M. (S. C.) 9 ; 
 Jones V. Fales, 4 Mass. 245 ; Weld v. 
 Gotham, 10 Id. 866; Wood v. 117/- 
 cox, 9 Wend. (N. Y.) 349; Kennebec 
 Bank v. Page, 9 Mass. 155 ; Widgerley 
 V. Maunar, 6 Id. 449 ; Blanchard v. 
 Hilliard, 11 Id. 85 ; Kennebec Bank v. 
 Hammott, 9 Id. 159 ; Leach v. Perkins, 
 17 Me. 462; Caldwell v. Dawson, 4 
 Met. (Ky.) 121; Fulton Ins. Co. v. 
 Milner, 23 Ala., 420 ; Isham v. Fox, 7 
 Ohio St. 317. 
 
PRIVATE TJSAUES, CUSTOM OF BROKEKS, &C. 
 
 317 
 
 a usage is admissible even though it conflicts with the gen- 
 eral law, yet limitations upon this right exist, and instances 
 must often necessarily arise where the court must adjudge a 
 usage void. It may be stated as a rule, that if that which is 
 sought to be incorporated into the contract, by way of usage, 
 would be void as an express stipulation, it gains no additional 
 virtue because it has become a general practice,^ consequently 
 a usage sanctioning that which is malum in se,^ or is pro- 
 hibited by statute, as the taking of usurious interest, is with- 
 out validity.^ So also are those which contravene the policy 
 of the law, as those in restraint of trade,' or which sanction that 
 which is immoral, dishonest, fraudulent or unjust, as a usage 
 of a bank not to rectify a mistake in counting money unless 
 discovered before the person leaves the bank f or that permits 
 a person to recover for services never performed, or materials 
 never furnished f or which deprives a person of his title 
 to property without authority of contract or law ;^ or which 
 
 McMund, 5 Rand. 
 
 * Coleman 
 (Va.) 51. 
 
 ^ Snowden v. Warden, 3 Rawle 
 (Penn.) 107; Bryant v. Ins. Co., 6 
 Pick. (Mass.) 131; Holmes v. John- 
 son, 42 Penn. St. 159. 
 
 * Netv York Firemen's Ins. Co. v. 
 Ely, 2 Cow. (N. Y.) 278; Bank of 
 Utica V. Wager, 2 Id. 712; Dunham v. 
 Day, 13 John. (N. Y.) 40; Greene v. 
 Tyler, 39 Penn. St. 361. 
 
 ' Williams v. Gilman, 3 Me. 281. 
 
 " Gallatin v. Bradford, 1 Bibb 
 (Ky.) 209. 
 
 8 Whiteddes v. Meredith, 3 Yeates 
 (Penn.) 318. In Kendall v. Russell, 
 5 Dana (Ky.) 501, the plaintiff sued 
 to recover for laying brick in a build- 
 ing. The covenant under which he 
 performed the work compelled him 
 to lay as many brick as the defend- 
 ant might need to complete the 
 building, for which the defendant 
 bound himself to pay a certain sum 
 
 per thousand for each thousand of 
 brick laid. On the trial the plain- 
 tiff claimed to recover according to 
 a local custom, allowing the quan- 
 tity of brick laid to be ascertained 
 by assuming as a basis of calculation 
 that the walls of the building were 
 solid, and making no allowance for 
 openings therein, such as doors, 
 windows, &c. The court held that 
 the usage was not admissible. In 
 Jordan v. Meredith, 3 Yeates (Penn.) 
 318, a custom among plasterers to 
 charge for one-half the size of the 
 windows, at the price agreed upon 
 per foot or yard, was held unreason- 
 able and void. But a custom per- 
 mitting a person to charge a day 
 and a quarter for twelve and a half 
 hours' work, has been held valid 
 among carpenters. Hinton v. Locke, 
 5 Hill (N. Y.) 437. 
 
 ^ In Macomber v. Parker, 13 Pick. 
 (Mass.) 175, a brick yard was let to 
 
318 
 
 PRIVATE USAGES, CUSTOM OF BEOKEKS, &C. 
 
 releases an employee from the duty of giving his entire and 
 exclusive attention to the business of his master, and allows 
 him to carry on business in competition with his employer ; 
 or one which releases a party from joint liability with a party 
 with whom he has become jointly liable under a contract;^ or 
 excusing a manufacturer of articles from the implied war- 
 ranty against latent defects, raised by the law;^ or which 
 permits a factor to violate the positive instructions of his 
 principal f or indeed any custom which contravenes a statute, 
 the policy of the law or the express provisions of a contract.^ 
 From what has been said, and the general tenor of the 
 authorities cited, it may be fairly stated that, prima facie, all 
 contracts are to be understood as containing an implied refer- 
 ence to the general law, but that this presumption may be 
 overcome by proof of such a state of facts as fairly rebuts this 
 
 H. by two persons wlio were the 
 owners thereof, under a contract 
 that he should hire the workmen 
 and manufacture bricks, give his 
 own time and services and pay a 
 certain sum for every thousand 
 briclis made, as rent. The owners 
 were to attend to the sale of the 
 bricks, purchase necessary materials 
 for their manufacture, and collect 
 the bills. The profits and losses 
 were to be sliared equally by the 
 parties, the owners of the yard to 
 have the right to retain the brick, 
 or the money collected for those 
 sold to the value of all sums ad- 
 vanced by them from time to time 
 to H. The court held that the 
 bricks made under the contract be- 
 came the joint property of all the 
 parties, and that a usage which 
 tended to show that H. had no 
 property in the bricks, but only an 
 interest in the profits to the extent 
 of his share, was bad, and therefore 
 inadmissible. In Delaplane v. Cren- 
 
 shaw, 15 Gratt. (Va.) — , it was held 
 that a custom for a flour inspector 
 to use the draft flour drawn out to 
 be examined, was bad, as being 
 against the policy of the law. 
 
 ^ Story v. Farmers' Trans. Co., 17 
 Hun. {N. Y.) 579. 
 
 ^ Leach v. Perkins, 17 Me. 462; 
 Ripley v. Croaker, 47 Me. 370. 
 
 * Whitmore v. South Boston Iron 
 Co., 2 Allen (Mass.) 52. 
 
 ^ Barksdale v. Brown, 1 N. & M. 
 (S. C.) 519. 
 
 " Cadwell v. Meek, 17 111. 220 ; 
 Meaghar v. Lufkin, 21 Tex. 383; 
 George v. Bartlett, 22 N. H. 496; 
 Sweet V. Jenkins, 1 K. I. 147 ; Renner 
 V. Bank of Columbia, 9 Wheat. (U. 
 S.) 581 ; WadsivoHh v. Allcott, 6 N. Y. 
 64; Sleight v. Rhinelander, 1 Johns. 
 (N. Y.) 192; Cooper v. Purvis, 1 
 Jones (N. C.) L. 141 ; Barlow v. Lam- 
 bert, 28 Ala. 704 ; Bank of Commerce 
 V. Bissell, 72 N. Y. 615; Farmers' &c. 
 Bank v. Logan, 74 Id. 568. 
 
PEIVATE USAGES, CUSTOM OF BKOKERS, &C. 319 
 
 presumption, and shows that the parties really intended to 
 adopt a particular usage, which is reasonable and contains the 
 elements requisite to give it validity, as the rule for its inter- 
 pretation!' What will be deemed a sufficient expression of an 
 intention to overcome the general law and adopt the usage, 
 necessarily depends upon the circumstances of each case. 
 First, the usage itself, its uniformity, certainty and reason- 
 ableness, and secondly upon the knowledge of its existence 
 by the parties contracting, or its notoriety and the probability 
 that the parties knew of and contracted in reference to it. 
 It is held by some of the courts, that a usage is not admissible 
 to confer a right upon parties where such right is in conflict 
 with the general law, but this question has been variously 
 decided by our courts, and the weight of authority would 
 seem to favor the doctrine that such a right may be conferred 
 by usage.* But however this may be so far as the general 
 law is concerned, there seems to be no doubt that a usage or 
 custom is wholly inoperative to confer validity upon a con- 
 
 ' Renner v. Bank of Columbia, 9 tracted in reference to it, and 
 Wheat. (U. S.) 581 ; Gordon v. Ldttle, intended to make it controling in 
 ■8 S. & E. (Penn.) 583 ; Halsey v. their contract. Kendall v. Russell, 5 
 Brown, ^ Day (Conn.) 346; Snowden Dana (Ky.) 501; Gibson v. Culver, 
 V. Warden, 3 Kawie (Penn.) 101 ; 17 Wend. (N. Y.) 307 ; Allegre v. 
 Wadd V. Wilcox, 9 Wend. (N. Y.) Maryland Ins. Co., 2 G. & J. (Md.) 
 349. There are some usages of trade 136 ; Thomas v. O'Hara, 1 Const. (S. 
 and commerce that have been C.) 306. If parties engaged in the 
 proved so often, and have so far business to which the usage relates, 
 incorporated themselves into the and therefore having the means of 
 general law, that courts will take knowing of its existence or non- 
 judicial notice of them. United States existence, testify that they have no 
 y.Arredondo, 6 Pet. (U.S.) 715; Conse- knowledge of its existence, or that it 
 qua v. Willings, 1 Pet. (U. S. C. C.) has been resisted by some and is not 
 230. But particular usages must uniformly acted upon, this is very 
 always be proved, and the circum- material, as tending to dispense with 
 stance of its being of recent origin, the effect thereof. Parrott v. Thatcher, 
 unreasonable, local, against the gen- 9 Pick. (Mass.) 426 ; Kendall v. Rus- 
 eral law, restricted within narrow sell, ante. 
 
 limits, &c., always come in to en- ' See Section 105, ante, entitled 
 hance the difficulty of making it " Proof of Usage to Establish a War- 
 clearly appear that the parties con- ranty.'' 
 
320 PRIVATE USAGES, CUSTOM OF BROKERS, &C. 
 
 tract which the statute declares invalid, or to give a right of 
 action, upon a contract where the statute provides that no 
 action shall be maintained. Consequently proof of a custom 
 or usage, can never give validity to a contract within the 
 statute of frauds, or to take a casfe out of the operation of the 
 statute of limitation.^ 
 
 Where Meaning is Given to Word by Statute -" Bushels "— 
 " Hobbett "—Custom as to Weight— As to "Lumps." 
 
 Sec. 143. It follows, therefore, necessarily from these 
 rules, that the admissibility of the evidence of custom to 
 explain the meaning of a word used in any contract what- 
 ever is subject to the qualification that, if a statute has given 
 a definite meaning to any particular word, it must be under- 
 stood to have used it with that meaning, and no evidence of 
 custom will be admitted to attach any other meaning to it. 
 The words to which statutes have given a definite meaning 
 are for the most part those which denote weights, measures 
 or numbers. Thus, in one case, " bushels " were held to 
 mean only statute bushels. (m) In another, "quarters of 
 corn " was understood to mean legal quarters, (v) In Hughes 
 V. IIumphreys,{'w) the statute 5 & 6 Will. 4, c. 63, s. 6, 
 which abolishes all local or customary measures, and imposes 
 a penalty on every person who shall sell by any denomina- 
 tion or measure other than one of the imperial measures, or 
 some multiple or aliquot part thereof, was held to apply only 
 to the sale by measure of capacity, and not to sale by weight 
 estimated in pounds. And that, therefore, it did not extend 
 to sale by any local term designating a given number of 
 pounds' weight. As to sale of wheat by Welsh hobbett, it 
 appearing by evidence that this designated 168 pounds' 
 weight, and that a sale by hobbett entitled the purchaser to 
 so many pounds of wheat. And in another case, a contract 
 
 8 Dunham, v. Gould. 16 Johns. (N. Y.) 367. 
 
 (u) Hockin v. Cooke, 4 T. R. 314. Howard de Walden, 6 T. R. 338. 
 
 (v) The Master of St. Cross v. Lord (w) 3 E. & B. 954. 
 
PRIVATE USAGES, CUSTOM OF BEOKERS, &C. 321 
 
 for the sale of a certain number of tons of iron, "long 
 weight," was held not to be a contravention of the statute, 
 and that consequently such a contract was valid. It 
 appeared in that case that the 15th section of 5 Geo. 4, c. 
 74, is not repealed by the act alluded to, and that, therefore, 
 contracts by local weight may be lawfully made if the pro- 
 portion to the standard is expressed, (a;) It has been held 
 that a custom that every pound of butter sold in a particular 
 market town shall weigh eighteen ounces is bad ; but it was 
 a question whether a custom to sell butter in lumps might 
 not be supported, (y) 
 
 As to Importance of Subject. 
 
 Sec. 144. Little remains to be added in this place. It 
 may be objected that, after all, undue importance has been 
 given in the foregoing pages to what is, after all, only one 
 branch of the Law of Evidence. We cannot, however, 
 admit that that is so. It is true it is a branch of the law of 
 evidence, but it is one of the most important branches, and 
 it is doubly important to the real student of jurisprudence, 
 by reason of the fact that it is, as it were, the connecting 
 link between the science of evidence and the science of law. 
 The fact that questions in relation to usage have been so 
 frequently litigated, shows the importance of the subject and 
 the importance of having the main questions in connection 
 with it definitely settled. If we could feel that our work 
 had contributed to this end we should feel that this book 
 was not insignificant, but of very great practical worth. If 
 we have not that consciousness, our failure is due to the exe- 
 cution, and not to the purpose. 
 
 {x) Giles V. Jones, 11 Exchq. 393. see also Wing v. Earle, Cro. Eliz. 
 iy) Noble v. Burrell, 3 T. R. 271 ; 267. 
 
 20 
 
INDEX 
 
 A. 
 
 "ABOUT." P^„. 
 
 Explained by usage 192 
 
 "ACRE." 
 
 Not explainable by usage ." '. 103 n. 
 
 See Paull v. Lewis 103 n, 
 
 ADDITION. 
 
 Of incidents to contracts. See Incidents. 
 ADVERTISEMENT. 
 
 Usage to continue binding when 53 n. 
 
 "AFTER GRASS." 
 
 Usage admissible to explain 184 
 
 AGENTS. 
 
 Of insurance companies, usage as to property in lists of policies 
 
 procured by them 26 n. 
 
 AGENT. 
 
 Goods sent to, for sale with instructions to remit, usage evidence 
 
 as to manner of remitting, how far 68 
 
 Rule in Potter v. Morland 68 n. 
 
 AGENTS. 
 
 Usage to pay 129 n. 
 
 See Hatch v. Carrington 129 n. 
 
 For, to sell in their own name 129 n. 
 
 See Johnstone ti. Usborne 129 to. 
 
 Usage allowing, to sell property purchased for his principal and 
 
 replace it by other similar in kind and quality, bad 155 n. 
 
 See Foley D. Bell 156 n. 
 
 Also Allen v. Dykers 159 n. 
 
 Usage admissible to show that sales by, may be interpreted to be 
 
 by warranty or sample 168 to. 
 
 See Alexander tj. Gibson 168 n. 
 
 Sales by, may be subject to usage that principal may reject same 168 n. 
 
 See Sumner oi. Stewart 169 to. 
 
 ^'A GOOD DELIVERY." 
 
 Usage admissible to explain when. 183 
 
 See language of Lord Ellenborough 183-184 
 
 (323) 
 
324 INDEX. 
 
 AGREEMENT. pabe 
 
 In writing, cannot be varied by parol, when 80-85 
 
 Collateral, may be shown, when 85, 88 
 
 Subsequent, may be shown, when 86, 87 n. 
 
 Rule in Goss v. Nugent 86 
 
 General principles illustrated 89 
 
 As to extrinsic parol evidence 89 
 
 Presumptions 89 
 
 Ambiguity in, explainable by usage, when 91 
 
 Words used in, may be explained by usage, when 91 ra- 
 
 As to extent to which usage should be admitted 93 
 
 "ALL FAULTS." 
 
 Meaning of, may be shown, when ' 91 n. 
 
 See Whitney i). Boardman 91 ra. 
 
 ALLOWANCES. 
 
 Customary, to tenant on going but of possession 48 m.-50 n., 62 
 
 Hutton V. Warren 48 n., 62 
 
 Senior v. Armitage 48 n. 
 
 Webb V. Warren 48 n. 
 
 Holding V. Piggott 49 n. 
 
 Roberts t). Barker 49 7i> 
 
 Webb V. Plummer 71 
 
 AMBIGUITY. 
 
 Usage admissible to explain, arising from distinction between 
 
 ordinary and peculiar sense of words 54-60 and note» 
 
 See Words ; also Phrases. 
 
 In contract may be explained by usage, when 91 
 
 Words used in peculiar sense 91 ra. 
 
 In contract explainable by usage, when 110 n. 
 
 See Bhoades v. Castner Ill n. 
 
 Page V. Cole Ill n. 
 
 Miller v. Stevens 310 n> 
 
 Keller v. Webb Ill n. 
 
 Swett V. Shumway Ill n. 
 
 Walls V. Bailey 91 n. 
 
 Ford V. Tirrell , 46 
 
 Lowe V. Lehman 46 
 
 Houghton V. Gilbart 103 n. 
 
 New Jersey Zinc Company v. Boston Franklinite Company... 90 n. 
 
 Ganson v. Madigan 91 n. 
 
 Grant v. Maddox 91 n. 
 
 Barger v. Caldwell 54 n. 
 
 In contract, may be raised and explained by usage 164r-5 
 
 Illustration, Collins i). Driscoll 165 
 
 Usage admissible to raise and explain 184 
 
 As to explanation of, by usage 195 
 
 In bviilding contradt > 195 
 
INDEX. 325 
 
 AMBIGUITY— Coniinwed. paoe 
 
 Latent, not explainable .' 199 n. 
 
 Latent, explainable by parol, when 198-227 
 
 Instances. See notes 198-227 
 
 ANTIQUITY. 
 
 Essential to validity of custom 17 
 
 Not necessary as to usage of trade 63 
 
 APPRENTICE. 
 
 Usage for master cooper to send, to sea, bad 112 n. 
 
 See Eandall -o. Batch 112 n. 
 
 AVERAGE. 
 
 Usage as to settling losses 26 n.. 
 
 AWAY-GOING CROPS. 
 
 Usage as to right of tenant to take 43-77 and notes 
 
 As to right of tenant to allowance for. Senior v. Armitage 48 n. 
 
 When term is fixed by lease, Whitmarsh v. Cutting 48 n. 
 
 Recognizing right of tenant to, Wigglesworth v. Dallison 45 n., 60 
 
 Dorsey i;. Eagle 48 
 
 Stultz V. Dickey. 50 n. 
 
 Templeman v. Biddle 50 n. 
 
 Van Doren i;. Everett 50 n. 
 
 Van Ness 1). Pacard 50 re. 
 
 Right of tenant to. See Tenant, Cbops. 
 
 B. 
 
 "BALE." 
 
 Usage to show meaning of. 192 
 
 BANKS. 
 
 Usage of, must be established by facts, npt by opinions of wit- 
 nesses 123 re. 
 
 See Chesapeake Bank v. Swain 123 re. 
 
 Usage of officers of, to permit cashier to misapply funds, invalid.. 180 re. 
 
 See Minor v. Mechanics' Bank 180 re. 
 
 Usage of, when and how far binding 280 
 
 See Bridgeport Bank v. Dyer 280 
 
 Usages. 
 
 BANKERS. 
 
 Usage admissible to show what sculptors mean by 104 re. 
 
 SeeGoblett-y. Beechey 104 re. 
 
 BARRELS. 
 
 Usage to return others, in place of those furnished by persons 
 
 selling cider, &c., valid, when 67 re. 
 
 Rule in Sturges v. Buckley 67 re. 
 
 May be explained by usage, when Ill 
 
 &« Miller v. Stevens, Keller -v. Webb. Ill 
 
326 INDEX. 
 
 BAY-WINDOW. PAos 
 
 Eight to maintain, over another's land, cannot be acquired by 
 
 custom 17 n. 
 
 BILLS OF EXCHANGE. 
 
 Usage as to, in certain respects between this country and Eng- 
 land, void 25 n. 
 
 Regulates days of grace on, Tvhen 26 n. 
 
 Usage determines days of grace on, when 51 
 
 Usage of banks as to grace on, admissible, when 57 n., 66 
 
 Rule in Eenner v. Bank of Columbia 57 n. 
 
 Contra, Woodruff v. Merchants' Bank 57 n. 
 
 Presumption that are given for good consideration, predicated 
 
 on usage 172 re. 
 
 Effect of usage on 194 
 
 Instances 194 
 
 BILLS OF LADING. 
 
 " Perils of the sea," usage not admissible to show, includes 
 
 injury by rats 56 n. 
 
 Rule in Aymar v. Astor 56 n. 
 
 "Inevitable dangers of the river,'' usage may explain 82 n. 
 
 Rule in Gordon v. Little 82 n. 
 
 Cannot be varied by usage 81 n.. 
 
 Cannot be shown to protect carrier against all losses except such 
 as attributable to his neglect, under clause exempting against 
 "danger of the sea," 81 n. 
 
 Rule in The Reeside 81 n. 
 
 Carrier cannot set up usage inconsistent with 83 n. 
 
 See Simmons v. Law 83 n. 
 
 "On the steamer" &c., explainable by usage 182 
 
 " 80s. per cwt. gross weight, tallow and other goods, &c.," explain- 
 able by usage 192 
 
 Russian Steam Navigation Company v. Silva 192 
 
 "A clean bill of lading," 192 
 
 BONDS. 
 
 Usage to regard certain instruments as 177 
 
 "BRITISH GOLD." 
 
 Phrase explainable by usage when 56 n.., 183 
 
 BROKERS. 
 
 Usage to show how mining shares are to be paid for 127 n. 
 
 See Field v. Lelean 127 n. 
 
 Usage of not admissible to change relation of, to customer 128 n. 
 
 See Baker v. Drake 128 n. 
 
 Usages of, binding when 129 n. 
 
 See Sutton v. Tatham 129 n. 
 
 Also Bayliffe v. Butterworth 129 n. 
 
 Usage of, to sell stock hypothecated with, and return other of 
 
 same kind, is bad 159 n. 
 
INDEX. 327 
 
 BUOK'ERB— Continued. pahi. 
 
 So to sell stock for failure of principal to re-pay advances 159 n. 
 
 What usages of, are binding 159 n. 
 
 Usage of, to sell stock deposited as collateral to a call loan, bind- 
 ing when. 188 
 
 Usages of, as to selling stock, validity of..... 218, 219 
 
 Usage not admissible to extend authority of. 228 n. 
 
 See Higgins v. Moore , 228 n. 
 
 Signing as principal, bound as 229' 
 
 See Magee v. Atkinson 229' 
 
 Purchasing without disclosing name of principal, liable when.... 274 
 
 &e Humfrey v. Dale 274 
 
 Usage as to effect of notice to 282 
 
 "BUILDING." 
 
 Usage admissible to explain meaning of, when , 55 «... 
 
 BUILDING CONTEAGT. 
 
 Usage to explain 195 
 
 See illustrating Myers v. Sari 196. 
 
 BOEOUGH ENGLISH. 
 
 Custom of. Iff 
 
 What is 10 
 
 "CANADA MONEY." 
 
 Meaning of, may be shown by usage, when 194 
 
 " CALCUTTA LINSEEDS." 
 
 Usage to explain. 192 
 
 CARGO. 
 
 Usage permitting master of vessel to sell without necessity, is 
 
 void , 25 n. 
 
 Usage may explain meaning of, when 55 n. 
 
 Usage admissible to show, whether it includes whole loading of 
 
 vessel 103 n. 
 
 &e Houghton ■!). Gilbart 103 w.. 
 
 CAREIEE. 
 
 Cannot set up usage inconsistent with bill of lading 83 n. 
 
 See Simmons v. Law 83 n. 
 
 Usage to give lien for general balance 97 n. 
 
 Eule in Eushforth v. Hadfield. 97 re. 
 
 Usage authorizing intermediate to deduct from back freight 
 
 earned, deficiency in cargo is bad 145 
 
 Strong V. Grand Trunk Eailroad Company 145 n. 
 
 Exempting from liability for negligence, is bad 145 
 
 See The Schooner Eeeside 145 n. 
 
 Cleaveland v. New Jersey Steamboat Company 145 n^ 
 
 Usage continuing liability of, after discharged by general law, 
 
 bad 145 
 
 See Eeed v. Eichardson 145 n. 
 
328 INDEX. 
 
 CARRIER — Continued. paob 
 
 Effect of usage on liability of 244-248 
 
 By water, usages of as to stowage of freight 260 n. 
 
 As to delivery of. 261 n. 
 
 As to exceptive words in bill of lading 261 n. 
 
 CASH. 
 
 Goods not sold for, usage as to term of credit, binding when 108 n. 
 
 See Farnsworth v. Chase 108 n. 
 
 Goods sold for, usage that payment in thirty days is treated as, 
 
 not binding 186 n. 
 
 &e Chapman v. Devereux, 32 Vt. 616 186 n. 
 
 Or that payment in six days is 271 n. 
 
 See Greaves D. Hendricks 271 w. 
 
 Usage to make it mean credit in sale for, must be 162 n. 
 
 See Steward II. Scudder 162 ra. 
 
 CHARTERS. 
 
 Explainable by usage 42 
 
 CHARTER PARTY. 
 
 Usage may explain words "in turn to deliver" in 64 n. 
 
 When not 52 n. 
 
 Usage in relation to, effect of. ..... 244 
 
 Usage as to " perils of the sea '' 56 n. 
 
 Rule in Aymar v. Astor 56 n. 
 
 Rule in "The Schooner Reeside " 56 n. 
 
 Rule in " Turney i). Wilson '' 56 n. 
 
 As to usage to "stow on deck" 56 n. 
 
 Rule in Barber i). Brace 56 n. 
 
 CLARKE V. ROYSTONE. 
 
 Rule in as to effect of usage on covenants in lease 43 n. 
 
 CLASSIFICATION. 
 
 Of customs 6 
 
 COLLATERAL AGREEMENT. 
 
 Maybe shown 199-201 
 
 COMMERCIAL CONTRACTS. 
 
 Effect of usages upon 78 
 
 See Trade ; also Custom of Merchants. 
 
 COMMERCIAL TRANSACTIONS. 
 
 Custom applicable to 63 
 
 Principle upon which rule rests 63 
 
 Policy of 63 
 
 COMMERCIAL USAGE. 
 
 Must be proved by commercial men, 92 n. 
 
 When they become law 92 n. 
 
INDEX. 329 
 
 COMMISSION MERCHANTS.- paoe 
 
 Usage as to sale of goods by, cannot control against positive in- 
 structions 68 n. 
 
 Rule in Stewart v. Scudder 68 n. 
 
 Usage not admissible to hold as purchaser 79 n. 
 
 Rule in Duguid v. Edwards 79 n. 
 
 Usage regulating sales by, valid when 122 n. 
 
 See Dwight v. Whitney 122 n. 
 
 Usage to remit by bill without endorsing or guaranteeing, valid.. 122 n. 
 
 See Potter I). Morland 122 n. 
 
 Usage where advances have been made 155 
 
 Usage to sell on credit, not binding when 163 n. 
 
 Usage as to commissions of. 164 n. 
 
 Sales by, may be on credit when 168 
 
 See Leach v. Beardslee 169 n. 
 
 As to return of barrels, cases, &c 170 
 
 COMMISSIONS. 
 
 Usage as to charging, bindingwhen 168 n. 
 
 See Turner v. Yates 168 n. 
 
 Usage as to payment of, binding when 180 n. 
 
 COMMON CARRIERS. 
 
 Cannot excuse failure to perform contract to carry goods, by 
 usage 81 
 
 Rule in Cox v. Peterson ; 81 n. 
 
 May show usage in certain cases, in defence, for loss of goods by 
 
 " dangers of the river." 81 n. 
 
 Rule in Steele v. Tyer ■. 81 n. 
 
 May show that loss by fire, is included in " dangers of the river." 81 n. 
 
 Rule in McClure v. Cox 81 n. 
 
 COMMON LAW. 
 
 How evidenced 8 
 
 Usage opposed to rules of, difficult to establish 97 n. 
 
 See Gibson v. Culver 97 n. 
 
 Middleton v. Heyward , 98 m. 
 
 Usage conflicting with, difiicult of establishment 95 n., 101 n. 
 
 Is there really any rule excluding, in all cases ? 95 «.., 106 
 
 Incidents annexed to contracts by 287 
 
 As to title 287 
 
 CONSIDERATION. 
 
 May be shown to have failed 86 
 
 CONSTRUCTION. 
 
 Of customs, rule for 33 
 
 Custom may be used in, of contracts 33-36 
 
 CONTRACTS. 
 
 Local custom becomes part of, when 13 
 
 admissible to add incidents to 39 
 
330 INDEX. 
 
 CONTRACTS— Coraiimted. paob 
 
 Usage admissible to show how, was made., 40 n. 
 
 To ascertain m^eaning of words in 23 n., 40 n. 
 
 Not to vary or control.... 40 n., 81 
 
 Presumed to be made in reference to usage, when 45 
 
 When incident may be added to, by usage 65 n., 66 n. 
 
 Usage may be admitted to show nature of. 65 n> 
 
 Not admissible if impliedly excluded 66 n. 
 
 Nor to overcome common law rights as to implied warranty 66 re. 
 
 Eule in Whitraore v. South Boston Iron Company 66 n. 
 
 Nor to establish warranty where none can be implied 67 n. 
 
 Nor to clothe factor with power to warrant goods sold 67 n. 
 
 Admissible to show that a sale of berries in bags, by sample, 
 carries with it warranty that entire lot is equal to sample in 
 
 quality 67 n. 
 
 Kule in Schnitzer i;. Oriental Print Works 67 re. 
 
 Not admissible to show warranty that goods are not fraudulently 
 
 or deceitfully packed...., 67 re. 
 
 Rule in Barnard v. Kellogg 67 re., 94 
 
 Effect of usage on commercial 78 
 
 General rules as to admission of usage to add incidents to 127 n^ 
 
 Express, cannot be varied by usage 81 
 
 Scotch law in reference to 81 
 
 May by parol be shown to be void by reason of forgery or fraud.. 85 
 
 Or illegal 86 
 
 Or for duress 86 
 
 Or because parties were incompetent 86 
 
 Or because consideration has failed 86 
 
 May be shown to have been dissolved, by parol, when 86 
 
 May be modified or extended by parol 87 re. 
 
 Subsequent, by parol, may be shown 88 re. 
 
 Collateral, maybe shown 88 
 
 Legal import of, cannot be varied by usage 94 re. 
 
 May be used to explain 94 re. 
 
 Not admissible to import warranty into 95 re. 
 
 As to bi'ick-yard let on shares 101 re. 
 
 Rule in Macomber v. Parker 102 re. 
 
 See also Kendall v. Dana, where usage as to estimating quan- 
 tity of bricks laid, was excluded because contract was 
 
 express 102 re. 
 
 Usage repugnant to, not admissible 109 re. 
 
 Of sale, usage that parties given certain time to return goods for 
 
 defects, after the time named, not admissible 109 re. 
 
 See Atkins v. Howe 109 re. 
 
 Usage may add incident to 110, 112 
 
 Usage impliedly or expressly varying, not admissible 112 re. 
 
 Illustrating, see Davis r. Galloupe 112 re. 
 
 Usage to explain, when ambiguous 110 re. 
 
INDEX. 331 
 
 CO^TB,ACTS— Continued. p^be 
 
 Illustrating, see Ehoades ■;;. Castner 110 n. 
 
 Usage for master cooper to send apprentice to sea, repugnant to.. 112 n. 
 
 See Randall u Ratch 112 m. 
 
 Usage imported into writing as part of, when 126 n. 
 
 Usage admissible to show when and how shares sold by brokers 
 
 are to be paid for 127 n. 
 
 See Field v. Lelean 127 n. 
 
 That is defeasible on certain notice 127 to. 
 
 See Parker v. Ibbittson 127 n. 
 
 That bought and sold notes were for property sold by sample 127 n. 
 
 See Cuthbert v. Gumming 127 n. 
 
 That a sale of horse involves a warranty, when. 127 n. 
 
 See Allen v. Prink 127 n. 
 
 That a reservation of crops is implied from certain leases 127 n. 
 
 See Adams v. Morse 127 n. 
 
 For sale of casks of lead, usage admitted to show size of casks.... 198 n. 
 
 See Keller v. Webb 198 n. 
 
 For lien for advances on sale of cotton, parol evidence admis- 
 sible to show what was covered by .■ 198 n. 
 
 See Saulsbury v. Blandy 198 n. 
 
 May be shown to be fraudulent 199, 201 
 
 Collateral may be shown 200 
 
 Illegality in 200 w. 
 
 Want of consideration 200 w. 
 
 That it has been discharged by parol 200 n. 
 
 That new, has taken place of old 200 n. 
 
 Illustrations , 200 n. 
 
 That terms of, have been waived 202 n. 
 
 That it has been changed 203 
 
 Meaning of, may be shown by parol, when 203 n. 
 
 Usage admitted to determine what is left undetermined in 163 
 
 See Dixon d. Dunham 163 n. 
 
 Legal effect of, sometimes varied by usage 164-166 
 
 See Collins v. Driscoll 165 
 
 To deepen ditch, incidents of. 165 
 
 Usage that authorizes breach of, not admissible 164 n. 
 
 See Holmes v. Stemmel 164 n. 
 
 Usage explaining, cases illustrating rule 219-221 
 
 Undefined words in 220 
 
 See Lucas v. Bristowe 220 
 
 Ryder v. Woodley and Cockburn v. Alexander 221 
 
 Effect when usage referred to in 223 
 
 Usage adding incident to 249 
 
 Distinction between, and varying.., 248 
 
 'Rule as to explaining words or phrases in, by usage 250 n. 
 
 Varying by usage 256-258 
 
 See Read v. Delaware and Hudson Canal Company 256 n. 
 
332 INDEX. 
 
 CONTRACTS— Con^mMed. page 
 
 Addition of terms to, byusage 53 
 
 •Inconsistent doctrine as to usage varying 259 
 
 Variance of, and usage 262 n. 
 
 Usage to explain, rejected, when 263-267 
 
 Terms added to, by usage, must be incidental 267-270 
 
 COOPER. 
 
 Usage for master, to send apprentice to sea, bad 112 n. 
 
 See Randall v. Ratch 112 n. 
 
 " COPPERED SHIP." 
 
 Explainable by usage, when 57 n. 
 
 "CORN." 
 
 Explained by usage 172 
 
 CORPORATIONS. 
 
 Usages of, evidence of legal powers of, when 218 
 
 Effect of usages of, upon acts in excess of charter 231 
 
 "COTTON IN BALES." 
 
 Phrase explainable by usage, when 57 n. 
 
 "COTTON YARN." 
 
 Meaning of, may be shown by usage 194 
 
 COURSE OF HUSBANDRY. 
 See Husbandry. 
 
 COVENANTS. 
 
 In lease, usage admissible to explain when 48 n.,77 
 
 Rule in Hutton ■!).• Warren 45 n. 
 
 Wigglesworth v. Dallison 45 n. 
 
 Clark V. Roystone 43 n. 
 
 Muncey v. Dennison 45 n. 
 
 Usage admissible to construe when 313 
 
 See illustrating Livingston v. Tyler 314 
 
 CROPS. 
 
 Right of tenant to, by custom 27 
 
 Usage as to out-going tenant's right to 43-77 and notes. 
 
 See Away-Going Crops. 
 
 Right to take when lease is for one year 50 n. 
 
 Rule in Templeman v. Biddle 50 n. 
 
 CURRENT FUNDS. 
 
 Usage not admissible to explain 264 
 
 CUSTOMS. 
 
 What are 6 
 
 Classification of. 6 
 
 Validity of , 7, 17 
 
 General, what are 6 
 
 Particular, what are 6 
 
 Illustration 6 
 
INDEX. 333 
 
 CVSIOMS— Continued. p^<,i 
 
 Of merchants note ^, 7 
 
 Must be ancient 17 
 
 And the common law 8 
 
 Of gavelkind 10 
 
 Of borough-English 10 
 
 Development of. 21 
 
 Of manors - 11 
 
 Developed into law 2 
 
 Particular 9 
 
 Of the road, what is 13 
 
 Of navigators, what is 13 
 
 Becomes law when , 14 
 
 Saved by statute, force of. note (d) 14 
 
 And prescription, distinction between also note (i) 16 
 
 Requisite elements to create 17 
 
 When void for lack of antiquity 17 
 
 Antiquity, necessary 17 
 
 Definition of legal memory note (j) 17 
 
 When origin of can be traced, ceases to be 18 
 
 Presumption of antiquity raised when 18 
 
 Jury should be instructed to infer when 18 
 
 Once shown to exist, presumes to continue 18 
 
 Right obtained by, disproved how 18 
 
 Tenant cannot defeat 18 
 
 To take anything from another's soil, void note {i) 16 
 
 Or Tpro&t a prendre note [i) 16 
 
 What is 16 
 
 Validity of. 17 
 
 Continuity of l 19 
 
 Peaceable enjoyment of 22 
 
 Reasonableness of 23 
 
 Certainty of. 28 
 
 Foundation of. 28-31 
 
 Obligatoriness of. 31 
 
 Consistency of.....; 32 
 
 Construction of 33 
 
 Force of 34 
 
 Confusion as to meaning of. 35 
 
 And common law 35 
 
 Of country 39,74 
 
 As to husbandry, course of. 43-51 
 
 To pay for seeds, tillages, &c 43-51, 76 
 
 As to time of holding 43-51 
 
 When inoperative 43, 72 
 
 Knowledge of presumed 63 
 
 Of stock exchange 219 
 
 Must be uninterrupted 19 
 
334 INDEX. 
 
 CUSTOMS— Continued. pao* 
 
 Effect of interruption upon 19. 20 
 
 Must be uniform noie (m) 19 
 
 Illustration 19,20 
 
 Analogy between and language 20 
 
 Development of 21 
 
 Dead laws 21 
 
 Must have been peaceably enjoyed 22 
 
 Must be reasonable 23 
 
 Unreasonable, what are 24-27 noie {w) 25 
 
 Instances of unreasonable "n-ote (w) 25 
 
 Opposed to policy of law note (w) 25, 27 
 
 Or opposed to statute 25 n., 26 n. 
 
 Foreign, void when 27 n. 
 
 Illegal, void 27 n. 
 
 Contrary to statute, void 27 n. 
 
 Contravening law of emblements 27 
 
 Must be certain 28 
 
 Illustrations 228 
 
 Vague 28 
 
 Must be obligatory 31 
 
 Must be consistent 32 
 
 Void for indefiniteness 28 
 
 Illustrations 28-31 
 
 See Steel v. Houghton, 1 H. Bl. 51 29 
 
 Also, Blewett v. Treganning, 3 Ad. & El. 554 29 
 
 Also, Wilson v. Willes, 7 East 121 29 
 
 Illustration as to what are uncertain 28, 29, 30 
 
 Must be known 31 
 
 Must be unchangeable 31 
 
 Must not be contradictory 32 
 
 How construed 33 
 
 In derogation of common law, strictly construed 33 
 
 Presumptions as to 33-36 
 
 The force of. 34 
 
 Interpretation 34 
 
 Confusion as to meaning of term 35 
 
 And common law 35 
 
 Not common law 36 
 
 For tenant to enter to fill ice-house before his term begins, good.. 48 n. 
 
 See Stone v. McClay 48 n. 
 
 As to course of husbandry 61 
 
 Rule in Dalby v. Hunt 61 
 
 Applicable to commercial transactions, when 63 
 
 Principle on which rule rests 63 
 
 Policy of. , 63 
 
 Evidence of, to explain transaction 63 n. 
 
 To add incidents 62 
 
INDEX. 335 
 
 CUSTOMS— Om^mited. p^ob 
 
 Not to contradict 64 
 
 Test of admissibility 62, 63 n. 
 
 True principles of admission 63 n. 
 
 Intention to exclude 72 
 
 Of country, when inoperative 72 
 
 Term of holding, and operation of. 73 
 
 Eeason for admission 73 
 
 Rule in Holding v. Piggott 73 
 
 As to term 74 
 
 Rule in Furley v. Wood 74 
 
 Rule in Hall v. Benson 74 
 
 Where lease is by deed 74 
 
 Not excluded by terms of lease 75 
 
 Rule in Farriell v. Gaskoin 75 
 
 Where lease excludes 76 
 
 What are binding 76 
 
 To pay for tillages 76 
 
 Attempt to limit scope of. 106 
 
 See Hutton u. Warren 106 
 
 Aho Freeman v. Loder 106 
 
 Dangers of explanatory evidence 106-112 
 
 How proved also note, 117 
 
 How proved in some instances 120 n. 
 
 See Knowles v. Dow 120 n. 
 
 Of the country, means what 127 
 
 Knowledge of, presumed 127 
 
 Principle on which admitted 127 
 
 Of outgoing tenant to leave the manure 133 n. 
 
 See Roberts i;. Barker 133 n. 
 
 As to weight. Section 143 320 
 
 To be operative must exist at place where transaction took place, 181 n. 
 
 See Allen i). Lyles 181 ra. 
 
 Becomes a law when 210 n. 
 
 See Consequa v. Willings 210 n. 
 
 Universal, and general law 260 
 
 CUSTOM OF THE COUNTRY. 
 See Custom. 
 
 CUSTOM OF KENT 10 
 
 CUSTOMS OF LONDON. 
 
 See as to the various, Pulling on the Laws and Customs of Lon- 
 don; also, casea innote (k) 11 
 
 CUSTOM OF MANORS. 
 
 Binding, when 11 
 
 CUSTOM OF MERCHANTS. 
 
 Courts take judicial notice of...., 7 note '-, 13 
 
 Must be proved, when 12, 15 
 
336 INDEX. 
 
 CUSTOM OF MEB.CB.A'NTS— Continued. paoe 
 
 When proved 7 
 
 How proved 7 re., 12, 14 
 
 Courts will take judicial notice of, what , 12 
 
 Eule in cases of doubt 12 
 
 See Edie v. East India Company, 2 Burr. 1228. 12 
 
 Also Kruger v. Wilcox, Amb. 252 12 
 
 Consists of general a.nd local law 12 
 
 Usage becomes custom, when 14 
 
 Becomes part of the law of the land, when 15 
 
 How proved 117 n. 
 
 Distinction between and usages of. 128 n. 
 
 Particular usages of merchant admissible to import incidents 
 
 into contracts , 128 n., 129 ?i. 
 
 /Sge Noble v. Kennoway 128 re. 
 
 Or to explain terms of 128 re. 
 
 SeeVdhe v. Waters 128 re. 
 
 Also Hutchinson v. Bowker 128 re. 
 
 CUSTOM OF ULSTER. 
 
 Natureof 2 
 
 Described 3 
 
 Origin of 3 
 
 CUSTOMARY ALLOWANCES. 
 To tenant. See Allowances. 
 
 CUSTOMARY RIGHTS. 
 
 Annexed to leases, when 43-77 
 
 D. 
 
 " DANGERS OF THE RIVER." 
 
 May be shown by usage to include losses by fire 81 re. 
 
 Rule in McClure v. Cox 81 n. 
 
 " DANGERS OF THE SEA." 
 
 In bill of lading, cannot be construed by usage, to protect carrier 
 
 against all losses except such as arise from his neglect 81 ?i. 
 
 Rule in the Reeside , 81 re. 
 
 Usage not admissible to excuse carrier against, when 183 
 
 DAYS. 
 
 Explained by usage 173, 190 
 
 See Cochran v. Retberg 173 
 
 Hinton v. Locke 175 
 
 Barnes v. Ingalls 175 
 
 DAYS OF GRACE. 
 
 On notes and bills regulated by usage when 25 re., 51 
 
 DEATH BED DONATIONS. 
 
 Usa'ge making valid, when required to be by will, void 25 n. 
 
INDEX. 337 
 
 DEED. 
 
 Usage cannot vary, when 43w.,55n. 
 
 Admissible as to form of... 43 n. 
 
 When language of, may be explained by usage 165, 166 n. 
 
 See Collins 1). Driscoll .165 n., 166 n. 
 
 Usage admissible as to execution and acknowledgment of...l77 n., 180 n. 
 
 as to preparation and expense of. 193 
 
 " DEEPEN DITCH." 
 
 Explained by usage 165 
 
 See Collins v. Driscoll 165 
 
 " DELIVER." 
 
 Usage admissible to explain, when 183 
 
 DELIVERY. 
 
 Of goods sold, pro rata, binding when 108 n. 
 
 See Bliven r. New England Screw Company 108 n. 
 
 Dorsey i;. Eagle 48 
 
 As to right of tenant to away-going crop 48 
 
 DURESS. 
 
 May be shown to defeat contract 86 
 
 EMBLEMENTS. 
 
 Custom contravening law of, reasonable 27 
 
 ESTATE. 
 
 Usage of one, not binding upon another 45 ra. 
 
 Rule in Wormersly 1). Dally 45 n.. 
 
 EVIDENCE. 
 
 Of general customs 8,36 
 
 Of common law 7 
 
 Customs of London proved, how 11 
 
 Judicial notice taken of certain customs 12, 13, 14 
 
 Dependence of law upon 115 
 
 Distinction between, and law 116 
 
 Essential to establish usage 117 n.-125 n. 
 
 One witness sufficient, when 119 n. 
 
 Rule when conflicting 123 n. 
 
 See Winsor v. Dellaway , 123 n. 
 
 Of usage to show manner in which business was done 126 n. 
 
 Principle on which, of custom is admitted 127 
 
 To establish usage, requisites of 146-162 
 
 Must be of acts that are uniform 146 
 
 General as to place 146 
 
 Must show a general and prevailing course of business 146 
 
 Opinions not evidence 146, 148, 150 
 
 Instances must be shown 147 
 
 21 
 
338 INDEX. 
 
 EVIDENCE— Coraimwd:. pme 
 
 Isolated instances, not enough 147, 150 
 
 Witness may state how he does in the business, but the proof 
 
 must go farther 147, 150 
 
 The course adopted by the trade must be shown 147 
 
 Behef of a witness derived from a long connection with the busi- 
 ness may be given 147 
 
 Witness need not belong to the trade, if he has had ample means 
 
 of information 147 
 
 Usages of banks may be shown, how 148 
 
 Witness must state what is done, and how 148 
 
 Kule when only two witnesses are called, and one contradicts 
 
 the other 148 
 
 When conflicting 148 
 
 When witness fails to state instances, rule 148-9 
 
 How knowledge of usage, by a party, may be shown 149 
 
 See Walsh v. Franks 149 
 
 Usage or custom cannot be established by one witness, when 149 
 
 To establish customary right, what should be shown 149 
 
 On whom burden of proving rests 149 
 
 Usage at other places may be shown, effect of. 150, 152-154 
 
 See Anglesey v. Hetherton 152 
 
 Citizens' Insurance Company v. McLaughlin, Fleet v. Murton.. 153 
 
 Custom or usage at situs of the transaction must be shown 150 
 
 From whom, should come 150 
 
 Evidence from analogy of custom or usage 154 
 
 See Falkner v. Earle 154 
 
 P. 
 FACTOR. 
 
 Usage permitting, to pledge property of principal, is void 25 n. 
 
 Usage as to commissions 180 n. 
 
 FEME COVERT. 
 
 Sole traders by custom of London 11 
 
 " FINE BARLEY." 
 
 Usage admissible to explain 128 n. 
 
 See Hutchinson v. Bowker 128 n. 
 
 FIRE INSURANCE. 
 
 See Insueanob. 
 FISH. 
 
 Custom to take, from another's land, in alieno solo, void 17 n. 
 
 FIXTURES. 
 
 Meaning of " store fixtures " explainable by usage, when 56 n. 
 
 Rule in Whitmarsh v. Conway Fire Insurance Company 56 n., 187 
 
 FOREIGN ATTACHMENT. 
 
 Custom of London as to 11 
 
INDEX. 339 
 
 FOREIGN CUSTOM. P^aj, 
 
 Invalid, when 27 n. 
 
 FRAUD. 
 
 May be shown to defeat contract 85 
 
 Party may show, in making written contract, when 199, 201 
 
 Burden of establishing, on party setting it up 199 n. 
 
 '• FREIGHT." 
 
 Explained by usage 173 
 
 Previous business between parties may be shown to ascertain 
 
 what is meant by, in contract to carry 176 
 
 As, that hay was not intended to be included in 176 
 
 See Noyes v. Canfield 176 
 
 Usage as to delivery of, at minor stations, binding, when 188 
 
 '■FUR." 
 
 Explained by usage 173 
 
 Q. 
 
 GAVELKIND. 
 
 Custom of, what is 10 
 
 GENERAL CUSTOMS. 
 
 What are •. 6 
 
 Distinction between, and particular 6 
 
 Evidence of 8 
 
 How and by what, evidenced 8 
 
 •GENERAL USAGE. 
 
 Becomes part of law merchant, when 14 
 
 Judicially noticed, when note {d) 14 
 
 GLASS. 
 
 Usage as to sale of, in boxes, who liable for breakage 211 n. 
 
 See Mixer v. Coburn 211 n. 
 
 As to size of, usage at place of manufacture control 210-212 
 
 •" GOOD BARLEY." 
 
 Usage admissible to explain meaning of. 128 n. 
 
 See Hutchinson v. Bowker 128 n. 
 
 ^'GOOD CUSTOM COWHIDE BOOTS." 
 
 Usage may explain 175 
 
 See Wait v. Fairbanks 175 
 
 GOOD HUSBANDRY. 
 
 What is, maybe shown by usage 43 n. 
 
 "GOOD MERCHANTABLE SHIPPING HAY." 
 
 Usage may explain 175 n. 
 
 See Fitch v. Carpenter 175 n. 
 
 GOODS. 
 
 Custom to deliver pro rata, binding when 108 «. 
 
 See Bliveni). New England Screw Company 108 ra. 
 
 Usage as to paying freight on, not admissible, when 109 n. 
 
340 INDEX. 
 
 GRACE. Page 
 
 See Days of Grace. 
 " GRAIN." 
 
 Meaning of in lease giving tenant privilege of sowing, cannot be 
 
 shown by usage, when 90 n. 
 
 See Smith v. Clayton 90 n. 
 
 GRANTS. 
 
 Construed by usage, when 42 
 
 Not admissible when destructive of, 42 n. 
 
 Rule in Horner v. Watson 42 n. 
 
 "GULF OF FINLAND." 
 
 Location of by usage 127 n. 
 
 H. 
 
 HALDING V. PIGGOTT. 
 
 Rule in as to effect of usage, as to termination of tenant's 
 
 estate 45 re., 49 n. 
 
 As to right of tenant to customary allowances 49 n. 
 
 As to right of tenant to away-going crop 49 n. 
 
 HOLIDAYS. 
 
 Usage determines right of workman to in some cases 51 
 
 Usage for servant to have, binding 243 
 
 " HORN CHAINS." 
 
 May be explained by usage Ill 
 
 See Swett v. Shumway Ill 
 
 HUSBANDRY. 
 
 Good, may be shown what is, by usage 43 ra. 
 
 Custom as to course of. 61 
 
 Rule in Dalby v. Hunt 61 
 
 HUTTON V. WARREN. 
 
 Rule in as to effect of usage on written lease or contract 45 n., 71 
 
 As to right of tenant to allowances for seeds, &c 62 
 
 I. 
 
 ICE HOUSE. 
 
 Custom for tenant to enter to fill, before term begins, good, 
 
 when 48 n. 
 
 See Stone v. McClay 48 ti. 
 
 IDDINGS V. NAGLE. 
 
 Usage as to tenant's right to take away straw 50 n> 
 
 ILLEGAL. 
 
 Usage can never prevail 180 n. 
 
 ILLEGAL CUSTOM. 
 
 Void 27 n. 
 
INDEX. 341 
 
 ILLEGALITY. p^ob 
 
 May be shown to defeat contract 86 
 
 " IMMEDIATE DELIVERY." 
 
 Meaning of phrase explainable by usage, when 56 n. 
 
 Rule in Neldon v. Smith 56 n. 
 
 INCIDENTS. 
 
 To contracts, added by usage, when 52 n., 53 
 
 Rule in Brown v. Bryne 52, 53 
 
 General rules as to admission of usage to add to contracts 127 n. 
 
 Instances 127 n. 
 
 Sought to be added by usage must not conflict with contracts.... 127 n. 
 
 Or change relation of parties 128 n. 
 
 See Baker v. Drake 128 n. 
 
 Usage adding 249 
 
 INCOMING TENANT. 
 
 Usage as to rights of. 68-77 
 
 "INDIAN ISLAND." 
 
 " Mauritius " held by usage as being an 189 
 
 "INEVITABLE DANGERS OP THE RIVER." 
 
 Usage admissible to explain, when 82 n. 
 
 Rule in Gordon v. Little 82 n. 
 
 '■ INHABITANT." 
 
 Explained by usage 172 
 
 INSURANCE. 
 
 Contract, subject to usages of trade 23 n., 26 n. 
 
 Marine, subject to in settlement of average losses 26 n. 
 
 As to vessel stopping at certain unnamed ports 26 n. 
 
 Clauses in policy of, may be explained by 23 n. 
 
 General warranty in policy of, controlled by, when 51, 55 n., 57 n. 
 
 Words used in, explainable by usage, when 54 n. 
 
 "Roots" '. 54 n. 
 
 See Coit v. Commercial Insurance Company 55 n. 
 
 "Sea letter" 55 n. 
 
 See Sleight v. Hartshorne 55 n. 
 
 " Cargo " 55 m. 
 
 See Allegre v. Maryland Insurance Company 55 n. 
 
 What is "proof and adjustment" of loss 55 n. 
 
 See Allegre v. Maryland Insurance Company 55 n. 
 
 " Warranted to depart without convoy " 55 n. 
 
 See Lethulier's Case 55 n. 
 
 Ports not actually in certain sea, may be shown to be so regarded 
 by usage 54 
 
 Rule in Uhde v. Walters 58 
 
 Marine policj', cannot by usage be extended to cover goods 
 
 shipped by land 81 n. 
 
 Rule in Smith v. Mobile Navigation Company 81 n. 
 
342 
 
 INDEX. 
 
 mSJIRANCB— Continued. page 
 
 Insurer cannot set up usage to deduct from losses when policy 
 
 provides none shall be made 83 n. 
 
 See Swamscott Machine Company v. Partridge 83 n. 
 
 See also Hall v. Janson 83 n. 
 
 Policy cannot be varied in its plain terms by usage 89 
 
 See Kaines v. Knightly, Hoare v. Graham, Pickering v. Davyson.. 89 
 
 Usage as to settlement of partial loss vyhen vessel has been re- 
 paired, applies when 101 n. 
 
 See Eager v. Atlas Insurance Company 101 n. 
 
 Usage as to, upon "ship, &c., boat and other furniture," 132 n. 
 
 See Blackett v. Royal Insurance Company 132 n. 
 
 Special usage of insui-era not binding on assured, unless 138 n.^ 
 
 See Hartford Insurance Company v. Harmer 138 n. 
 
 Of insurers, as to risk attaching before policy issues, binding 138 n. 
 
 See Baxter v. Massasoit Insurance Company 138 n. 
 
 Effect of local usage upon contracts of. 248, 252 n. 
 
 Illustrations 248 n., 252 n. 
 
 Pine, effect of usage upon contracts of. 288, 299 
 
 INSURANCE COMPANIES. 
 
 Usage of, as to property of agents in list of policies procured by 
 
 them 26 n. 
 
 " IN REGULAR TURNS OF LOADING," 
 
 Meaning may be shown by usage, when 138 n. 
 
 /See Greaves v. Legge 139 n. 
 
 " IN TURN TO DELIVER." 
 
 In charter party, usage may explain 54 n. 
 
 When not 54 n. 
 
 INTEREST. 
 
 Usage permitting, contrary to statute, is void 25 n., 26 n. 
 
 Usage of individuals to charge, binding when 126 n. 
 
 See Watt v. Hooh ; Searson v. Heyward ; Parsons v. Goodnow 127 n. 
 
 Usage of persons to charge, binding when 159 n. 
 
 See Green v. Disbrow 159 n. 
 
 J. 
 JAIL LIMITS. 
 
 Usage not admissible to extend 214 
 
 JUDICIAL DECISIONS. 
 
 Recognition of customs by 7 cdso note ^ 
 
 K. 
 KENT. 
 
 Custom of 11 
 
INDEX. 343 
 
 "LADY-DAY." "^ L- P^a^ 
 
 Explained by usage 74 
 
 LANDLORD. 
 
 Usage permitting re-entry by, in mode other than that provided 
 
 by law, void 25 n. 
 
 LANDLORD AND TENANT. 
 
 Usage governs rights of parties, how far 43-77 
 
 See Tenant, also Lease. 
 
 LATENT AMBIGUITY. 
 
 Usage to explain. See Ambiguity. 
 
 LAW. 
 
 The offspring of usages and customs 2 
 
 Merchant 12 
 
 Unwritten '. 7-9 
 
 Second branch of 9 
 
 Vitality and conditions of. 19-22 
 
 Habitual 36. 
 
 Improvement of. 38 
 
 Practice as to admission of usage obsolete 21 
 
 And evidence 115 
 
 And evidence, relation between 115 
 
 Distinction between 116 
 
 " LEVEL." 
 
 In mining contracts, explainable by usage when 58 
 
 LEASES. 
 
 Usage admissible to add incidents to when 43 
 
 Usage to explain meaning of covenants in when 43 n. 
 
 Not to vary plain terms of. 43 n. 
 
 Rule in Clark v. Roystone 43 n. 
 
 Usage impliedly annexed to, when 43-77 
 
 Usage of particular estate, not admissible 45 n. 
 
 Rule in Halding v. Piggott 45 n. 
 
 Muncey v. Dennison 45 n. 
 
 Wormersley v. Dally 45 n. 
 
 Usage as to preparation and expense of 193 
 
 See Tenant. 
 
 LEGAL IMPORT. 
 
 Of contract cannot be varied by usage 94 n. 
 
 LEGAL MEMORY. 
 
 Time of. .' note (j), 17 
 
 LIMITATIONS. 
 
 Statute of, evidence of private usage cannot affect 278 n. 
 
 Hursh V. North 278 n. 
 
344 INDEX. 
 
 LIEN. paob 
 
 May be abrogated by 191 
 
 See Mitchell v. Biatt, illustrating 191 n. 
 
 Contract for, may be created by usage 261 n. 
 
 Extent of proof required to support 262 n. 
 
 LLOYD'S COFFEE HOUSE. ' 
 
 Usages of not admissible when 129 n. 
 
 SeeGoh&y V. Lloyd, Bartlett v. Pentland 129 ». 
 
 See Usages. 
 LOCAL USA-GE. 
 
 Binding when .^ 130-133 
 
 Existence of in one place, does not warrant presumption that it 
 exists in another 135 
 
 See Reynolds v. Continental Insurance Company 136 
 
 But existence in one place may be sufficient to establish in 
 another, when 137-139 
 
 See Citizen's Insurance Company v. McLaughlin 139 
 
 Of place of manufacture of goods binding, when 139 
 
 See Star Glass Company v. Morey 139 
 
 Cannot vary construction of contract, unless 135 n. 
 
 When sufficient to confer rights 135 n- 
 
 See Knox v. Artman 136 n. 
 
 Of part, as to stowage of goods 136 n. 
 
 See Baxter v. Leland 136 n. 
 
 As to commissions on goods directed to owner of the cargo 136 n. 
 
 See Jellison v. Lee 136 n. 
 
 As to perquisites of master of vessel 136 n. 
 
 See Wilcocks v. Phillips 136 n. 
 
 As to usage in reference to compensation for services where 
 
 price is agreed on 136 n. 
 
 See Cadman v. Armstrong 136 n. 
 
 Making ship owners liable for negligence of agents, invalid 136 n. 
 
 See Walker d. Transportation Company 136 n. 
 
 That master of vessel cannot bind the owners in a particular 
 
 port for necessaries is unreasonable 136 n. 
 
 See Bliss v. Hopes 136 n. 
 
 As to sale of stocks, " dividends or surplus dividends " not admis- 
 sible to show that it applies only to dividends declared 137 n. 
 
 See Lombardo v. Case 137 n. 
 
 Person not within the class affected by, cannot avail himself of 
 
 usage.. 137 n. 
 
 Overjjftan v. Hoboken Bank 137 n. 
 
 In action against railroad company for injuries, plaintiff may 
 
 show usage for company to carry passengers in baggage car, 137 n. 
 
 See O'Donnell v. Alleghany Railroad Company 137 n. 
 
 That on contract for delivery of property on future day, pur- 
 chaser must put up margin, not valid 137 n. 
 
INDEX. 345 
 
 LOCAL VSAGB— Continued. page 
 
 See Oelrichs v. Ford 137 n. 
 
 Not binding when 134 W.-139 n. 
 
 Illustrations 134 note *-139 n. 
 
 Elements requisite to make it binding 134 n.-139 n. 
 
 See Mears v. Waples 134 n. 
 
 Not admissible to control rules of law 135 n. 
 
 At place of shipment not binding on consignee, unless 134 n., 138 n. 
 
 Of a particular port will not control or qualify terms of insur- 
 ance policy 134 n. 
 
 See Rogers v. Mechanics' Insurance Company 134 n. 
 
 Cannot vary express agreement. 135 n. 
 
 Cannot add incidents to contract contrary to rules of general law.. 135 n. 
 
 Cannot raise a warranty where caveat emptor applies 135 n. 
 
 See Hawes v. Lawrence 135 n. 
 
 Or qualify unambiguous contract 135 n. 
 
 Or contradict its legal import 135 n. 
 
 Or overcome plain rule of comm.ercial law 135 n. 
 
 Not sufficient to authorize pledgee of stock or other property to 
 
 sell before default 135 n. 
 
 See Dykers v. Allen 135 n. 
 
 Or to alter the legal effect of an insurance policy 185 n. 
 
 See Stebbins v. Globe Insurance Company 135 n. 
 
 Or to authorize other than property sold to be delivered to fill 
 
 contract of purchase 135 n. 
 
 See Beals v. Terry 135 n. 
 
 Or to treat as a delivery, that which in law is not 135 to. 
 
 See Suydam v. Clark 135 n. 
 
 Of a particular wharf in a port, not known to master of vessel 
 
 as to mode of discharging cargo, not binding on him 138 n. 
 
 See Crancher v. Wilder 138 n. 
 
 Of insurers, not binding on assured unless known to him 138 to. 
 
 Of insurers as to risk attaching before policy issues, binding 138 to. 
 
 See Baxter v. Massasoit Insurance Company 138 ra. 
 
 Of certain town to sell lumber without measuring, binding, 
 
 when 139 ra. 
 
 See Lee i;. Kilburn 139 to. 
 
 Instances of invalid 180 n., 181 ra. 
 
 Not binding if unreasonable 207 to. 
 
 As to paying seaman's wages to shipping agent 257 ra. 
 
 Illustration of rule as to those not reasonable 207 to. 
 
 As to delivery of goods 207 ra. 
 
 Not admissible to show that acts of a similar character done 
 
 elsewhere, are proper 213 ra. 
 
 See Hill Manufacturing Company v. Providence &c. Company... 213 
 
 Usages. 
 
346 INDEX. 
 
 LOGS. PAGE 
 
 TJsage as to measurement of. 177 
 
 See Stone v. Bradbury 177 
 
 LONDON. 
 
 Customs of, what are U 
 
 Customs, foreign attachment 11 
 
 Customs, market overt 11 
 
 Customs, feme coverts as sole traders U 
 
 Customs defining liveryman's office 11 
 
 Customs, how proved 11 
 
 LORD DENMAN. 
 
 Views of, upon propriety of admitting usage to explain con- 
 tracts 10& 
 
 See Freeman v. Loder, 11 Ad. & El. 597 106 
 
 M. 
 yiAIL. 
 
 Usage as to sending money to creditor by in certain cases 26 n, 
 
 MARKET OVERT. 
 
 Custom of London as to 11 
 
 VTARRIAGE SETTLEMENTS. 
 
 Usage as to preparation and expense of. 193- 
 
 MARRIED WOMEN. 
 
 Customs conferring certain rights upon in London 11 
 
 MARINE INSURANCE. 
 
 See Insurance. 
 
 ' MARTINMAS." 
 
 Explained by usage 74 
 
 MASTER. 
 
 Usage to send apprentice to sea, not valid 112 n. 
 
 See Randall v. Rotch 112 n. 
 
 MASTERS OP STEAMBOATS. 
 
 Usage as determining method of hiring 26 n. 
 
 MASTER OF VESSEL. 
 
 Usage permitting to sell cargo without necessity, is void 26 n. 
 
 As to authority to bind owners and vessel 26 n. 
 
 Usage that money for freight taken on board by him is his, and 
 
 that he alone is liable on the contract, admissible 82 n. 
 
 Rule in Halsey v. Brown 82 n. 
 
 Not bound by usage of a wharf, in a port unknown to him, as to 
 
 mode of discharging cargo 138 n. 
 
 See Crancher v. Wilder 138 n. 
 
INDEX. 347 
 
 MEASUREMENT. p^o,. 
 
 Usage as to, binding when 216-219 
 
 See Walls v. Bailey 216 n. 
 
 Usage as to 254 
 
 Rule in Bottomley v. Forbes 254^5 
 
 MECHANICS. 
 
 Usages of, as to measurement 216-219 
 
 MERCANTILE CUSTOMS. 
 
 Not binding on persons acting in different character 104 n. 
 
 See Nichols v. De Wolf. 104 n. 
 
 Customs of Merchaitts. 
 
 MERCANTILE LAW. 
 
 Of what it consists 13 
 
 MERCHANTS. 
 
 See Custom of Merchants. 
 
 MEXICO. 
 
 Custom has force of law in 106 n. 
 
 May overturn general legal rule 106 n. 
 
 Or positive written law 106 n. 
 
 See Schmidt v. Huntington, 1 Gal. 55 106 n. 
 
 •' MICHAELMAS." 
 
 Explained by usage 74 
 
 MILK TRADE. 
 
 Usage of, as to selling, binding when Ill 
 
 See Page ■;;. Cole Ill 
 
 MISSISSIPPI RIVER. 
 
 Usage as to navigating steamers on, valid when 27 n. 
 
 "MOD." 
 
 In will of sculptor, usage admitted to show what it was usually 
 
 understood to mean in the trade 104 n. 
 
 Goblett V. Beeohey 104 »i. 
 
 "MONTHS." 
 
 Explained by usage 173 
 
 MORE OR LESS. 
 
 Usage not admissible to explain when 264 
 
 MUNCEY V. DENNISON. 
 
 Usage as to rights of tenant to compensation for straw, &c 45 n. 
 
 N. 
 NAVIGATORS. 
 
 Custom of, what is 12 
 
 Courts notice judicially 12 
 
 Usage as to mode of, on certain rivers valid, when 27 n. 
 
348 INDEX. 
 
 NEGLIGENCE. page 
 
 Usage does not excuse 122 n. 
 
 See Gehagan v. Boston, &c., Eailroad Company 122 n. 
 
 Usage admissible to determine whether party has been guilty of, 
 
 when 208 n., 213 «.-214 n. 
 
 See Maxwell v. Eason 209 n. 
 
 Ground of admissibility of. 209 n. 
 
 See Barber v. Brace 209 n. 
 
 Effect of usage in determining questions of. 245 n., 247 n. 
 
 • NET CASH." 
 
 Usage admissible to explain when 185 
 
 !^EW YORK. 
 
 Rules as to admissibility of usage, in 94 n. 
 
 ^OTES. 
 
 Usage as to effect of barter and exchange of, void when 25 n. 
 
 As to discharge of buyer, in certain cases 25 n. 
 
 Effect of usage upon 194 
 
 Instances 194 
 
 'NUMBER ONE LOGS." 
 
 Usage admissible to explain 189 
 
 O. 
 
 )MISSIONS. 
 
 In leases may be supplied by custom 50 
 
 'ON THE STEAMER." 
 
 In bills of lading, explainable by usage 182 
 
 OPINIONS. 
 
 Of witnesses not sufficient to establish usage 119, 123 n. 
 
 See Chesapeake Bank v. Swain 123 n. 
 
 )RAL EVIDENCE. 
 
 See Evidence ; ako, Parol Evidence. 
 )UT-GOING TENANT. 
 
 Bight to take crops 43-77 and notes. 
 
 P. 
 
 PALM OIL. 
 
 Best, usage admissible to show what is 220 
 
 ^AEOL EVIDENCE. 
 
 Of usage, admissible to ascertain intention of parties to leases, 
 
 &c., when 45 
 
 Rule in Wigglesworth v. Dallison 45 n. 
 
 Rule in Clark v. Roystone 43 n. 
 
 When admissible to show sense in which words are used 
 
 54-60 notes, 80-85 and iwtes. 
 
INDEX. 349 
 
 PAROL EVIDENCE— Cbnfonued. vaw 
 
 When court must determine 80 
 
 How words must be understood, if possible 80 
 
 Admissible to defeat contract, when 85-86 
 
 To show that contract was dissolved, modified or extended 85-88 
 
 Admissible to explain written contract, when 198-242 
 
 Instances illustrating See notes 198-221 
 
 Reason for admitting 198 
 
 Contract for sale of casks of lead, explainable by 198 n. 
 
 See Keller v. Webb , 198 n. 
 
 Admissible to apply contract to subject matter of. 203 
 
 To identify the parties to contract, when 203 
 
 That contract was intended for the joint benefit of parties, when, 203 n. 
 To show whether agent or principal was intended to be bound 
 
 by contract 203 w. 
 
 To show purpose for which note was given 203 n. 
 
 To show object of assignment of a note or claim 203 n. 
 
 That an order was intended to be paid in specific property 203 n. 
 
 When not admissible 203 n. 204 n. 
 
 Exceptions to general rule rejecting 195-242 
 
 Illustration of exceptions 195 re., 227 ii. 
 
 See Usages, also Evidence. 
 
 PARTICULAR. 
 
 Usage not binding, when 45 n. 
 
 Rule in Wormersley v. Dally, as to estate 45 re. 
 
 PARTICULAR CUSTOMS. 
 
 Origin of. 8, 9 
 
 Validity of rules for j 9, 12 
 
 What are 6,9 
 
 Distinction between, and general 6 
 
 PARTNERS. 
 
 Presumption as to extent of interest of each in firm is founded 
 
 on usage 172 re. 
 
 PASTURE. y 
 
 Custom to depasture another's land, void 17 re. 
 
 PAYMENT. 
 
 Usage as to extra, not inconsistent with agreement, when 243 
 
 "PERILS OP THE SEA." 
 
 Usage not admissible to show that injury by rats is included in.. 56 re. 
 
 Rule in Aymar v. Astor 56 re. 
 
 PHRASES. 
 
 Usage admissible to explain 55 re., 57 re. 
 
 What is within scope of " whaling voyage " 55 n. 
 
 "In turn to deliver" 54 re. 
 
 " Immediate delivery " 56 re. 
 
 "Store fixtures" 56 re. 
 
J50 INDEX. 
 
 PHRASES — Continued. page 
 
 "British weight" 56 re. 
 
 " Cotton in bales " 57 n. 
 
 "Wrought and unwrought " 64 
 
 Usage may explain when 57 
 
 " Coppered ship " 57 n. 
 
 " Eighteen pockets of Kent hops " 129 n. 
 
 See Spicer ti. Cooper 129 n. 
 
 " 1000 rabbits " means 1200 129 n. 
 
 See Smith v. Wilson 130 n. 
 
 Bronson, J., in Hinton v. Locke, questioning first-named case, 130 n. 
 
 Macy V. Whaling Ins. Co., approving 130 n. 
 
 What " in turn to deliver " in a charter-party to Algiers, means, 129 n. 
 
 See Robertson v. Jackson 129 n. 
 
 " In regular turns of loading" 138 n. 
 
 See Leidman v. Shultz 139 n. 
 
 Lady (lay 74 
 
 Wet oil 192 
 
 Calcutta linseed 192 
 
 Gulf of Finland 127 m. 
 
 Pig iron 173 
 
 Good custom cowhide boots 175 
 
 Good merchantable shipping-hay 175 
 
 " Deepen ditch" 165 
 
 "Product of hogs" 176 n. 
 
 "Homestead farm" 176 
 
 "On the steamer," in bill of lading 182 
 
 "British gold" 182 
 
 "A good delivery " 183 
 
 "Summer leazes " 184 
 
 "After grass" 184 
 
 "Net cash" 185 
 
 "Godly preachers of Christ's Holy Gospel " 189 
 
 "Mauritius Island " 189 
 
 "Amelia Island" 189 
 
 " Mess pork of Scott & Co." 190 
 
 "No. 1 logs," usage admissible to explain 189 
 
 In bills of lading explainable by usage 192 
 
 Instances j 192 
 
 "Pitch-pine timber" 190 
 
 "Eec'd on acc't of Bowman & Lay for J. Mackinson" 190 
 
 "Sail from St. Domingo in the month of October" 191 
 
 'PIG lEON." 
 
 Explained by usage 173 
 
 PITCH-PINE TIMBER. 
 
 Explainable by usage 190 
 
 See Jones v. Clark 190 
 
INDEX. 351 
 
 PORK TRADE. 
 
 Usage of, effect of. 257 
 
 &6 illustrating Hitchcock v. Hunt '. 257 
 
 PRESCRIPTION. 
 
 Differs from custom, how note (h) 15 
 
 PRESUMPTION. 
 
 That parties contract in reference to usage or custom, when 45 
 
 Does not apply to usages of a particular estate 45 to. 
 
 Rule in Wormersly v. Dally 45 n. 
 
 That parties contracted in reference to usage, by what warranted, 64 
 contract in reference to usage 114 
 
 On what predicated 114 
 
 Elements necessary to sustain 114^ 117 n. 
 
 That parties contracted in view of usage, may be rebutted 133 
 
 From usual course of business 171 n., 172 n. 
 
 See Dana v. Kenible, as to letter deposited in usual place for, in 
 
 hotel , 171 w. 
 
 Arising from course of business in private affairs 172 
 
 See Hagedorn v. Reed 172 n. 
 
 Arising from course of business by individual firms and corpora- 
 tions 172 n. 
 
 See Hine 1;. Pomeroy 172 n. 
 
 Farrar v. Beswick ; Roberts v. Bethell ; Cunningham v. Fon- 
 
 blanque 172 n. 
 
 PRIME BACON. 
 
 Usage as to average taint 132 n. 
 
 See Yeates v. Pym 132 n. 
 
 PRINCIPAL AND AGENT. 
 
 How far usage is admissible to control relation of. 270 
 
 Never to override positive instructions 270-272 
 
 As to undisclosed principal 272-274 
 
 Agent's liability modified by usage 273 
 
 See Fleet v. Murton and Humfrey v. Dale 273 
 
 Aho Plutchinson v. Latham 272 
 
 Usage admissible to fix respective liability of 274 
 
 Usages, as affecting scope of agent's authority 285 
 
 PRINTER. 
 
 Of newspaper, usage to charge for advertisements 53 n. 
 
 PRIVATE USAGE. 
 
 As to method of doing business not admissible, when 123 n. 
 
 &e Pocock v. Henderson 123 m. 
 
 Part of contract, when 126 n. 
 
 &e Hursh -y. North 126 m. 
 
 Long existing, its origin from due authority, if essential, will be 
 
 presumed, when 139 n. 
 
 See Stourbridge v. Clark 139 n. 
 
552 INDEX. 
 
 i'RlVATE VSAGIl— Continued. page 
 
 May be shown to show that certain thing was or was not done, 
 
 when 160 n. 
 
 See Smith v. Clark 4 160 n. 
 
 Knowledge of, by party to be charged by, must be shown 159 n. 
 
 See Magoverning v. Staples 159 n. 
 
 Arising from persons' usual course of business, effect of. 172 n. 
 
 See Hine v. Pomeroy, Dana v. Kemble 172 n. 
 
 In private offices 172 n. 
 
 See Hawkes v. Salter 172 n. 
 
 Not binding unless known 205 n. 
 
 Instances illustrating 205 n. 
 
 See Sawtelle v. Drew 206 n. 
 
 Of individuals, binding when 277-282 
 
 Of banks 277 n., 279 n. 
 
 Admissible as corroborative, when 277 n. 
 
 See Hine v. Pomeroy 277 n. 
 
 Hotchkiss 1). Artisans' Bank 278 n. 
 
 When not 278 n. 
 
 See Kinne v. Ford and Park v. Miller 278 n. 
 
 Not to take case out of statute of limitations 278 n. 
 
 See Hursh v. North 278 n. 
 
 Elements requisite to make effective 280, 281 note * 
 
 See Eaves 1). People 281-2 
 
 Of Stock Exchange 282 
 
 As to charging interest on account 279 n. 
 
 As to filling orders for goods 279 n. 
 
 See N. E. Screw Company v. Bliven 279 n. 
 
 Not admissible, if variant from express contract 279 n. 
 
 See Piscatiqua Bank v. Custer 279 n. 
 
 Also Grin n ell a;. Western Union Telegraph Company 279 m. 
 
 And Nanatuck Silk Company v. Fair 279 n. 
 
 'PRODUCT OF HOGS." 
 
 Usage may explain what is meant by, in contract for 176 n. 
 
 Stewart v. Smith 176 n. 
 
 i'RO RATA. 
 
 Custom to deliver goods, binding when 108 n. 
 
 See Bliven ■;;. New England Screw Company 108 n. 
 
 PUBLIC OFFICERS. 
 
 Usage of one, not binding on others 214 
 
 Q. 
 
 QUITTING. 
 
 Possession by tenant, custom as to, prevails when 62 
 
 Rule in Webb v. Plummer 62 
 
INDEX. 353 
 
 RAILROAD COMPANIES. ^' vaoe 
 
 Usage of, as to allowing contractors free use of road, effect of..... 180 n. 
 Usage of, as to delivery of freight at minor stations, binding 
 
 when 188 
 
 See McMasters v. Pennsylvania Railroad Company 188 
 
 REASONABLE. 
 
 Custom must be 23 
 
 What is meant by reasonable 24, 26 n. 
 
 What are not 24r-27 
 
 Instances note {w) 25 
 
 Custom injurious to the public, is not 24 
 
 Custom repugnant to law or reason, is not 24 
 
 RECEIPT. 
 
 May by usage, be shown to be bill of sale 167 n, 
 
 See Dawson v. Kittle 168 n. 
 
 Usage admissible to explain 190 
 
 RE-ENTRY. 
 
 Usage permitting, in mode other than provided by law, void 25 n. 
 
 " RIGHT AND GOOD WILL." 
 
 Of supplying custom, usage admissible to explain when Ill 
 
 See Page v. Cole Ill 
 
 ROAD. 
 
 Custom of, whatis 12 
 
 Courts notice judicially 12 
 
 Custom of teams passing over, binding 12 
 
 Compliance with usage of, no excuse for violent or negligent 
 
 collision 246 n. 
 
 .See Bolton v. Calder 246 re. 
 
 ROOM. 
 
 Meaning of, explainable by usage, when 188 
 
 See Daniels v. Hudson River Insurance Company 188 
 
 "ROOTS." 
 
 Usage may explain meaning of, when 54 n. 
 
 S. 
 SALE. 
 
 Of goods, usage as to term of credits where not sold for cash and 
 
 time is not named 108 n. 
 
 See Farnsworth v. Chase 108 n. 
 
 Usage that goods on condition, title still remains in vendor, valid 122 n. 
 
 See Farlow v. Ellis 122 n. 
 
 By sample, imports warranty, when 122 n. 
 
 See Gunther I). Atwell... 123 re. 
 
 SALE ON CREDIT. 
 
 Custom as to 124 
 
 22 
 
554 INDEX. 
 
 ' SALT." PAGE 
 
 Explained by usage 173 
 
 !AND. 
 
 Custom to take from another's land, void 17 n. 
 
 SAMPLE. 
 
 Usage as to sales by 264 
 
 ' SEA ELEPHANTS." 
 
 Usage admissible to show, are embraced by " whaling voyage ".. 55 n. 
 
 lEA-WEED. 
 
 Custom to take from another's land, void 17 n. 
 
 Custom to haul Qver another's land, upheld 17 n. 
 
 Rule in Knowles t). Dow 17 re. 
 
 'SEA LETTER." 
 
 Usage may explain meaning of. 55 ?i. 
 
 SEEDS. 
 
 Custom as to allowances for 62 
 
 Eule in Hutton v. Warren 62 
 
 SERVANT. 
 
 Usage as affecting, right to holidays 51 
 
 Usage of, not binding on master, when 121 n. 
 
 See Cincinnati &c. Company v. Beal 121 n. 
 
 Usage as to dismissal of 196 ra. 
 
 For season, usage as to when season ends 196 n. 
 
 See Given v. Charron 196 n. 
 
 When usage admissible to establish usages of 196 n. 
 
 See Pursell ii. McQueen 196 n. 
 
 Usage not admissible to contradict contract for 196 n., 197 n. 
 
 See Belford v. Flowers .*. 196 n. 
 
 Also, Phillips V. Starr 196 n. 
 
 Usage as to, giving certificate of honorable discharge of 196 n. 
 
 SERVICES. 
 
 Usage admissible to explain contracts for, when 196 n. 
 
 SETTLEMENTS. 
 
 Marriage, usage as to preparation and expense of 193 n. 
 
 SHIPS. 
 
 Customary rule for navigation of 12 
 
 SHINGLES. 
 
 Usage as to estimating thousand of 108 n. 
 
 See Soutier v. Kellerman 108 n. 
 
 SPORTING. 
 
 Parlance, explained by usage 193 
 
 SPORTING USAGE. 
 
 As to 193 
 
INDEX. 355 
 
 "SQUARE YARD." p^™ 
 
 Usage admissible to explain, when 91 n. 
 
 &e Walls v. Bailey 91 re. 
 
 STATUTE. 
 
 Usage admissible to explain, when 23 re. 
 
 Not when statute has fixed meaning of word 55 re. 
 
 Usage admissible to explain language of. 177 
 
 See United States v. Breed 177 
 
 Contra, see Attorney-General v. The Cast Plate Glass Company.... 178 
 
 Fixing fees of officer, usage cannot change 179 re. 
 
 Providing method in which certain things shall be done, usage is 
 
 not admissible to establish a different mode 178 re.-181 re. 
 
 Construction put upon by officers, competent as evidence, 
 
 when 179-181 
 
 Rules as to 180-181, also notes. 
 
 Usages in opposition to, invalid 181 re.-182 
 
 Rights limited by, cannot be extended by usage 214 
 
 STEAMBOATS. 
 
 Customary rule for navigation of. 12 
 
 STOCKS. 
 
 Usage of brokers not admissible to explain sales of, when 265 
 
 STOCK EXCHANGE. 
 
 Customs of, how far binding on persons ignorant of. 282 
 
 As to notice to broker «. 282 
 
 Illustration of doctrine 284r-286 
 
 STONE CUTTERS. 
 
 Usage of, to charge for patterns, not admissible when 112 re. 
 
 See Davis v. Galloupe 112 re. 
 
 STONE V. McCLAY. 
 
 Usage as to tenant's right to away-going crops 48 re. 
 
 ^' STORE FIXTURES." 
 
 Usage admissible to explain meaning of 56 re. 
 
 Rule in Whitmarsh v. Conway Fire Insurance Company 56 re. 
 
 Explainable by usage... 187 
 
 See Whitmarsh v. Conway Insurance Company 187 
 
 STORY, J. 
 
 Strictures by, upon admission of usage 107 
 
 See The Schooner Reeside, 2 Sum. (U. S.) 567; Darnell v. Colum- 
 bia Insurance Company, 2 id. 367 107 
 
 STOEVER V. WHITMAN. 
 
 Usage does not give landlord right to enter for forfeiture in man- 
 ner different from that provided by law 48 re. 
 
 STRAW. 
 
 Usage as to tenant's right to take away 50 re. 
 
 Rule in Iddings v. Nagle 50 re. 
 
J56 INDEX. 
 
 SUGAR, LOAF. pa«e 
 
 Usage admissible to explain meaning of. 177 
 
 5UGAR MILL. 
 
 Contract to build, usage admissible to show when should be com- 
 pleted 176 
 
 See Eagley v. Goodloe 176 
 
 'SUMMER LEAZES." 
 
 Usage admissible to explain , 184 
 
 T. 
 
 ' TANNING BUSINESS." 
 
 Usage admissible to explain 64 n. 
 
 Rule in Barger v. Caldwell 54 n. 
 
 'TEAM." 
 
 Meaning of may be shown by usage, when 91 n. 
 
 See Ganson v. Madigan 91 n., 176 
 
 TENANT. 
 
 Acts of, cannot defeat customary right of estate 18 
 
 Rights of, fixed by usage, when 38-77 and notes. 
 
 See analytical digest of each case in index. 
 
 Custom for, to enter to fill ice house before his term begins, good 
 
 when 48 w. 
 
 Term of, may be fixed by usage 50 n. 
 
 Termination of, regulated by 50 ra. 
 
 Qualified by Moore v. Eason 50 n. 
 
 Usage not admissible when excluded by lease 50 
 
 Usage as to terms on which he may quit 70 
 
 As to time of quitting 50 n, 
 
 TENANCY. 
 
 Effect of usage upon 38-77 and note. 
 
 See Tenant. 
 TERMS. 
 
 Addition of to contracts 267-27(5 
 
 See Contracts ; Incidents ; Usage. 
 ' THOUSAND." 
 
 Explainable by usage, when 54 
 
 Shingles sold by, usage as to what is 108 n. 
 
 See Soutier v. Killerman 108 n, 
 
 'TIGER ISLAND." 
 
 By usage may be shown as comprehended in " Amelia Island ". 189 
 CIMBER. 
 
 Usage of trade in 254 - 
 
 rOBACCO. 
 
 Sale of, by sample, imports warranty, when 122 n, 
 
 S'ee Gunther v. Atwell 123 n. 
 
INDEX. 357 
 
 TON. PiOB 
 
 Usage to require more than statutory to be delivered, void when.. 25 n, 
 
 TKADE. 
 
 Usages of, tacitly annexed to contract, when 51 
 
 Instances of 51 n. 
 
 Rule in Brown v. Bryne 52 
 
 Usages of, eflfect of, in commercial contracts 78 
 
 Course of, maybe shown 124 n. 
 
 Usage of, meaning of 128 n., 129 n. 
 
 Of one, not admissible in contracts relating to another 128 n. 
 
 TREES. 
 
 Sale of, to be "not less than one foot high," usage admissible to 
 
 explain 167 n. 
 
 See Barlow v. McKelway 167 n. 
 
 " Not less than one foot high," in contract for sale of trees, 
 
 explainable by usage 167 n. 
 
 See Barlow v. McKelway 167 n. 
 
 TRESPASS. 
 
 Custom justifying, is void note {i) 16 
 
 Illustration , 17 n. 
 
 U. 
 ULSTER. 
 
 Custom of. 2 
 
 Tenant-right of 2 
 
 USAGE. 
 
 In doubtful cases may determine meaning of statute 23 «., 35 
 
 Habitual law 36 
 
 May be resorted to, to ascertain meaning of legislature, when.... 23 n. 
 
 To explain clauses in insurance policies, when 23 »i. 
 
 Cannot be made to vary or contradict contract 23 n., 40 n. 
 
 Must be certain and uniform 23 n., 42 
 
 When may be imported into written contract 23 to., 43, 43-45 to. 
 
 Must be reasonable 25 n., 42 
 
 Instances of unreasonable 25 re., 42 
 
 Local usage binding, when 25 re. 
 
 May be resorted to, to give right of action in some cases 40 to. 
 
 Unreasonable, is void 25 re. 
 
 Instances 25 re. 
 
 Permitting factor to pledge property, void 25 re. 
 
 Permitting master of vessel to sell cargo without necessity, void.. 25 re. 
 
 Permitting interest to be charged contrary to statute 25 re. 
 
 Permitting landlord to re-enter in a manner different from that 
 
 provided by law, void 25 re. 
 
 Permitting death-bed donation to transfer settlement right 25 re. 
 
 Requiring person to deliver as a ton, &c., more than statute pro- 
 vides ■ 25 re. 
 
J58 INDEX. 
 
 JSAGE — Continued. paob 
 
 As to barter and exchange of notes not carrying implied warranty 
 
 of solvency 25 n. 
 
 As to endorsed bill of exchange between this country and 
 
 England 25 w. 
 
 As to discharge of buyer's liability, when note is taken without 
 
 buyer's endorsement 25 n. 
 
 Regulates days of grace allowed on bill of exchange, when 25 n. 
 
 May be shown to have been changed 25 n. 
 
 Special usage of bank, not binding unless 26 n. 
 
 Of insurance companies, as to agent's interest in lists of policies 
 
 procured by him 26 n. 
 
 As to authority of master of vessel to bind owners and vessel in 
 
 rem 26 n. 
 
 As to settlement of average losses under marine policy 26 n. 
 
 As to manner of steamboat master's hiring 26 n. 
 
 As to sending money to creditor by mail 26 n. 
 
 As to vessels stopping at certain ports 26 n. 
 
 Evidence of. 38 
 
 In what cases may annex incidents to contracts 39, 52 
 
 Admissible to arrive at intention of parties 23 n., 40 n. 
 
 Admissible to show in what manner contract was made 40 n. 
 
 Admissible to fix rights of parties 40 n. 
 
 Admissible to corroborate witnesses 40 n. 
 
 Admissible to ascertain meaning of words in contracts.. 23 n. 
 
 Admissible to show terms of parol contract when the parties dis- 
 agree as to terms of 40 n. 
 
 Admissible to show nature of contract 40 n. 
 
 Not to vary or control contract 40 n. 
 
 Admissible on ground that people do what is usual 42 
 
 Admissible to construe grants, when 42 
 
 Not admissible when destructive of a grant or contract 42 n. 
 
 Eule in Horner v. Watson, as to method of mining coal 42 n. 
 
 Not admissible to vary deed. 43 n. 
 
 As to form of deeds 43 n. 
 
 Influence of upon leases 43-77 
 
 May explain covenants in, when 43 n. 
 
 Not to vary terms of 43 n., 81 
 
 Of particular estate, not admissible 45 n. 
 
 Eule in Wormersly v. Dally 45 n. 
 
 Not admissible when excluded by lease 48,50,62 
 
 As to duration of tenant's term 50 n. 
 
 As to tenant's right to away-going crop 43-77 
 
 See Tenant. 
 
 ' Of trade, tacitly annexed to contracts, when 51 
 
 Instances of 51 
 
 Must be certain 52 n. 
 
INDEX. 359 
 
 USAGE — Continued. -p^^^ 
 
 Must be reasonable 52 n. 
 
 Must be notorious 52 n. 
 
 Prevail as to what class of contracts 52 and note. 
 
 Enters into contract by inference 52 n. 
 
 Among merchants to charge interest 52 n. 
 
 Private, binding when 52 n. 
 
 Not binding except on class to which it applies 52 n. 
 
 General, of single town, admissible when , 52 «. 
 
 Not admissible to show that title to property sold on credit does 
 
 not pass until payment 53 
 
 To ascertain meaning of words '. 54^60 and notes. 
 
 See Words. 
 
 Same rules apply as to admissibility of, whether contract is under 
 
 seal or not 58 
 
 Must be well settled and uniformly acted on 58 n. 
 
 Question whether usage is established, is for the jury..., 58 n. 
 
 Knowledge of, by party to be charged by, dispenses with antiquity 58 n. 
 
 As to terms of acts, admissible when 59 
 
 Instances and illustrations 59 
 
 Admissible to supply matters about which contract is silent... 63 n., 64 n. 
 
 As to antiquity of. 63 
 
 Single instance not enough to. establish 64 
 
 Admissible to show what is meant by "wrought and unwrought " 
 
 marble 64 n. 
 
 When commercial, has been adopted by courts of State, usage 
 
 will thereafter be held to conform thereto 65 n. 
 
 Of merchants to regard barter and exchange of notes or bills 
 endorsed without recourse, carries no implied warranty as 
 
 to solvency 65 n. 
 
 Not admissible to add incidents to clear and express contract 65 n. 
 
 But as to matters not provided for in contract 65 n. 
 
 Limiting time for purchaser to examine and return property pur- 
 chased 67 n. 
 
 May overcome effect of implied contract, when 67 n. 
 
 Rule in Sturges v. Buckley 67 n. 
 
 Evidence to establish, must be such as shows certainty and uni- 
 formity 68 n. 
 
 Illustration of evidence insufficient 68 n. 
 
 Not admissible to show authority in commission merchant to 
 
 sell on credit against instructions 68 n. 
 
 As to time when goods sold shall be paid for 68 n. 
 
 As to effect delivery of property sold upon title, prevails when... 69 n. 
 
 As to returning similar articles in place of others 67 n. 
 
 Evidence of, cannot change legal relation of parties 79 n. 
 
 Not admissible to give broker power to sell stock left with him 
 
 as collateral 79 n. 
 
360 INDEX. 
 
 USAGrE — Continued. paoe 
 
 If founded on wrong, or is illegal, immoral, &c., can never pre- 
 vail, however long continued 80 n. 
 
 Not admissible to vary express terms of contract -. 82 n. 
 
 Illustrations of rule 82-83 n. 
 
 Not admissible to vary express contract 82 n., 83-85 
 
 As to show that where property of a certain kind, as " Rochester 
 mills flour," other property of equal quality fills the con- 
 tract 82 n. 
 
 Or that marine policy covers goods in transit overland 82 n. 
 
 Or to show that freight is always paid in a certain way, when the 
 
 contract provides how it shall be paid 82 n. 
 
 Or to establish right of insurer to make certain deductions from 
 
 loss when policy provides that none shall be made. 83 n. 
 
 Admissible to establish collateral agreement 85 
 
 Collateral agreement may be proved by parol 85, 87 n., 88 
 
 Admissible to ascertain intent of parties, when 90 
 
 When word has acquired technical or local meaning may be ex- 
 plained by usage 90 n., 92 n. 
 
 " Zinc ore " in conveyance, usage admitted to show it included 
 
 Franklinite 90 n. 
 
 In relation to ambiguities in contracts 91 
 
 As to extent to which should be admitted to vary , 93 
 
 Legal principles, and 93 
 
 Extent to which should be admitted to vary written contract 93 
 
 Practice of trades 93 
 
 How proved 92 n., 93 n. 
 
 Strong tendency to exclude 94 n. 
 
 Rules as to, in New York 94 n., 95 n. 
 
 Fact that a certain method is very common in a particular trade, 
 
 does not establish usage 93 n. 
 
 Evidence of one person may or may not establish, 93 n. 
 
 Conflicting with rules of common law ...95 n.-106 n. 
 
 General rule as to 95 ra.-106 n. 
 
 As to lien of carrier for general balance 97 n. 
 
 Elementary, notion as to origin of. 98 n. 
 
 Rule in The Case of Tanistry 98 n. 
 
 May be shown to establish warranty in sale of cotton 98 n. 
 
 May be void for unreasonableness 99 n. 
 
 Or because nialum in se 99 n. 
 
 Or nialum prohibitum , 99 jj. 
 
 Or opposed to a statute 99 n.-106 n. 
 
 Or in restraint of trade 99 ?j. 
 
 Or originating in fraud and continued by violence 99 n. 
 
 Or because it is unjust, as giving compensation for labor or 
 
 materials never furnished 99 n. 
 
 Or because it justifies a trespass 4. 99 n. 
 
 Or authorizing agents to violate instructions 100 n. 
 
INDEX. 361 
 
 USAGE — Continued. paob 
 
 Or a master of a vessel to sell the cargo without necessity 100 n. 
 
 Usage expressly or impliedly excluded by contract cannot be 
 
 shown 100 n., 112 n. 
 
 Application of rule against admission of, when it varies contract.. 100 n. 
 As to settlement of partial loss when vessel has been repaired.... 101 n. 
 Unknown to those engaged in trade, effect of, to disprove its 
 
 existence 103 n. 
 
 Evidence that it has been resisted by some, effect of. 103 n. 
 
 As to peculiar sense of words 103 n. 
 
 Evidence to establish, requisites of 104 n. 
 
 Local, not permitted to control general law, except 104 n. 
 
 Change of, cannot operate retrospectively 105 n. 
 
 Of departments of government, courts will not regard, when 105 n. 
 
 To regard usurious contract as not so, bad 105 n. 
 
 As to acknowledgment of deeds 105 n. 
 
 Cannot override a statute 105 n. 
 
 Not sanctioned by law, gains force, how 105 n. 
 
 Local, operative, when 104 n. 
 
 Disregarded in law courts, will be disregarded in equity 106 n. 
 
 May be resorted to, to ascertain meaning of legislature 106 n. 
 
 Overriding common law, difficulty of establishing 95 n., 101 n. 
 
 As to return of corn sold under warranty 109 n. 
 
 As to regarding sale as on six months' credit 108 n. 
 
 As to continuance of advertisement until otherwise ordered 108 n. 
 
 As to filling orders 'pro rata 108 n. 
 
 Eepugnant to contract not admissible 109 n., 112 n. 
 
 True office of 107 
 
 Tendency of later cases 109 
 
 Shingles sold by thousand, usage as to estimating 108 n. 
 
 General doctrine as to, in this country 110 
 
 To add incidents to contracts 110 
 
 Illustrations Ill 
 
 Admissible to add incident to contract 129 n. 
 
 Evidence of indispensable, when 113-115 
 
 Proper office of 113 n. 
 
 When not admissible 113 m. 
 
 Presumption as to 114 
 
 Become laws, when and how 115 
 
 Why evidence of is admitted 115 
 
 Of trade, and custom of merchants, distinction between 116 
 
 Distinction between general and particular 117 
 
 Mercantile, must be proved how 117 n. 
 
 Of trade, how proved 117, also note 119,125 
 
 One witness sufficient to establish, when 119 n. 
 
 What notoriety is essential 117 n.-119 to. 
 
 May be established by witness who derives all his knowledge 
 
 from manner his own business is conducted, when 120 
 
362 INDEX. 
 
 USAGE — Continued. page 
 
 Of different establishments .' ; 120 n. 
 
 Isolated instances of, not enough 120 n. 
 
 If witness cannot recall an instance where the usage was applied, 
 
 testimony of is insufficient 120-122 
 
 Single instance not generally enough 120 n. 
 
 As to time of credit 118 m. 
 
 What evidence is sufficient to charge person with 118 n. 
 
 Evidence required as to sense of words 118 n. 
 
 Opinions of witnesses not sufficient to establish 119 
 
 Instances must be proved 119 
 
 Witness may state his method of conducting certain business, to 
 
 establish 121 n. 
 
 Of servants, does not bind master when 121 n. 
 
 As to regulation of sales on commission, valid 122 n. 
 
 May be proved by parol however it originates 122 n. 
 
 As to sale of tobacco by sample, importing warranty, is valid.... 122 n. 
 
 Rule when evidence is conflicting 123 n. 
 
 When method of doing certain things on former occasions, is 
 
 not admissible 122 n. 
 
 Of other corporations or persons, not evidence to show that 
 
 certain services should be paid for 122 n. 
 
 Of individual, as to certain matters, evidence when as tending to 
 
 show whether certain things were done or not 121 n. 
 
 Rule as to reasonableness of 121 n. 
 
 Of railroad as to storing freight, when not binding 121 n. 
 
 Previous dealing of parties, evidence as to special usage 121 n. 
 
 To leave slabs at "saw mills" does not establish right in the 
 
 mill as such, to the slabs 121 n. 
 
 That goods sold on condition and delivered before payment, still 
 
 belongs to vendor, valid 122 n. 
 
 Of an individual as to method of doing contracts 123 n. 
 
 Of commission merchants as to sales to insolvent persons 123 n. 
 
 Course of trade may be shown as 124 n. 
 
 Force of 125 
 
 Elements to be attached to 125 
 
 Growing 125 
 
 Prevalent 125 
 
 Of carriers not to change freight unless receipt is given 124 n. 
 
 Principle of admission of. 127 
 
 Knowledge of, presumed 127, 126 n. 
 
 May enter into contract without being inserted 126 n. 
 
 Private, part of contract when 126 n. 
 
 Of merchants to charge interest 126 n. 
 
 General rules as to admission of, to add incidents to contracts.... 127 n. 
 
 Instances 127 n. 
 
 Of merchants, admissible when 128 n. 
 
 Of particular markets, binding when 129 n. 
 
INDEX. 363 
 
 USAGE — Continued. Paoj, 
 
 Of Lloyd's coffee house not admissible, when 129 n. 
 
 To pay an agent 129 n. 
 
 For an agent to sell in his own name 129 n. 
 
 As to holidays of servants 130 »i. 
 
 As to meaning of "years " in theatrical contract 130 n. 
 
 Sporting 180 n. 
 
 As to preparation of, and payment for lease 130 n. 
 
 As to meaning of word, when statute has fixed it 131 n. 
 
 Presumption that parties contracted in view of, may be rebutted 133 
 
 Local, not binding, when IZZ also notes. 
 
 Not admissible to affect special contract 138 n. 
 
 To return note given for property that proves worthless not bind- 
 ing unless 137 n. 
 
 Of banks to discount more than legal rate of interest, void 138 n. 
 
 To explain "in regular turns of loading" 138 n. 
 
 As to private right of way 138 n. 
 
 As to notice in certain cases 139 n. 
 
 Making negotiable instruments transferable without endorse- 
 ment, is void 140 
 
 That title does not pass by delivery of goods sold when no lien is 
 
 reserved, bad 140 
 
 To compel persons to receipt for goods before they have oppor- 
 
 , tunity to ascertain if all is delivered 141 
 
 Allowing master of stranded vessel to sell cargo without neces- 
 sity, bad 143 
 
 Exempting carriers from liability for negligence, bad 143 
 
 Authorizing actions upon contracts void under statute of frauds, 
 
 bad 144 
 
 Or barred by statute of limitations, bad 144 
 
 Depriving person of rights given by the law 144 
 
 Authorizing person to take another's property without compen- 
 sation 144 
 
 Exempting person from liability when he is made liable by stat- 
 ute, void 144 
 
 Authorizing individual to appropriate exclusively rights belong- 
 ing to the pubHc ■ 144 
 
 Justifying a trespass, bad 144 
 
 That permits an intermediate carrier to deduct deficiency in 
 
 cargo, from back freight earned 145 
 
 That permits an agent to warrant goods without authority 145 
 
 All the incidents of, must be reasonable 139, 140 
 
 Void, what are 140-146 
 
 Necessity for 297 
 
 Cannot contract a statute 297 
 
 Bad, instances of. 298 
 
 That conflict with common law 298 
 
 Of banks, instances of valid 298 
 
364 INDEX. 
 
 USAGE — Continued. Paoe 
 
 Evidence to establish, requisite of. 146 
 
 How proved 146-152 
 
 Effect of, on written contracts 155, 156 
 
 Rule of law in relation to.. 155 
 
 Permitting agent to sell property purchased for his principal 
 
 and return other of same kind and quality, bad 155 n. 
 
 Allowed to add to contracts, when 156 
 
 What must be shown to charge party with 156 n. 
 
 As to stowage of goods, admissible, when 157 n. 
 
 As to liability of a master of a vessel in certain cases 157 n. 
 
 Question as to whether it controls in contract depends upon 
 
 intention 158 
 
 Essential elements of 158 
 
 Questions for the jury 158 
 
 Private, binding when 158-159 n. 
 
 Distinction between, and custom 159 
 
 As to test of soda ash or kurtz : 162 n. 
 
 Conflicting with terms of insurance policy 162 n. 
 
 Not admissible to explain meaning of terms, when 163 n. 
 
 Admissible to ascertain what contract has left undetermined 163 n. 
 
 Legal efifect of contract is sometimes varied by 164 
 
 Principle upon which admission of, rests 166 
 
 When admitted to interpret contracts 166-171 
 
 As to meaning of " one foot high,'' in contract for sale of trees 
 
 "not less than." , 167 n. 
 
 Ripen into customs, how 160 
 
 To change character of instrument admissible, when 167 n. 
 
 To give purchaser actual tare when goods are fraudulently packed, 168 n. 
 
 As to charging commissions 168 n. 
 
 In reference to bill of lading, in which goods are to be carried 
 
 from one port to another 168 n. 
 
 Foundation for presumptions as to partner's interest in firm 
 
 property 172 ti. 
 
 Also, that notes and bills of exchange are given for good con- 
 sideration 172 n. 
 
 To show that word " cargo " does not include live stock 173 n. 
 
 That it is usual for commission merchants to effect insurance on 
 
 goods consigned to them 173 n. 
 
 Authorizing captain of steamboat to procure insurance on boat.. 173 n. 
 Admissible to determine when contract is to be complete, when.. 176 
 Admissible as to mode of hiring and paying crews of whaling 
 
 vessel 176 
 
 To show that in certain kinds of instruments any written instru- 
 ment is regarded as a bond 177 
 
 As to measurement of logs 177 
 
 Defining and explanatory 171 
 
 Explaining meaning of words 171-177 
 
INDEX. 365 
 
 USAGE— Continued. p^g^ 
 As to intention of parties, essential to carry out intention of par- 
 ties .: 170 n., 174-177 
 
 Illegal, cannot prevail : 180 n. 
 
 Void, instances of 180 n., 181 n. 
 
 To explain words "on the steamer" 182 
 
 "British gold ". 183 
 
 To explain " a good delivery,'' "deliver" 183 
 
 Test for determining whether is reasonable 185 
 
 How must be proved 186 n. 
 
 Of commission merchant to sell on credit when not admissible... 186 n. 
 
 In tobacco trade to treat all sales as by sample 187 
 
 As to similar usage as to cotton 187 
 
 As to meaning of "room " 187 
 
 Usage of depositors in banks, binding when 188 
 
 As to delivery of freight by railroads at minor stations 188 
 
 As to payment of commissions to insurance agents 188 
 
 Of whalers as to property in whale 188 
 
 In "herring " trade, admissible when 189 
 
 Receipts explainable by 190 
 
 Words " £2 10s. per cwt." explainable by 190 
 
 " Pitch pine timber'' 190 
 
 Admissible to explain " sail from St, Domingo in the month of 
 
 October" 191 
 
 Lien may be abrogated by 191 
 
 Not admissible to authorize master of vessel to sell cargo with- 
 out authority 191 n. 
 
 Must be very strong to vary meaning of plain words 191 
 
 To explain meaning of terms in bill of lading 192 
 
 Sporting 193 
 
 As to instructions to carriers 193 
 
 As to particular average 193 
 
 As to preparation of conveyances 193 
 
 Effect of on notes and bills 193 
 
 As to time of selling certain articles 207 n. 
 
 To establish authority of agent '. 208 n. 
 
 To establish price of services, admissible when 208 n. 
 
 To corroborate witnesses 208 n. 
 
 To establish negligence, when admissible 208 n., 209 n. 
 
 Actual knowledge of general, need not be shown 209 
 
 Rule as to 210 
 
 Admitted to explain what class of contracts 210 ra. 
 
 As to stowage of goods on shipboard 211 n. 
 
 As to time of delivery under bill of lading 211 n. 
 
 As to sale of glass in boxes 211 n. 
 
 As to that, has grownup under the law 212 
 
 As to payment in coin, for deposits of coin 212 
 
366 INDEX. 
 
 USAGE — Continued. paob 
 
 Instances where rights which have been acquired under a statute, 
 
 will, after statute is repealed, be upheld as usages 213 n. 
 
 As to taking possession of vacantland 213 n. 
 
 When of other persons, admissible on question of negli- 
 gence 213TO.-215 n. 
 
 Instances illustrating 213 n.., 214 ra. 
 
 Not admissible to extend jail limits 214 
 
 Of public officers, effect of. 214 
 
 Depriving person of property without compensation 215 
 
 As to payment of taxes by different tenants 215 
 
 Not admissible to change warranty in insurance policy 215 
 
 Of mechanics 216-219 
 
 As to corporations 218 
 
 Explaining contracts, oases illustrating 219-221 
 
 Eflect, when referred to in contract 223-226 
 
 Parol evidencetand, distinction between 227 
 
 Rules as to 227 
 
 Not admissible to show authority in broker to receive pay for 
 
 grain sold by him 228 
 
 Not admissible to show that broker signing note as principal is 
 
 not in fact so 229 
 
 Olassiiication of. 230 
 
 Adding incidents to contracts by 231, 232 
 
 Of corporations, effect of, as to acts by, not conformable to 
 
 charter 231 
 
 As to time of payment in certain cases 232 
 
 Warrant modified by 233 
 
 Created by, when may be 234-242 
 
 In relation to charter party 244 
 
 Effect of, on liability of carrier , 244-248 
 
 Hearing of, on questions of negligence 245 n., 247 n. 
 
 Eequisites of 247 n. 
 
 Of navigators, how may be proved 246 n. 
 
 Of the road, not a defence against a violent collision 246 n. 
 
 Distinction as to effect of general and partial 247 
 
 Distinction between varying contract and adding incident to 248 
 
 Effect of local, upoij insurance contracts.. 248 n. 
 
 Adding incident to contract 249 
 
 Local, may be rebutted 257 n. 
 
 As to carrying deck loads 252 n. 
 
 Weight of. 253 
 
 As,to sales by sample 254 
 
 In timber trade 254 
 
 As to measurement 255 
 
 Of carriers by water as to stowage of freights 260 n. 
 
 As to delivery of. , 261 n. 
 
 As to exceptive words in bill of lading 261 n. 
 
INDEX. 367 
 
 VSAGIi— Continued. p^oj. 
 
 As to perquisites of master of vessel 261 n. 
 
 Lien may be created by 261 n. 
 
 Variance of usage and contract 262 
 
 Evidence of, rejected when 263 
 
 Not admissible to change meaning of word, except 264-267 
 
 Instances illustrating 264-267 
 
 Words of general import 267 
 
 Terms added to contract by, must be incidental... 267 
 
 Special must be proved, how 267 
 
 When excluded by contract 267 
 
 When adpiissible to control contracts for services 267 
 
 As to relation of principal and agent 270 
 
 General rule as to admissibility of 274 
 
 Tests for determining 274-276 
 
 Private 277-282 and note. 
 
 Nature of, essential to be considered 286 
 
 Of trade, confidence in 286 
 
 Efiect of an insurance contract 288 
 
 See WoEDS. 
 
 USAGE OF TRADE. 
 
 Meaning of. 128 n. 
 
 USUAL. 
 
 Course of a certain business, likely to be adopted by those deal- 
 ing therein 109 
 
 V. 
 VALIDITY. 
 
 Of customs 7 
 
 VAN NESS V. PACKARD. 
 
 Usage may determine right of tenant to take away fixtures......... 48 n. 
 
 VESSEL. 
 
 Usage as to stopping at certain ports 26 n. 
 
 VOID. 
 
 Custom to take profit a prendre, is note (i), 16 
 
 Illustration note (i), 16 
 
 To depasture lands note (i), 16, 17 n. 
 
 To take fish 17 »i. 
 
 To take sand to mix with lime 17 n. 
 
 To pile wood on another's land 17 n. 
 
 To take sea-weed from another's land 17 n. 
 
 To maintain bay-window 17 n. 
 
 Customs are, when 24r-27 note (w) 25 
 
 Instances note [w] 25 
 
 Custom contrary to statute is 27 n. 
 
368 INDEX. 
 
 VOID USAGES. P^aB 
 
 What are 140-146 
 
 Illustrations 140-146 
 
 Instances of. 180 m.-lSl n. 
 
 VOYAGE. 
 
 Usage admissible to authorize, what otherwise would be devia- 
 tion from 56 n. 
 
 W. 
 
 WARRANTY. 
 
 General, in marine policies controlled by usage when 51 
 
 Modified by usage when 233 
 
 Created by usage, when may be 234-242 
 
 Sale of tobacco by samples, imports when 122 n. 
 
 See Gunther v. Atwell 123 n. 
 
 "WEEKS." 
 
 Explained by usage 173 
 
 "WEEKLY ACCOUNTS." 
 
 Usage admissible to explain meaning of, when 195 
 
 See Myers v. Sari 196 
 
 WEIGHT. 
 
 Usage admissible to determine when 143 
 
 "WET OIL." 
 
 Usage to explain 193 
 
 WHALERS. 
 
 Usage of, as to property in whale pursued by different crews 188 
 
 WHALING VESSELS. 
 
 Usage admissible as to mode of hiring crew ; 176 
 
 " WHALING VOYAGE." 
 
 Usage admissible to explain meaning of, when 55 n. 
 
 WHARFINGERS. 
 
 Usage for, to act as agents for accepting goods for consignees 
 
 arriving at wharves, is not good 180 n. 
 
 WHEAT. 
 
 Usage admissible to show that certain kinds of, contain mixture 
 of other grain 221 
 
 WIGGLESWORTH v. DALLISON. 
 
 Rule in, as to rights of tenants by usage 45 n., 60 
 
 Adding incidents to tenancy 45 n., 60 
 
 As to right of tenant to away-going crops 60 
 
 WITNESS. 
 
 One, may be sufficient to establish usage 119 n. 
 
 Opinions of, not sufficient, must testify to instances 119-123 
 
 See Mills v. Hallock 119 
 
 May testify as to usage of his own business, when sufficient 120 
 
INDEX. 369 
 
 WITNESS- CoiUinHed. ^^^^ 
 
 See Hamilton v. Nickerson 120 n. 
 
 If cannot testify to instances in which usage has been acted on, 
 
 evidence of, is insufficient 120-123, 124 ra. 
 
 See Chenery t). Goodrich 123 
 
 Price ■U.White 124 u. 
 
 WORDS. 
 
 Meaning of usage admissible to explain, when 54-60, and notes. 
 
 "In turn to deliver" 54 to. 
 
 " Roots," in policy of insurance 54 n. 
 
 " Sea letter " 55 „. 
 
 "Cargo" 55 TO. 
 
 "Proof and adjustment," in insurance policy 55 n. 
 
 " Without convoy," in warranty of marine policy 55 n. 
 
 "Building" 55 to. 
 
 Not admissible when statute has fixed meaning of 55 n. 
 
 "Thousands" 54 
 
 "Level," in mining contracts 58 
 
 Take precedence over figures in construction of instruments 60 
 
 Court must determine sense of, when 80 
 
 How, must generally be understood 80 
 
 When parol evidence admissible to show 80-85 notes. 
 
 "Zinc ore " 90 n. 
 
 "Grain" 90 n. 
 
 "Team" 91 to. 
 
 "All faults" 91 TO. 
 
 "Weeks" 91 n. 
 
 "Months" ! 91 re. 
 
 "Square yard" 92 m. 
 
 Vary in meaning according to locality or trade in which they are 
 
 used 92 
 
 "Barrels" Ill 
 
 "Horn chains" Ill 
 
 " Right and goodwill of supplying, custom" Ill 
 
 Usage admissible to explain " good barley," " fine barley " 128 n. 
 
 That " London " is employed in peculiar sense 129 n. 
 
 Rule as to admission of usage to explain when statute has fixed 
 
 meaning of. 131 n. 
 
 "Average taint" 132 n. 
 
 Usage not admissible to explain when meaning is fixed by stat- 
 ute 320 
 
 Instances 320 
 
 Inhabitant.. 172 
 
 Corn 172 
 
 Wet oil 193 
 
 Calcutta linseed 193 
 
 Weekly accounts 195 
 
 23 
 
370 INDEX. 
 
 WORDS—Continued. pace 
 
 Months 173 
 
 Salt 173 
 
 Pig iron 173 
 
 Freight 173 
 
 Days 173 
 
 Pur 173 
 
 Bale 192 
 
 About 193 
 
 Martinmas 74 
 
 Michaelmas 74 
 
 Ladyday 74 
 
 What is meant by " freight," in contract to carry 176 
 
 "Farm," or "homestead farm," usage may explain 176 
 
 Loaf sugar 177 
 
 Rule as to admissibility of usage to explain 184 
 
 WOKMERSLEY v. DALLY. 
 
 As to usage of particular estate not being operative 45 n. 
 
 WRITTEN AGREEMENTS. 
 
 See Agreements ; also Contracts. 
 
 " WROUGHT AND UNWROUGHT." 
 
 Explainable by usage, when 64 n. 
 
 Y. 
 
 " YEARS." 
 
 Usage may show in what sense was used in contract 130 n. 
 
 See illustrating, Grants. Maddox 130 n. 
 
 Z. 
 
 " ZINC ORE." 
 
 Explained by usage to include Franklinite 90 n. 
 
 See New Jersey Zinc Company v. Boston Franklinite Company... 90 n.