goods were sold on execution, and left on the land of the judgment debtor, that the purchaser acquired no absolute right to go on the land of the seller for the purpose of taking the goods. (y) But it has also been held, that where goods of the plaintiff were sold on distress for rent, which were on plaintiff's land, and one of the conditions to which he was a party permitted defendant to enter from time to time and take the goods away, this was a license by the plaintiff, and was irrevocable, because coupled with an interest. (2)1 It may perhaps be inferred from the cases and dicta on this subject, that as real rights go with a grant of real property where they are essential to its proper use, so such personal rights, or even personal chattels, would go with the transfer of personal property, as were absolutely necessary for the use and enjoyment of the things sold; for it might well be presumed to have been the intention and understanding of the parties that they should pass together. (a) And we should be even inclined to say, that if one sold goods on his land, especially under seal, and there was nothing in the contract or the circumstances to show that the buyer was to come into possession otherwise than by entering upon the land and taking them, it would be presumed that this was intended, and that the sale operated as a license to do this in a reasonable time and a reasonable way, which the seller could not revoke. (b) 2 Where anything is to be done, as goods to be delivered, or the

out reservation, the law will not imply in favor of the vendor a right of way of necessity over or through such land, inconsistent with the object of the purchase. Seeley v. Bishop, 19 Conn. 128.

(y) Williams v. Morris, 8 M. & W. 488.

(2) Wood v. Manley, 11 A. & E. 34; Poor v. Oakman, 104 Mass. 309.

(a) If one grant trees growing in his wood, the grantee may enter and cut down the trees and carry them away. Reniger v. Fogossa, Plowd. 16; Liford's case, 11 Rep. 52; Shep. Touch. 89. By a grant of the fish in a pond, a right of coming upon the banks and fishing for them is granted. Reniger v. Fogossa, Plowd. 16, Shep. Touch. 89; Lord Darcy v. Askwith, Hob. 234. A rector may enter

*

535

into a close to carry away the tithes over the usual way, as incident to his right to the tithes. Cobb v. Selby, 5 B. & P. 466.

(b) Perhaps, however, it would be found difficult to support this proposition in its full extent, unless the grant was made by deed. It would seem that such a license, in order to be irrevocable, must amount to a grant of an interest in land, which can only be by deed. "It certainly strikes one as a strong proposition, to say that such a license can be irrevocable, unless it amount to an interest in land, which must therefore be conveyed by deed." Per Parke, B., in Williams v. Morris, 8 M. & W. 488. See also Gale and Whatley on Easements, p. 18 et seq.

1 Such a license must be given by one having authority to give it, Nelson v. Garey, 114 Mass. 418; and entry thereunder must be peaceable, Churchill v. Hulbert, 110 Mass. 42. K.

2 One who is allowed to put his goods on the land of another under a license revocable at the pleasure of the owner is entitled to a notice of revocation, and a reasonable time afterwards to remove the goods. Mellor v. Watkins, L. R. 9 Q. B. 400; Cornish v. Stubbs, L. R. 5 C. P. 334. — K.

like, and no time is specified in the contract, it is then a presumption of law that the parties intended and agreed that the thing should be done in a reasonable time. (c) But what is a reasonable time is a question of law for the court. (d) (x) They will consider all the facts and circumstances of the case in determining this, and if any facts bearing upon this point are in question, it will be the province of the jury to settle those facts, although the influence of the facts when they are ascertained, upon the question of reasonableness, remains to be determined by the court. In general, it may be said, that questions of reasonableness, other than that of time, are questions of fact for the jury.

SECTION IX.

OF THE EFFECT OF CUSTOM OR USAGE.

A custom which may be regarded as appropriate to the contract and comprehended by it, has often very great influence in the construction of its language. (e) The general reason of

(c) Crocker v. The Franklin H. & F. Man. Co., 3 Summer, 530; Ellis v. Thompson, 3 M. & W. 445; Greaves v. Ashlin, 3 Camp. 426; Sawyer v. Hammatt, 15 Me. 40; Howe v. Huntington, id. 350; Atkinson v. Brown, 20 Me. 67. And see Atwood v. Emery, cited ante, p. * 498, note (o).

(d) Attwood v. Clark, 2 Greenl. 249; Kingsley v. Wallace, 14 Me. 57; Murry v. Smith, 1 Hawks, 41. For certain exceptions to this rule, see Howe v. Huntington, 15 Me. 350. See also Hill v. Hobart, 16 Me. 164.

(e) That evidence may be given of a custom or usage of trade to aid in the construction of a contract, either by fixing the meaning of words where doubt ful, or by giving them a meaning wholly distinct from their ordinary and popular sense, is a well established doctrine. Thus, where it was represented to underwriters, on a policy of insurance, that the ship insured was to sail "in the month of October," evidence was admitted to show that the expression "in the month of October," was well understood amongst men used to commercial affairs to signify some time between the 25th of that month and the 1st or 2d of the succeeding month.

(x)" At any time," in a contract, may be construed from the context to mean within a reasonable time. Aultman, Miller

Chaurand v. Angerstein, Peake, N. P. 43.
So, also, custom or usage may be admitted
to show that a "whaling voyage" includes
the taking of sea-elephants, on the beaches
of islands and coasts, as well as whales.
Child v. Sun Mutual Ins. Co., 3 Sandf.
26. So also as to the meaning of
66 cotton
in bales." Taylor v. Briggs, 2 C. & P.
525, and Outwater v. Nelson, 20 Barb. 29,
as to the phrase "on freight." Evidence
may also be admitted, that the word
"days" in a bill of lading means working
days, and not running days. Cochran v.
Retberg, 3 Esp. 121. Evidence may also
be given of the mercantile meaning of the
terms " good" and "fine," as applied to
barley. Hutchison v. Bowker, 5 M. & W.
535; Whitmore v. Coats, 14 Mo. 9. So
also as to the meaning of the word "privi-
lege," in an agreement with the master of
a ship. Birch v. Depeyster, 4 Camp. 385.
In Evans v. Pratt, 3 Man. & G. 759, evi-
dence was admitted to show that across
a country," in a memorandum respecting
a race, means that the riders are to go
over all obstructions, and are not at lib-
erty to use a gate. See Sleight v. Harts-
horne, 2 Johns. 531, as to the meaning of
"sea-letter." Astor v. Union Ins. Co., 7

66

& Co. v. Roemer Bros., 112 Iowa, 651, 84 N. W. 692.

* 536

this is obvious enough. If parties enter into a contract, by virtue whereof something is to be done by one or both, and this thing is often done in their neighbor- * 537 hood, or by persons of like occupation with themselves, and is always done in a certain way, it must be supposed that they intended it should be done in that way. The reason for this supposition is nearly the same as that for supposing that the common language which they use is to be taken in its common meaning. And the rule that the meaning and intent of the parties govern, wherever this is possible, comes in and operates. Hence, an established custom may add to a contract stipulations not contained in it; on the ground that the parties may be supposed to have had these stipulations in their minds as a part of their agreement, when they put upon paper or expressed in words the other part of it.(f)1(x)

Cowen, 202, as to the meaning of "furs." See also Haynes v. Holliday, 7 Bing. 587; Read v. Grandberry, 8 Ired. 109; Barton v. McKelway, 2 N. J. 174; Robertson v. Jackson, 2 C. B. 412; Moore v. Campbell, 10 Exch. 322, 26 Eng. L. & Eq. 522; Vail v. Rice, 1 Seld. 155. So in the case of a contract to sell "mess pork of Scott & Co.," evidence was admitted to show that this language in the market meant pork manufactured by Scott & Co. Powell v. Horton, 2 Bing. N. C. 668. Where a contract was worded thus: "Sold 18 pockets Kent hops, at 100s.," it was permitted to be shown that by the usage of the hop trade, a contract so worded was understood to mean 100s. per cwt. and not per pocket. Spicer v. Cooper, 1 Q. B. 424. See also Bowman v. Horsey, 2 Moody & R. 85. So evidence has been admitted to show that " rice" is not considered as corn within the memorandum of a policy of insurance. Scott v. Bourdillion, 5 B. & P. 213. See also Clayton v. Gregson, 5 A. & E. 302, as to the meaning of the word " "level" among miners. Also Cuthbert v. Cummings, 11 Exch. 405, 30 Eng. L. & Eq. 604, as to the phrase "full and complete cargo. And

see Grant v. Maddox, 15 M. & W. 737; Brown v. Byrne, 3 Ellis & B. 703, 26 Eng. L. & Eq. 247. So as to the meaning of "in regular turns of loading," Liedemann v. Schultz, 14 C. B. 38, 24 Eng. L. & Eq. 305. Owing to the loose and inaccurate

So custom may control and vary

manner in which policies of insurance are drawn, a class of cases has sprung up, almost peculiar to this instrument, in which evidence is admitted of usages between the underwriters and the assured, affixing to certain words and clauses a known and definite meaning. Thus, in Brough v. Whitmore, 4 T. R. 206, on evidence of the practice of merchants and underwriters, it was held, that provisions, sent out in a ship for the use of the crew, were protected by a policy on the ship and furniture. Lord Kenyon, in giving judgment, said: "I remember it was said many years ago, that if Lombard street had not given a construction to policies of insurance, a declaration on a policy would have been bad on general demurrer; but that the uniform practice of merchants and underwriters had rendered them intelligible." In Coit Commercial Ins. Co., 7 Johns. 385, evidence was received of a usage among underwriters and merchants restricting the term "roots" in the memorandum of a policy to such articles as were in their nature perishable, and excluding sarsaparilla. See also Allegre v. Maryland Ins. Co., 2 Gill & J. 136; s. c. 6 Harris & J. 408; Macy v. Whaling Ins. Co., 9 Met. 354; Eyre v. Marine Ins. Co., 5 Watts & S. 116; 1 Duer on Ins. 185; Humphrey v. Dale, 7 Ellis & B. 265; Cuthbert v. Cumming, 11 Exch. 405, 30 Eng. L. & Eq. 604. () "It has long been settled," says

1 On this ground in transactions in stocks through brokers who are members of the stock exchange, its rules and usages become part and parcel of such transac

(x) When the meaning of a written contract is clear, it cannot be contradicted

by evidence either of a custom or of the conduct of a party. Glynn v. Moran, 174

* 538 the meaning of words; (g) giving even to such words as

Parke, B., in Hutton v. Warren, 1 M. & W. 475, "that in commercial transactions, extrinsic evidence of custom and usage is admissible to annex incidents to written contracts in matters with respect to which

(g) Thus, in an action on a policy of insurance on a voyage "to any port in the Baltic," evidence was admitted to prove, that in mercantile contracts the Gulf of Finland is considered as within the Baltic. Uhde v. Walters, 3 Camp. 16. So,

they are silent. The same rule has also been applied to contracts in other transactions of life, in which known usages have been established and prevailed, and this has been done upon the principle of pre

also, that Mauritius is considered as an East India island, although treated by geographers as an African island. Robertson v. Money, Ryan & M. 75; Robertson v. Clarke, 1 Bing. 445.

tions. Bowring v. Shepherd, L. R. 6 Q. B. 309. In an action against fruit brokers, who contracted for a "principal," but did not name him, evidence of a custom in the London fruit trade, that if the brokers did not give the names of their principals in the contract, they were to be held personally liable, is admissible; and also evidence of a similar custom in the London Colonial market, being evidence in a similar trade in the same place, and as tending to corroborate the evidence as to the existence of such a custom in the fruit trade. Fleet v. Murton, L. R. 7 Q. B. 126; Hutchinson v. Tatham, L. R. 8 C. P. 482. Where a master claimed freight on the gross weight of cotton delivered, a custom that it should be collectible only on net weight was admissible, the charter-party containing no words of exclusion. McPherson v. Cox, 86 N. Y. 472. A custom among merchants to charge interest on capital invested in business is not admissible in favor of the defendant in an action by a salesman on an agreement that he should receive a certain portion of the net profits. Paine v. Howells, 90 N. Y. 660.-K.

Mass. 233, 54 N. E. 535; Menage v. Rosenthal, 175 Mass. 358, 56 N. E. 579. See Yorston v. Brown, 178 Mass. 103, 59 N. E. 654; Norwood v. Lathrop, 178 Mass. 208, 59 N. E. 650; Hallett v. Taylor, 177 Mass. 6, 58 N. E. 154; Potter v. Phoenix Ins. Co., 63 Fed. 382; Morton v. Clark, 181 Mass. 134, 65 N. E. 000. But under a sale of oats " 'by the bag," evidence is admissible of a usage that the sale was in fact a sale by the bushel. Eldridge v. McDermott, 178 Mass. 256, 59 N. E. 806.

Questions relating to the character or existence of a written instrument, or the circumstances under which it was made, are not necessarily inadmissible as affecting its contents. Alvord v. Cook, 174 Mass. 120, 54 N. E. 490; Boston Rubber Shoe Co. v. Gordon, 178 Mass. 520, 59 N. E. 1110; Drake v. Allen, 179 Mass. 197, 60 N. E. 477.

In general a contract binds those who sign it, though they do not know, and do not intend to assent to its terms. Chu Pawn v. Irwin, 82 Hun, 607. It may be shown by parol that an unconditional written contract was intended to become effective only upon a certain condition. Tug River Coal & Salt Co. v. Brigel, 86 Fed. 818. But when one condition is expressly made the consideration for the undertaking, other conditions cannot be

set up by parol as part of the consideration. Blair v. Buttolph, 72 Iowa, 31, 33 N. W. 349. It is not competent to show how such a word as "services" was understood by an individual, Violette v. Rice, 173 Mass. 82, 53 N. E. 144, or that he intended to sign only as a fiduciary. Equitable Marine Ins. Co. v. Adams, 173 Mass. 436, 53 N. E. 883. Nor can the contract be itself varied under the guise of showing what its consideration really was. Radigan . Johnson, 174 Mass. 68, 54 N. E. 35S.

as

But a description of a boundary of land

"about thirty-two feet to D's land," may be fixed by extrinsic evidence, as it suggests some monument, abuttal, or line there. O'Connell v. Cox, 179 Mass. 250, 60 N. E. 580. Admissions are evidence against the party making them, though they relate to the contents of a written paper or a corporate vote. Clarke v. Warwick Cycle Mfg. Co., 174 Mass. 434, 54 N. E. 887.

In general a new contract made at the same interview as the original, will not be recognized as changing it. Dixon v. Williamson, 173 Mass. 50, 52 N. E. 1067; Dean v. Washburn & Moen Mfg. Co., 177 Mass. 137, 58 N. E. 162. Nor can a party who accepts an offer testify to his understanding of the meaning of the contract as based thereon. Clarke v. Second Nat. Bank, 177 Mass. 257, 59 N. E. 121.

those of number a sense entirely different from that which they commonly bear, and which indeed by the rules of * 539