fact questions of law of two kinds may arise. One, whether the evidence is admissible, which is to be settled by the common principles of the law of evidence. The other, whether the facts stated are legally sufficient to prove a custom. If one man testified that he had done a certain thing once, and had heard that his neighbor had done it once, this evidence would not be given to the jury for them to draw from it the inference of custom if they saw fit, because it would be legally insufficient. But if many men testified to a uniform usage within their knowledge, and were uncontradicted, the court would say whether this usage was sufficient in quantity and quality to establish a custom, and if they deemed it to be so, would instruct the jury, that, if they believed the witnesses, the custom was proved. The cases on this subject are numerous. definite rule as to the proof of custom can be drawn from them other than that derivable from the reason on which the legal operation of custom rests; namely, that the parties must be supposed to have contracted with reference to it.

*

* 544

But no

As a general rule, the knowledge of a custom must be brought home to a party who is to be affected by it. But if it be shown that the custom is ancient, very general and well known, it will often be a presumption of law that the party had knowledge of it; (q) although, if the custom appeared to be more recent and less generally known, it might be necessary to establish by independent proof the knowledge of this custom by the party. (r) And one of the most common grounds for inferring knowledge in

66

(2) Where a custom is found to be general and notorious, and to have the other requisites of a valid custom, it is a conclusion of law that the parties must have contracted with reference to it, and their knowledge is conclusively presumed. In Clayton v. Gregson, 5 A. & E. 302, an arbitrator found, that according to the custom and understanding of miners throughout a certain district, the words "level," "deeper than," and 'below," in a lease, had certain meanings, which were in favor of one of the parties to the suit. Some of the parties to the lease did not live within the district. Held, that the existence of the custom stated, within such district, did not raise a conclusion of law that the covenanting parties used the terms according to such custom, but was only evidence from which a jury might draw that conclusion. Littledale, J., said: "If the arbitrator had followed the words of the order, and found that the word 'level' (which is

capable of many different meanings), meant according to the custom and understanding of miners' so and so, judg ment might have been given for the defendant; there would have been a result in law in his favor. But the finding is limited to a particular district; which is as much as to say that the word which has a particular signification in this district may mean differently in others; and if that be so, it cannot follow as an inference of law, that in the present contract it was used in the sense pointed out. It ought therefore to be shown, as a matter of fact, that the parties so used it." See also Stevens v. Reeves, 9 Pick. 198; Hinton v. Locke, 5 Hill, 439; Deshler v. Beers, 32 Ill. 68. But see Winsor v. Dillaway, 4 Met. 221.

(r) Clayton v. Gregson, 5 A. & E. 302; Scott v. Irving, 1 B. & Ad. 605; Stevens v. Reeves, 9 Pick. 198; Stewart v. Aberdein, 4 M. & W. 211; Goodnow v. Parsons, 36 Vt. 46.

the parties, is the fact of their previous similar dealings with each other. (s) The custom might be so perfectly ascertained *545 and universal, that the party's actual ignorance could not

be given in proof, nor assist him in resisting a custom. If one sold goods, and the buyer, being sued for the price, defended on the ground of a custom of three months' credit, the jury might be instructed that the defence was not made out, unless they could not only infer from the evidence the existence of the custom, but a knowledge of it by the plaintiff. But if the buyer had given a negotiable note at three months, no ignorance of the seller would enable him to demand payment without grace, even where the days of grace were not given by statute. In such a case, the reason of the law of custom- that the parties contracted with reference to seems to be lost sight of. But in fact the custom in such a case has the force of law; (t) an ignorance of which cannot be supposed, and, if it be proved, it neither excuses any one nor enlarges his rights.

it

No custom can be proved, or permitted to influence the construction of a contract, or vary the rights of parties, if the custom itself be illegal. For this would be to permit parties to break the law because others had broken it; and then to found their rights upon their own wrong-doing. (u)

Neither would courts sanction a custom, by permitting its operation upon the rights of parties, which was in itself wholly unreasonable. (v) In relation to a law properly enacted this

(s) As that one of the parties was accustomed to effect insurance at a certain place or with a certain company. Gabay v. Lloyd, 3 B. & C. 793; Bartlett v. Pentland, 10 B. & C. 760; Palmer v. Blackburn, 1 Bing. 61. Or that parties were accustomed to transact business at a certain bank. Bridgeport Bank v. Dyer, 19 Conn. 136. Or that the parties reside at the place where the usage exists. Bartlett. Pentland, 10 B. & C. 760; Clayton v. Gregson, 5 A. & E. 303; Stevens v. Reeves, 9 Pick. 198. Evidence may be given of former transactions between the same parties for the purpose of explaining the meaning of the terms used in a written contract. Bourne v. Gatliff, 11 Clark & F. 45, 70. But see Ford v. Yates, 2 Man. & G. 549, where evidence was rejected, that by the usual course of dealing between the parties, hops were sold on a credit of six months. The written contract was silent upon the subject. Previous dealings of parties are admissible, to give a more extended lien than that given by the common law. Rush

forth v. Hadfield, 7 East, 224. See Loring v. Gurney, 5 Pick. 15.

a

(t) It may, however, be superseded by custom allowing four days' grace. Mills v. Bank of United States, 11 Wheat. 431; Cookenderfer v. Preston, 4 How. 317.

(u) See 1 Duer on Ins. 272. Also Wallace v. Fouche, 27 Miss. 266.

(v) A usage among the owners of vessels at particular ports, to pay bills drawn by masters for supplies furnished to their vessels in foreign ports, cannot bind them as acceptors of such bills. "A usage, to be legal, must be reasonable as well as convenient; and that usage cannot be reasonable which puts at hazard the property of the owners at the pleasure of the master, by making them responsible as acceptors on bills drawn by him, and which have been negotiated on the assumption that the funds were needed for supplies or repairs; and no evil can flow from rejecting such a usage." Per Hubbard, J., in Bowen v. Stoddard, 10 Met. 375. So a usage among plasterers, to

inquiry cannot be made in a country where the judicial * 546 and the legislative powers are properly separated. But in reference to custom, which is a quasi law, and has often the effect of law, but has not its obligatory power over the court, the character of the custom will be considered; and if it be altogether foolish, or mischievous, the court will not regard it; and if a contract exist which only such a custom can give effect to, the contract itself will be declared void.

Lastly, it must be remembered that no custom, however universal, or old, or known, unless it has actually passed into law, has any force over parties against their will. Hence, in the interpretation of contracts, it is an established rule, that no custom can be admitted which the parties have seen fit expressly to exclude. (w) Thus, to refer again to the custom of allowing grace on bills and notes on time, there is no doubt that the parties may agree to waive this; and even the statutes which have made this custom law permit this waiver. And not only is a custom inadmissible which the parties have expressly excluded, but it is equally so if the parties have excluded it by a necessary implication; as by providing that the thing which the custom affects shall be done in a different way. For a custom can no more be set up against the clear intention of the parties than against their express agreement; and no usage can be incorporated into a contract, which is inconsistent with the terms of the contract. (x)

charge half the size of the windows at the price agreed on for work and materials, is unreasonable and void. Jordan v. Meredith, 3 Yeates, 318. See also Thomas v. Graves, 1 Const. R. 308; Spear v. Newell, cited in Burton v. Blin, 23 Vt. 159; Bryant v. Commonwealth Ins. Co., 6 Pick. 131. For instances in which usages have been held reasonable, see Clark v. Baker, 11 Met. 186; Thomas v. O'Hara, 1 Const. R. 303; Williams v. Gilman, 3 Greenl. 276; Bridgeport Bank v. Dyer, 19 Conn. 136; Connor v. Robinson, 2 Hill (S. C.), 354; Cuthbert v. Cumming, 11 Exch. 405, 30 Eng. L. & Eq. 604. Whether a usage is reasonable would seem to be a question of law. 1 Duer on Ins. 269. See remarks of Tindal, C. J., in Bottomley v. Forbes, 5 Bing. N. C. 127. And see Bowen v. Stoddard, 10 Met. 375. The question of the reasonableness of a usage was left to the jury by Lord Eldon, in Ougier v. Jennings, 1 Camp. 505, note (a). (c) Knox v. The Ninetta, Crabbe, 534. See infra, n. (x).

(x) In the case of the schooner Reeside, 2 Sumner, 567, it was attempted to vary

the common bill of lading, by which goods
were to be delivered in good order and
condition, the danger of the seas only ex-
cepted, by establishing a custom, that the
owners of packet vessels between New
York and Boston should be liable only
for damage to goods occasioned by their
own neglect. But, per Story, J., "The true
and appropriate office of a usage or custom
is, to interpret the otherwise indetermin-
ate intentions of parties, and to ascertain
the nature and extent of their contracts,
arising not from express stipulations, but
from mere implications and presumptions,
and acts of a doubtful or equivocal charac-
ter. It may also be admitted to ascertain
the true meaning of a particular word, or
of 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 contradict them.
An express

Where the terms of a contract are plain, usage, even under that very contract, cannot be permitted to affect materially the construction to be placed upon it; but when it is ambiguous, usage for a long time may influence the judgment of the court by showing how it was understood by the original parties to it. (y)1

SECTION X.

OF THE ADMISSIBILITY OF EXTRINSIC EVIDENCE IN THE INTERPRETATION OF WRITTEN CONTRACTS.

It is very common for parties to offer evidence external to the contract, in aid of the interpretation of its language. The * 548 general rule is that such evidence cannot be admitted to contradict or vary the terms of a valid written contract; or, as the rule is expressed by writers on the Scotch law," writing

1 Local usage cannot change a warehouse receipt from a bailment to a sale. Ledyard v. Hibbard, 48 Mich. 421. — K.

cannot be cut down or taken away by the testimony of witnesses." (2) There are many reasons for this rule. One is, the general preference of the law for written evidence over unwritten; or, in other words, for the more definite and certain evidence over that which is less so; a preference which not only makes written evidence better than unwritten, but classifies that which is written. For if a negotiation be conducted in writing, and even if there be a distinct proposition in a letter, and a distinct assent, making a contract; and then the parties reduce this contract to writing, and both execute the instrument, this instrument controls the letters, and they are not permitted to vary the force and effect of the instrument, although they may sometimes be of use in explaining its terms. Another is, the same desire to prevent fraud which gave rise to the statute of frauds; for as that statute requires that certain contracts shall be in writing, so this rule refuses to permit contracts which are in writing to be controlled by merely oral evidence. But the principal cause alleged in the books and cases is, that when parties, after whatever conversation or preparation, at last reduce their agreement to writing, this may be looked upon as the final consummation of their negotiation, and the exact expression of their purpose. And all of their earlier agreement, though apparently made while it all lay in conversation, which is not now incorporated into their written contract, may be considered as intentionally rejected. (a) The parties write the contract when they are ready to do so, for the very purpose of * 549 including all that they have finally agreed upon, and excluding everything else, and make this certain and permanent. And if every written contract were held subject to enlargement, or other alteration, according to the testimony which might be offered on one side or the other as to previous intention, or collateral facts, it would obviously be of no use to reduce a contract to writing, or to attempt to give it certainty and fixedness in any way. (b)

() Tait on Ev. 326. See further Herring v. Boston Iron Co., 1 Gray, 134; Renard v. Sampson, 2 Kern. 561.

(a) Preston v. Merceau, 2 W. Bl. 1249; Harnor v. Groves, 15 C. B. 667, 29 Eng. L. & Eq. 220; Carter v. Hamilton, 11 Barb. 147; Troy Iron and Nail Factory v. Corning, 1 Blatchf. C. C. 467; Meres v. Ansel, 3 Wilson, 275; Hakes v. Hotchkiss, 23 Vt. 231; Vermont Central R. R. Co. v. Estate of Hills, id. 681. "Where the whole matter passes in parol, all that passes may sometimes be taken together as forming parcel of the contract, though

*

not always, because matter talked of at the commencement of a bargain may be excluded by the language used at its termination. But if the contract be in the end reduced into writing, nothing which is not found in the writing can be considered as a part of the contract." Per Abbott, C. J., in Kain v. Old, 2 B. & C. 634. See also Vandervort v. Smith, 2 Caines, 155; Mumford v. M'Pherson, 1 Johns. 414; Pickering v. Dowson, 4 Taunt. 786.

(b) "It would be inconvenient that matters in writing, made by advice and