*

* 533 seen, executors, though not named in a contract, are liable, so far as they have assets, for the breach of a contract which was broken in the lifetime of their testator. And if the contract was not broken in his lifetime, they must not break it, but will be held to its performance, unless this presumption is overcome by the nature of the contract; as where the thing to be done required the personal skill of the testator himself. (t) So, too, if several persons stipulate for the performance of any act, without words of severalty, the presumption of law is here that they intended to bind themselves jointly. (u) But this presumption also might be rebutted by the nature of the work to be done, if it were certain that separate things were to be done by separate parties, who could not join in the work. (v)

It is also a legal presumption, that every grant carries with

it whatever is essential to the use and enjoyment of the * 534 grant. (w) *But this rule applies perhaps more strongly to grants of real estate than to transfers of personal property. Thus, if land be granted to another, a right of way to the land will go with the grant. (x) But it has been held, where 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

(t) See ante, vol. i. pp. * 127, * 131. (u) See ante, vol. i. p. 11, n. (a). (v) See the case of Slater v. Magraw, 12 Gill & J. 265, cited ante, vol. i. p. 11, n. (a); De Ridder v. Schermerhorn, 10 Barb. 638; Brewsters v. Silence, 4 Seld. 207. See also Erskine's Institute, b. 3, tit. 3, sec. 22.

(w) Liford's case, 11 Rep. 52; Co. Lit. 56 a; Pomfret v. Ricroft, 1 Wms. Saund. 323, n. (6). Where an act of parliament empowered a railway company to cross the line of another company, by means of a bridge, it was held, that the firstmentioned company had consequently the right of placing temporary scaffolding on the land belonging to the latter, if the so placing it were necessary for the purpose of constructing the bridge; for ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest. Clarence Railway Co. v. Great North of England Railway Co. 13 M. & W. 706. See also Hinchliffe v. Earl of

Kinnoul, 5 Bing. N. C. 1; Dand v. Kinscote, 6 M. &. W. 174; Broom's Legal Maxims, 362, 2d ed.

(x) Pomfret v. Ricroft, 1 Wms. Saund. 323, n. (6); Howton v. Frearson, 8 T. R. 50; Collins v. Prentice, 15 Conn. 39. It must be strictly a way of necessity, and not of mere convenience. Nichols v. Luce, 24 Pick. 102; Allen v. Kincaid, 2 Fairf. 155; Stuyvesant v. Woodruff, 1 N. J. 134; Trask v. Patterson, 29 Me. 499. The right of way is suspended or destroyed whenever the necessity ceases. Pierce . Selleck, 18 Conn. 321; Holmes v. Goring, 2 Bing. 76. Where a parcel of land is sold for a specific purpose, and conveyed without 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.

488.

(7) Williams v. Morris, 8 M. & W.

license by the plaintiff, and was irrevocable, because coupled with an interest. (z)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 * 535 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 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) They will consider all the facts and circumstances of the case in determin

(z) Wood v. Manley, 11 A. & E. 34; Poor . 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 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 proposi tion, 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.

(c) Crocker v. The Franklin H. & F. Man. Co. 3 Sumner, 530; Ellis v. Thompson, 3 M. & W. 445; Greaves r. Ashlin, 3 Camp. 426; Sawyer v. Hammatt, 15 Me. 40; Howe . 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 . 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.

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

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 r. Stubbs, L. R. 5 C. P. 334.- -K.

ing 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 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

this is obvious enough. If parties enter into a con- *536 tract, 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)

regular turns of loading," Liedemann v. Schultz, 14 C. B. 38, 24 Eng. L. & Eq. 305. Owing to the loose and inaccurate 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 v.

So custom may control and vary

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.

(f) "It has long been settled," says 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 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

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 transactions. 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.

538 the meaning of words; (g) giving even to such words as those of number a sense entirely different from that which