that, in the absence of admissible extrinsic evidence, this meant in point of law two lunar months, and that, unless the context, or the circumstances of the contract, showed that the parties meant two calendar months, the conduct of the parties to the written contract alone was not admissible to withdraw the construction of a word therein, of a settled primary meaning, from the judge and transfer it to the jury (d); and in general, where there are two alternative constructions, usage will be received to determine which is the right one (e).

Where a doubt is raised by evidence upon the meaning of a written contract, or where the contract contains words which have more than one meaning (f), extrinsic evidence is admissible of the usage or course of trade at the place where the contract is made, or where it is to be carried into effect, to explain or remove such doubt. Again, where a similar doubt arises as to the lex loci by which such a contract is to be construed, evidence of usage will be received to determine the place. Thus, where the question was whether goods were to be liable to freight according to their weight at the place of shipment, or according to their expanded weight at the place of consignment, the terms of the charter-party were construed by extrinsic evidence that the usage

(d) Fleming v. Fleming, 1 H. & C. 242.

(e) Blackett v. Royal Exchange Assurance Co., 2 C. & J. 250. (f) Buckle v. Knoop, L. R., 2 Ex. 125; 36 L. J., Ex. 49; 15 W. R. 588.

was to measure the goods according to their weight at the place of shipment (h); and where the question was as to the date of the arrival of the ship at the port named in the charter-party, evidence was admitted to show what spot in the port must be reached before, by the usage of the port, it is considered that the ship has arrived (). In order to admit extrinsic evidence the phrase need not be on the face of it ambiguous (k).

Extrinsic evidence is also admissible to annex incidents to a written instrument, where such incidents are consistent with the reasonable intention of the writing. Such incidents fall generally within the definition of express or implied usage. In such cases the notoriety of the usage makes it an element of the writing. Thus, where a written contract contained a stipulation that a party should "lose no time on his own account, and do his work well and behave himself in all respects as a good servant." extrinsic evidence was received to show that, by the custom of his trade, such a party was entitled to certain holidays (1). "It has long been settled 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

(h) Bottomley v. Forbes, 5 Bing. N. C. 121.

(i) Steamship Co., Norden v. Dempsey, L. R., 1 C. P. D. 654; 45 L. J., C. P. 764; 24 W. R. 984.

(k) Per Blackburn, J., Myers v. Sarl, 3 E. & E. 319.

(1) R. v. Stoke-upon-Trent, 5 Q. B. 303.

known usages have been established and prevailed; and this 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" (m). "Mercantile contracts are very commonly framed in a language peculiar to merchants; the intention of the parties, though perfectly well known to themselves, would often be defeated, if the language were strictly construed according to its ordinary import in the world at large. Evidence, therefore, of mercantile custom and usage is admitted in order to expound it, and arrive at its true meaning. Again, in all contracts 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 reduce into writing the special particulars of their agreement, but omit to specify those known usages which are included, however, as of course, by mutual understanding: evidence, therefore, of such incidents is receivable. The contract, in truth, is partly express and in writing; partly implied or understood and unwritten; but in these cases a restriction is established on the soundest principle, that the evidence received must not be of 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

(m) Per Parke, B., Hatlon v. Warren, 1 M. & W. 475.

written terms of a contract without altering its effect more or less; neither in the construction of a contract among merchants, tradesmen, or others, will the evidence be excluded because the words are in their ordinary meaning unambiguous; for the principle of admission is, that words, perfectly unambiguous in their ordinary meaning, are used by the contractors 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 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" (n). So, there being in every voyage policy of insurance an implied warranty of seaworthiness, parol evidence is admissible to show the amount of seaworthiness required (o).

A few more illustrations will complete the outline of this doctrine. In Browne v. Byrne, a bill of lading specified a certain sum as payable for freight, and it was held that an indorsee, in an action for the amount, might give evidence of a customary deduction. The extrinsic evidence in this case, although bordering on repugnancy, was received because the bill of lading merely specified a sum certain for freight, without stipulating that it was to be free of all deductions. If the bill of lading had expressed,

(n) Per Coleridge, J., Browne v. Byrne, 3 E. & B. 703. (0) Burges v. Wickham, 3 B. & S. 669.

or if from the language of it the intention of the parties could have been collected, that the freight at the specified rate should be paid free from all deductions, customary or otherwise, then it would have been repugnant to it to set up the usage (p). Under a contract to carry a full and complete cargo of molasses from London and Trinidad, evidence has been received to qualify the contract by showing that a cargo is full and complete, if the ship be filled with casks of the standard size, although there be smaller casks of other produce freighted in the same vessel (q).

Where the defendants bought as brokers for a principal, whose name they did not disclose at the time of contract, it has been held that evidence of a custom will be admitted to show that in this case the broker is personally liable on the contract (r). It may be shown that by the usage of trade an inferior kind of palm oil answers to the description of "best palm oil" (s); or that by the custom of the building trade the words "weekly accounts" refer to regular day work only (t); or that credit "for six or eight weeks" does not necessarily give the whole eight weeks for payment for goods (u). It is a leading principle than an agricultural custom, as that a tenant shall have an away-going crop, is good if not

(p) 3 E. & B. 703; cf. Phillipps v. Briard, 1 H. & N. 21.

(9) Cuthbert v. Cumming, 11 Ex. 405.

(r) Humfrey v. Dale, 7 E. & B. 266; E., B. & E. 1001.

(8) Lucas v. Bristow, E., B. & E. 907.

(t) Myers v. Sarl, 3 E. & E. 306.

(u) Ashwell v. Retford, L. R., 9 C. P. 20; 43 L. J., C. P. 57.