would not have bound the agent personally, has been held to bind him under a usage which made an agent liable who failed to disclose his principal.68 Where a bill of lading made goods deliverable on payment of freight of "5/8 of a penny per pound, with 5% primage, and average accustomed," a usage by which three months' discount was deducted from bill of lading freight of goods coming from the port of shipment was held ineffectual; 69 but a usage of the stock exchange relieving a jobber who has contracted to buy shares, from liability, if he gives the seller the name of another who will assume the contract and no objection to the nominee is made by the seller within ten days has been upheld.70 Where an agreement was made for the payment of $12 an acre for clearing twenty miles of a right of way, a usage was given effect to pay for clearing so much of the right of way as extended through open fields, only that proportion of the price which such work bore to the work necessary to clear an equal space in the forest.71 Usage may make a buyer bound to pay divisibly for instalments of the seller's performance, though apart from the usage no payment would be due until the seller had completely performed; 72 and may give the buyer a right to inspect the goods before paying a draft for the price, though apart from custom he would have no such right.73 A usage of pawnbrokers to sell unredeemed pledges after the expiration of six months has been enforced against a pledgor though the rule of the common law gives no such right.74 A contract to pay money has been shown by usage to be satisfied by payment by check.75 It may be questioned whether the effect produced by usage in these cases could have been produced by a collateral parol agreement. Had there been no usage the natural implications of the writing would have been too strong.76 § 655. How far law may be changed by custom. 99 77 Though usage may work such changes in the rule of law applicable to a situation, as the parties themselves might have brought about had they in terms so agreed, it is a general rule that "where the incident [which it is sought to annex by proof of usage] is of such a nature that the parties are not themselves competent to introduce it by express stipulation, no such incident can be annexed by the tacit stipulation arising from usage. This means that if an express agreement would be either in violation of public policy or forbidden effect by law, an equivalent usage will not help the matter. Parties cannot effectively agree that a parol promise shall be binding without consideration, and the fact that a community or group of persons is accustomed to act as if such promises were binding will make no difference. So where a Factor's Act gives power to a mercantile agent to pledge the goods of his principal, a usage denying such power and invalidating such a pledge is ineffective.78 And where the law does not permit one party to a contract within the Statute of Frauds to sign a memorandum as agent for the other, even if authorized to do so,79 a usage permitting such agency is ineffective.80 But even this principle may have its exceptions. The rules of law governing negotiable instruments are based on the custom of merchants and are often not only different from, but contradictory to the rules governing other contracts. Choses in action cannot be made negotiable by express stipulation. Yet custom has made some choses in action negotiable, and may apparently have the same power still to make others negotiable.81 The "See also cases in the preceding section, of many of which the same might be said. "Crouch v. Credit Foncier, L. R. 8 Q. B. 374, 386; Northwestern Nat. Ins. Co. v. Southern States Phosphate &c. Co., 20 Ga. App. 506, 93 S. E. 157; Myers v. Exchange Nat. Bank, 96 Wash. 244, 164 Pac. 951. 78 Oppenheimer v. Attenborough, [1908] 1 K. B. 221. 79 See supra, § 587. 80 Happ Bros. Co. v. Hunter Mfg. &c. Co., 145 Ga. 836, 90 S. E. 61. 81 Though this is denied in Crouch v. Credit Foncier, L. R. 8 Q. B. 374, 386, that case is overruled by later decisions, holding that bonds by effect of the transfer of order bills of lading,82 and more recently of warehouse receipts giving the transferee not only title, but in effect possession of the property,83 is another illustration of a change in the law owing to mercantile custom, though express stipulation that something which the law does not regard as possession shall be so regarded, would ordinarily be ineffective. A converse case arises in England, where it is held that because of the usage of selling goods to hotel-keepers on conditional sale with retention of title, the goods are not in the order and disposition of the hotel-keeper within the bankrupt law.84 So the custom of market overt in England is contradictory to the general rule of the common law applicable to sale of goods. In truth usage is one of the agencies by which the law has been gradually formed and still is not only added to, but otherwise amended. The change, however, when other than a merely additional rule as distinguished from one contradicting a previously settled principle is gradual, especially in recent times, and not always frankly admitted when first made. That usage may harden by repeated decisions into such new rules of law as do not contradict any previously existing rule is, however, clearly stated.8 85 § 656. A usage which the parties have indicated an intention not to adopt is ineffective. Though a usage may show that the effect of a written contract is different from an apparently clear meaning which the writing would otherwise bear, it is obvious that if the parties modern custom may be made negotiable. Goodwin v. Robarts, L. R. 10 Ex. 337, 356; Rumball v. Metropolitan Bank, 2 Q. B. D. 194; Bechuanaland Co. v. London Trading Bank Co., [1898] 2 Q. B. 658; Edelstein v. Schuler, [1902] 2 K. B. 144. 82 Lickbarrow v. Mason, 2 T. R. 63, 1 H. Bl. 357, 2 id. 211, 6 East, 20 n. 5 T. R. 683. See Buller's general remarks, 2 Y. R. 63, 73. 83 See Merchants' Banking Co. v. Phoenix, etc., Steel Co., 5 Ch. D. 205; Millhiser Mfg. Co. v. Gallego Mills 84 In re Blanshard, 8 Ch. D. 601; Ex parte Brooks, 23 Ch. D. 261. 85 "There is no doubt that a mercantile custom may be so frequently proved in courts of common law, that the courts will take judicial notice of it, and it becomes part of the law merchant," per Mellish, L. J., in Ex parte Powell, 1 Ch. D. 501, 506. See also Universo Insurance Co. v. Merchants' Marine Ins. Co., [1897] 1 Q. B. 205, 2 id. 93. choose to exclude the application of usage by contracting upon different terms from those customary in the locality, they may do so; and it cannot be necessary in order to produce this result that they should state in terms that the usage is not adopted as part of the contract, if they otherwise make their intention manifest. Therefore, if the terms of their agreement read in the light of surrounding circumstances warrant the conclusion that they did not contract with reference to the usage, it will not be applicable. The question is whether "upon the construction of the whole contract, enough appears, either from express words or by necessary implication, to show that the parties did not intend that meaning, [i. e., that indicated by the usage] to prevail. The consequence is that every individual case must be decided on its own grounds, and upon the terms of the particular contract in dispute, regarded as a whole." On the one hand, the fact that a collateral stipulation contradicts the express words of the writing, if those words are taken literally, will not necessarily, though it will generally, prove that the parties did not contract with reference to the usage. Indeed, even though a usage contradicts merely Myers v. Sarl, 3 E. & E. 306, 320, per Blackburn, J. See also Sutro v. Heilbut, [1917] 2 K. B. 348. * In the following cases usages which contradicted the express terms of a contract were held ineffective. Suse . Pompe, 8 C. B. (N. S.) 538; Hall v. Janson, 4 E. & B. 500; Dickenson v. Jardine, L. R. 3 C. P. 639; Hayton v. Irwin, 5 C. P. D. 130; The Alhambra, 6 Prob. Div. 68; The Nifa, [1892] Prob. 411; Sutro v. Heilbut, [1917] 2 K. B. 348; Leopold Walford, Ltd., v. Les Affreteurs Réunis, [1918] 2 K. B. 498; Moore v. United States, 196 U. S. 157, 25 S. Ct. 202, 49 L. Ed. 428; The Rebecca R. Douglass, 248 Fed. 366; Smith v. National Bank, 191 Fed. 226; Jenkins S. S. Co. v. Preston, 186 Fed. 609, 108 C. C. A. 473; Municipal Investment Co. v. Industrial Trust Co., 89 Fed. 254; Shelby Iron Co. v. Dupree, 147 Ala. 602, 41 So. 182; People's Bank & Trust Co. v. Walthall, (Ala. 1918), 75 So. 570; Withers v. Moore, 140 Cal. 591, 74 Pac. 159; Wiggin v. Federal Stock & Grain Co., 77 Conn. 507, 59 Atl. 607; Vardeman v. Penn Mutual Life Ins. Co., 125 Ga. 117, 54 S. E. 66; Braun v. Hess, 187 Ill. 283, 58 N. E. 371, 79 Am. St. Rep. 221; Van Camp v. Hartman, 126 Ind. 177, 25 N. E. 901; Independent School Dist. v. Swearngin, 119 Ia. 702, 94 N. W. 206; Eckhardt v. Taylor, 90 Kans. 698, 135 Pac. 579; Columbia Malting Co. v. Glenmore Distilleries Co., 150 Ky. 229, 150 S. W. 53; Gooding V. Northwestern Mut. L. I. Co., 110 Me. 69, 85 Atl. 391; Denton v. Gill, 102 Md. 386, 62 Atl. 627; Auto, etc., Co. v. Merchants' Nat. Bank, 116 Md. 179, 81 Atl. 294; Parks v. Griffith & Boyd Co., 123 Md. 232, 91 Atl. 581; Agri Mfg. Co. v. Atlantic Fertilizer Co., 129 Md. 42, 98 Atl. 365; Boruszweski v. Middlesex Mut. Assur. Co., 186 Mass. 589, 72 N. E. 250; Johnson an implication from the writing, that fact may show that the parties did not contract with reference to the usage. As a general rule in such cases, however, the usage will substitute a different implication for the implication which otherwise would be drawn; but no rule can be stated which will avoid the necessity of considering the particular contract in question in the light of surrounding circumstances including the usage and determining whether an intention has been manifested to exclude the application of the usage. It will be applicable provided the parties are chargeable with knowledge of it, unless such an intention is manifested.88 § 657. Characteristics of usage essential for its validity. It is said that a custom in order that it may be considered as entering into a contract and forming part of it, must be 'reasonably uniform and well settled, not in opposition to fixed rules of law, and not in contradiction of the terms of the contract." 89 There is some confusion between usage and custom, when the same statement is made in regard to usage, as it often is. How far any such statement is warranted must be considered. v. Norcross Bros. Co., 209 Mass. 445, 95 N. E. 833; Hayward v. Wemple, 152 N. Y. App. Div. 195, 136 N. Y. S. 625, affd., 206 N. Y. 692, 99 N. E. 1108; Goulds Mfg. Co. v. Munckenbeck, 20 N. Y. App. Div. 612, 47 N. Y. S. 325; Richard v. Haebler, 36 N. Y. App. Div. 94, 55 N. Y. S. 583; Manerud v. Eugene, 62 Oreg. 196, 124 Pac. 662; Syer v. Lester, 116 Va. 541, 82 S. E. 122; Mowatt v. Wilkinson, 110 Wis. 176, 85 N. W. 661; Dunning v. Lederer, 164 Wis. 399, 160 N. W. 159. 88 See cases supra, §§ 653, 654. 89 Hopper v. Sage, 112 N. Y. 530, 535, 20 N. E. 350, 8 Am. St. Rep. 771; P. J. Kennedy & Sons v. Perkins & Squier Co., 154 N. Y. S. 101. To similar effect see-Continental Coal Co. v. Birdsall, 108 Fed. 882, 47 C. C. A. 124; Loval v. Wolf, 179 Ala. 505, 60 So. 298; Wheelright v. Dyal, 99 Ga. |