power to sell.17 The words "to be shipped prompt" have been shown to mean, among grain dealers, within ten days. 18 Words of measurement may be shown to bear an unusual meaning; 19 "rags" may include whatever is used for paper stock; 20 and "old metals," glass and rubbers; 21 "a crop" may by usage be shown to include what the seller had acquired by purchase as well as what he raised; 22 "Close of navigation for the season" may be shown to mean Nov. 30th, although navigation was in fact possible after that date; 23 "Dry goods" may be shown to exclude notions, clothing, hats and caps;24 the word "noon may be shown to mean twelve o'clock standard time rather than actual time.25 "Winter season" has been shown to mean the period between the time a saw mill closed in the autumn and the arrival of logs in the spring;26 "Working Days" has been shown to exclude freezing weather; 27 "San Domingo mahogany" has been shown to be a trade name covering a good figured mahogany equal in density to the San Domingan variety; 28 "Sawlogs" may by usage mean only pine logs.29

17 Smith v. Clewes, 114 N. Y. 190, 21 N. E. 160, 4 L. R. A. 392, 11 Am. St. Rep. 627.

18 Soper v. Tyler, 77 Conn. 104, 58 Atl. 699.

19 The meaning of "bushel of a particular commodity may be shown to be 32 pounds. Richardson v. Cornforth, 118 Fed. 325, 55 C. C. A. 341, or 14 pounds, Brent v. Chas. H. Lilly Co., 202 Fed. 335." "Thousand" as applied to rabbits, may mean twelve hundred. Smith v. Wilson, 3 B. & Ad. 728. "Thousand" may also be shown by custom to mean a quantity estimated by measure to amount to a thousand, but in fact not exactly that number. Lowe v. Lehman, 15 Ohio St. 179; Pittsburgh v. O'Neill, 1 Pa. St. 342. So two packs of shingles may by custom be referred to in a contract as a thousand, though not containing that exact number. Soutier v. Kellerman, 18 Mo. 509. See also Walker v. Syms, 118 Mich. 183, 76 N. W. 320. But in Rogers v. Hayden, 91 Me. 24, 39 Atl. 283, a custom of determining the

number of cubic yards of stone, sold at a price per cubic yard, after it had been laid in a wall, was held unreasonable when it would result in doubling the quantity actually sold. 20 Mooney v. Howard Ins. Co., 138 Mass. 375, 52 Am. Rep. 277.

21 Ibid.

22 Goodrich v. Stevens, 5 Lans. 230. 23 Eddy v. Northern Steamship Co., 79 Fed. 361.

24 Wood v. Allen, 111 Ia. 97, 82 N. W. 451.

25 Rochester German Ins. Co. v. Peaslee-Gaulbert Co., 120 Ky. 752, 87 S. W. 1115, 89 S. W. 3.

26 Barker v. Citizens' Mutual Fire Ins. Co., 136 Mich. 626, 99 N. W. 866.

27 General Bonding &c. Co. v. MeQuerry (Tex. Civ. App.), 1915 W. 858.

28 Snoqualmi Realty Co. v. Moynihan, 179 Mo. 629, 78 S. W. 1014.

29 W. T. Smith Lumber Co. v. Jernigan, 185 Ala. 125. 64 So. 300, Ann. Cas. 1916 C. 654.

In a contract for the sale of lumber by measure, a particular method of measurement may be shown to be customary.30 A contract calling for shipment from Turkey to New York has been held satisfied by a cargo shipped from Turkey to Liverpool and transshipped there to New York, that being the customary mode of shipment.31 "Cash basis, note at sixty days, interest added" may be shown to mean that the buyer has the option of paying either in cash or by note.32

§ 651. Usage may be adopted as a term of a contract.

The belief of individuals or of a community that a rule of law is something different from what it actually is, will not change the rule of law.33 Nor will it make any difference if the members of the community habitually settle disputes in accordance with their erroneous belief. At least, a habit must be general and continue for a long time before the common law will adopt the custom as part of itself. But if two individuals of such a community make a contract with one another with reference to a matter to which a well-known habit or usage applies, and if the common law does not forbid the application of the customary rule if parties agree thereto, a different problem is presented. The only question now is whether the parties to the contract have agreed impliedly to be bound by the usage. They cannot change the rule of law but they can change its application to themselves if they agree to do so. The belief of a community that an implied warranty of quality accompanies every sale of goods will not make that the law. But it is the law that if the parties to a sale agree that there shall be a warranty of quality the law enforces their agreement. If then each party to a sale knows that the other believes that there is a warranty impliedly given and assents to its existence, there seems no reason why the implication of fact involved in the existence of the usage should not be given the same effect as any implication of fact in the law of contracts.34

≫ McKinney v. Matthews, 166 N. C. 576, 82 S. E. 1036; Brown v. Brooks, 25 Pa. 210.

"Iasigi v. Rosenstein, 158 N. Y. 678, 52 N. E. 1124. Cf. Sutro v. Heilbut, [1917] 2 K. B. 348.

32 Morris v. Supplee, 208 Pa. 253, 57 Atl. 566.

33 Haskins v. Warren, 115 Mass. 514.

34 See Eames v. H. B. Claflin Co., 239 Fed. 631, 152 C. C. A. 465.

Broad statements, therefore, which are sometimes made, that usage or custom cannot change a rule of law,35 must be accepted with some reservation. The rule of law cannot be changed, but its application to the case may be prevented. The facts as they appear to be apart from the usage are altered by the additional agreement which is implied because the parties contracted with reference to the usage. The additional facts make a rule of law applicable which would not have been applicable in the absence of the usage. Otherwise it would have been idle to introduce evidence of it. Indeed the very existence or non-existence of a contract may depend upon usage. Thus usage in a particular trade that one party should confirm in writing telephone agreements, and the other should promptly give notice if the written confirmation proved inaccurate has been rightly held admissible.36 It is evident that under this usage a contract made by telephone may by lack of confirmation be invalidated, and a disagreement by telephone may by failure to object to the written confirmation ripen into a contract.

§ 652. Collateral agreements may be added to written contracts by usage.

In accordance with the principles heretofore considered, in connection with collateral parol agreements, it may be shown that a matter concerning which the written contract is silent, is affected by a usage with which both parties are chargeable. "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

35 Fleming v. King, 100 Ga. 449, 28 S. E. 239; Western Union Cold Storage Co. v. Winona Produce Co., 197 Ill. 457, 64 N. E. 496; Entwhistle v. Henke, 211 Ill. 273, 71 N. E. 990, 103 Am. St. Rep. 196; Van Camp Packing Co. v. Hartman, 126 Ind. 177, 25 N. E. 901; High Wheel Auto Parts Co. v. Journal Co., 50 Ind. App. 396, 98 N. E. 442; Clark v. Allaman, 71 Kans. 206, 80 Pac. 571, 70 L. R. A. 971; Grant v. Robb, 71 Kans. 846, 80 Pac. 585;

Pickering v. Weld, 159 Mass. 522, 34 N. E. 1081; Healey v. Mannheimer, 74 Minn. 240, 76 N. W. 1126; Hart v. Cort, 165 App. Div. 583, 151 N. Y. S. 4; Syer v. Lester, 116 Va. 541, 82 S. E. 122. Thus a custom that freight prepaid is not to be returned in case the vessel is lost, has been held ineffective. De Sola v. Pomares, 119 Fed. 373.

36 Strong v. Ringle, 96 Kans. 573, 152 Pac. 631.

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 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 a contract with reference to those known usages. 99 37 This necessarily involves the proposition that evidence of usage may be introduced to contradict implications of fact or law which in the absence of usage would have been drawn from the writing, since otherwise there would be no point in proving the usage." The matter has been confused by statements, often inconsistent, made by courts of high authority. Thus Clifford, J., of the Supreme Court of the United States, speaking for the court has said: "Usage is admissible in certain cases for the purpose of annexing incidents to the contract in matters upon which the contract is silent, but it is never admitted to make a contract or to add a new element to the terms of a contract previously made by the parties," 39 and the statement is typical of the endeavor of many courts to give in practice to usage a greater effect than they admit in theory. In fact, the statement is self-contradictory. The distinction between "annexing incidents" and "adding a new element" is impossible to draw. Usage when not admitted merely for the purposes of defining the meaning of language is necessarily introduced for the purpose of adding a new element or term or incident, whichever one is pleased to call it, to the contract. 40 "Hutton v. Warren, 1 M. & W. 466, 475, per Parke, B. So "Evidence of a custom can be given in two cases: (1) to interpret a business term or expression in a contract, and (2) to annex an incident to the contract." Sutro v. Heilbut, [1917] 2 K. B. 348, 365. "Usage enters into every contract, and may be shown for the purpose not only of elucidating the contract, but also of completing it." Bitulithic Co. v. Algiers Ry. & Lighting Co., 130 La. 830, 58 So. 588. See also Produce Brokers' Co. v. Olympia Oil and Cake Co., [1916] A. C. 314, 331.

38 The implication contradicted may be merely negative, i. e., that the parties had made no agreement in regard to the matter to which the custom related.

39 The Delaware, 14 Wall. 579, 603, 20 L. Ed. 779. Equally futile is the distinction suggested in Scott's Exec. v. Chesterton, 117 Va. 584, 596, 85 S. E. 502, that "a custom of trade may control the mode of performance of a contract, but cannot change its intrinsic character."

40 The matter has been well expressed in Humfrey v. Dale, 7 E. & B. 266, E.

Sometimes almost every element of a contract is left to be determined by usage. When an employee is engaged, or an agent or corporate officer is appointed, the nature of his duties and sometimes his compensation and term of service are not stated but are fixed by what is customary and reasonable.

§ 653. Illustrations of collateral agreements annexed to written contracts by usage.

41 Wigglesworth v. Dallison, 1 Doug. 201. This decision by Lord Mansfield is the leading case on the admissibility of usage to annex incidents to a contract. Moore v. Coughlin, 36 Okl. 252, 128 Pac. 257. See contra Harris v. Carson, 7 Leigh, 632, 30 Am. Dec. 510.

Usage has been given effect in the following cases, though the rule of law would, in many of the cases, have been otherwise, apart from usage; that a tenant should have the crop growing at the expiration of a fixed term; 41 that a contract of employment by the year may be terminated by a month's notice; 42 that the travelling expenses of a salesman who receives a five per cent commission are to be deducted from the commission; 43 that the obligation to pay freight is to be based on the measurement at the place of shipment; 44 that on the rejection of a shipment by the consignee the carrier should notify the consignor within forty-eight hours; 45 that on a sale of shares providing for payment of the price in instalments B. & E. 1004. "In a certain sense every material incident which is added to a written contract varies it, makes it different from what it appeared to be, and so far is inconsistent with it. If by the side of the written contract without, you write the same contract with the added incident, the two would seem to import different obligations and be different contracts. The truth is, that the principle on which the evidence is admissible is that the parties have not set down on paper the whole of their contract in all its terms, but those only which were necessary to be determined in the particular case by specific agreement, and which of course might vary infinitely, leaving to implication and tacit understanding all those general and unvarying incidents which a uniform usage would annex, and according to which they must in reason be understood to contract, unless they expressly exclude them."

42 Parker v. Ibbetson, 4 C. B. (N. S.) 346. See also George v. Davies, [1911] 2 K. B. 445; Arkadelphia Lumber Co. v. Asman, 85 Ark. 568, 107 S. W. 1171; De Carlton v. Glaser, 172 N. Y. App. 132, 158 N. Y. S. 271. Cf. Bowen v. Chensa-Hignite Coal Co., 168 Ky. 588, 182 S. W. 635.

43 Himmel v. Levinstein, 132 Md. 317, 103 Atl. 848.

44 Buckle v. Knoop, L. R. 2 Exch. 125. See as to other maritime customs, Noble v. Kennoway, 2 Doug. 510; Allan v. Sundius, 1 H. & C. 123.

45 South Deerfield Onion Storage Co. v. New York, etc., R. Co., 222 Mass. 535, 111 N. E. 367.