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in two and four months, the seller need not deliver the shares without receiving payment concurrently with delivery; 6 that a contract to sell in terms performable at a fixed day is not to be regarded as broken until after the lapse of twenty-four hours' notice; 47 that insurance premiums will be accepted by the insurer after the day of payment fixed in the policy, and that the insurance in the meantime is not invalidated; 48 that a contract to perform for three years in a theatre at a weekly salary does not require payment of salary during the theatrical vacation; 49 that a period of credit may be attached to a contract of sale which apart from usage would require payment on delivery; 50 that in a sale on credit the delivery is to be concurrent with payment; 51 and that the buyer of goods shall be allowed a deduction of a certain percentage for wastage.52 The manner or place of delivery,53 or the mode of payment may be shown in the same way.54 The time within which an offer must be accepted similarly may be shown to be twenty-four hours; 55 and a time for the delivery of goods to be manufactured may by usage be shown to be reasonable, though apart from usage unreasonable.56 By usage it may be shown that on sales of lumber defects must be reported within ten days after delivery and that an inspector was then to be sent by the seller to adjust differences, and that the party found in fault

* Field v. Lelean, 6 H. & N. 617.

McDonald v. Union Hay Co. (Minn.), 172 N. W. 891.

Baxter v. Massasoit Ins. Co., 13 Allen, 320; Girard Life Ins. Co. u Mutual Life Ins. Co., 86 Pa. 236; National Mutual Ins. Co. v. Home Benefit Soc., 181 Pa. 443, 37 Atl. 519, 59 Am. St. Rep. 666. But see contra, Busby v. North American Life Ins. Co., 40 Md. 572, 17 Am. Rep. 634.

"Grant v. Maddox, 15 M. & W. 737.

50 Barrie v. Quinby, 206 Mass. 259, 264, 92 N. E. 451.

$1 Field v. Lelean, 6 H. & N. 617; Barrie v. Quinby, 206 Mass. 259, 265, 92 N. E. 451.

52 Vanderbilt v. Ocean S. S. Co., 215 Fed. 886, 132 C. C. A. 226; Hayes v.

Union Mercantile Co., 27 Mont. 264, 70 Pac. 975.

53 Pittsburgh, etc., R. Co. v. Knox, 177 Ind. 344, 98 N. E. 295; Smith v. Bloom, 159 Ia. 592, 141 N. W. 32; Gehl v. Milwaukee Produce Co., 116 Wis. 263, 93 N. W. 26.

54 New England Box Co. v. Flint, 77 N. H. 277, 90 Atl. 789; Blalock v. Clark, 137 N. C. 140, 49 S. E. 88. See also Stone v. Perry, 60 Me. 48.

55 Robeson v. Pels, 202 Pa. 399, 51 Atl. 1028.

56 Barrie v. Quinby, 206 Mass. 259, 92 N. E. 451. Cf. Cameron Coal &c. Co. v. Universal Metal Co., 26 Okla. 615, 110 Pac. 720, 31 L. R. A. (N. S.) 618, where evidence of a parol agreement instead of usage was held inadmissible.

must pay the expenses of inspection.57 The English Sale of Goods Act provides 58 that where any right, duty, or liability, would arise under a contract of sale by implication of law, it may be negatived or varied by usage; and the American Uniform Sales Act has copied this provision.59 Under this statutory provision it has been held that a warranty may be attached by usage to a contract containing no express provision in regard to warranty, though in the absence of usage no warranty would be implied, and that a contract not expressly excluding a warranty may be shown to have been made without a warranty, though in the absence of usage a warranty would have been implied.61 How far usage might thus add a warranty, or deprive the buyer of one, which would otherwise have been implied is a matter of dispute in jurisdictions where the statutes referred to are not in force. In England the usage would doubtless have been admitted before the enactment of the statute.62 In the United States the weight of authority is otherwise.63 The English rule seems better. One who contracted with knowledge of such a usage would naturally say nothing about the matter unless desirous of excluding the operation of the usage, and if he was desirous of excluding its operation, he naturally would so state in express terms.

57 Folley v. Smith, 103 S. Car. 445, 88 S. E. 24. See also First Nat. Bank v. Hogg-Harris Lumber Co., 181 Ill. App. 220.

58 Sec. 55.

59 Sec. 71.

60 Procter v. Atlantic Fish Co., 208 Mass. 351, 94 N. E. 281 (overruling Dickinson v. Gay, 7 Allen, 29, 83 Amer. Dec. 656, which was decided before the enactment of the Uniform Sales Act); Rinaldi v. Mohican Co., 225 N. Y. 70, 121 N. E. 471.

61 Cointat v. Myham, 110 L. T. 749, reversing [1913] 2 K. B. 220.

62 Jones v. Bowden, 4 Taunt. 847; Syers v. Jonas, 2 Exch. 111; Harnor v. Groves, 24 L. J. C. P. 53, 56.

63 In the following cases usage was not permitted to add a warranty. Barnard v. Kellogg, 10 Wall. 383, 19

L. Ed. 987; Dickinson v. Gay, 7 Allen, 29, 83 Am. Dec. 656; Thompson v. Ashton, 14 Johns. 316; Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321; Wetherill v. Neilson, 20 Pa. St. 448, 59 Am. Dec. 741 (overruling Snowden v. Warder, 3 Rawle, 101); McKinney v. Fort, 10 Tex. 220. See also Thomas v. Guarantee Title & Trust Co., 81 Ohio St. 432, 91 N. E. 183, 26 L. R. A. (N. S.) 1210. But see contra Sumner v. Tyson, 20 N. H. 384; Florence Wagon Works v. Trinidad Mfg. Co., 145 Ala. 677, 40 So. 49, 50.

Usage was similarly not allowed to deprive a buyer of a warranty which otherwise would have been implied in Chicago Provision Co. v. Tilton, 87 Ill. 547, but the evidence was admitted in Sea tle Seed Co. v. Fujimori, 79 Wash. 123, 139 Pac. 866,

A right of the buyer to inspect goods before paying for them though bought under a contract which apart from the usage would be held to exclude such a right may also be established by usage.64

One who employs an agent to deal for him in a certain market, thereby consents to having the business transacted according to the usages of that market even though not aware of the nature of such usages. 65 Other illustrations of the addition of collateral agreements annexed by usage to contracts may easily be found.66

§ 654. Implications of fact or law in a writing may be contradicted more extensively by usage than by parol agreements.

Though the principle under which incidents are annexed to written contracts by usage is the same as that which controls the admission of collateral parol agreements, usage may be more effective than an express agreement. The test is probably, as has been suggested, the practical one whether a reasonable contracting party might fairly be supposed to have entered into the written contract in question and have intended to be bound both by its express terms, and also by the terms of the usage or collateral parol agreement in question. Concrete cases seem to indicate that reasonable persons may with far greater probability rely on a recognized usage to affect the otherwise natural implications of their written contracts than on collateral parol agreements. By usage a tenant has been held entitled to hold over part of leased premises after expiration of the notice to quit for which the lease provided.67 A signature "as agent to merchants" which the court admitted

"Roach v. Lane, 226 Mass. 598, 116 N. E. 470.

"Sutton v. Tatham, 10 A. & E. 27; Smith v. Reynolds, 66 L. T. 808; Forget v. Baxter, [1900] A. C. 467, 479; Partridge v. Cutler, 168 Ill. 504, 48 N. E. 125.

**See, ε. g., Arkansas, etc., R. Co. v. Premier Cotton Mills, 109 Ark. 218, 158 S. W. 148; Barrie v. Quinby, 206

Mass. 259, 92 N. E. 451; E. L. Welch Co. v. Lahart Elevator Co., 122 Minn. 432, 142 N. W. 828; and see cases in the following sections. Cf. Finch v. Zenith Furnace Co., 146 Ill. App. 257, affd., 245 Ill. 586, 92 N. E. 521; Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579.

67 Re Paul, 24 Q. B. D. 247.

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."

It may be questioned whether the effect produced by usage in these cases could have been produced by a collateral parol

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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.

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." 77 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

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