§ 660. Generality of usage. It is sometimes asserted that usage must be general in order to be effectual; but even custom, as distinguished from usage, might be local, and still binding; 99 and it seems clear that usage likewise may be. The real question where usage is concerned is whether the parties contracted with reference thereto. This will depend not merely on actually expressed assent to the adoption of the usage but on the justifiable belief of each party that the other was adopting it. A habit of business confined to the two parties to a contract may by implication be adopted as an unexpressed part of it. The habit indeed of one party, known and apparently acquiesced in by the other, may prove the adoption of an implied term of the contract between them.1 Consequently the generality of habit or usage is important only with reference to the inference properly to be drawn of the parties' knowledge or ignorance of its existence. The more general and notorious a usage is, the more clearly will either party to a contract be justified in assuming that the other is contracting with reference to the usage. § 661. What is necessary to make a party to a contract chargeable with usage. A party cannot be bound by usage unless he either knew or ought to have known of its existence and nature. Accordingly one who seeks either to define language or to annex a term to a contract by means of usage must either show that the other 589, 88 N. W. 324, 56 L. R. A. 573; Castleman v. Southern Mut. Life Ins. Co., 14 Bush, 197; McDonnell v. Ford, 87 Mich. 198, 49 N. W. 545; The Keystone v. Moies, 28 Mo. 243, 75 Am. Dec. 123; Schipper v. Milton, 51 N. Y. App. Div. 522, 64 N. Y. S. 935; Penland v. Ingle, 138 N. C. 456, 50 S. E. 850; Dempsey v. Dobson, 184 Pa. 588, 39 Atl. 493, 40 L. R. A. 550, 63 Am. St. Rep. 809; Nelson v. Southern Pac. Co., 15 Utah, 325, 49 Pac. 644; Saunders v. Southern Pac. Co., 15 Utah, 334, 49 Pac. 646; Russell's Ex'r v. Ferguson, 77 Vt. 433, 60 Atl. 802. "1 Bl. Comm. 76. 1 In Birely & Sons v. Dodson, 107 Md. 229, 235, 68 Atl. 488, the court said: "Where such usage is receivable at all, it may be either of a general usage in that trade or business or in the uniform course of dealing of the party against whom the usage is invoked in his transactions with the other party; the acts and admissions of the parties in the one case, and the general custom of the business in the other being held to enter into the particular contract. Citizens Fire Ins. Co. v. Doll, 35 Md. 89, 107; 145." 2 party was actually aware of the usage, or must show that there was a well-defined usage generally adopted by those engaged in the business to which the contract relates, at the place where the contract was made or was to be performed. It must, if not known, be so notorious that a person of ordinary prudence in the exercise of reasonable care would be aware of it. If so notorious actual knowledge of it is immaterial, for "A person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business. And this is so whether he knew of the custom or not." 5 2 Gabay v. Lloyd, 3 B. & C. 793; Bartlett v. Penland, 10 B. & C. 760; Sweeting v. Pearce, 7 C. B. (N. S.) 449, 482, 9 id. 534; Robinson v. Mollett, L. R. 7 H. L. 802, 836, 838; Chicago, etc., Ry. Co. v. Lindeman, 143 Fed. 946, 75 C. C. A. 18; Rastetter v. Reynolds, 160 Ind. 133, 66 N. E. 612; Universal Oil. & Fertilizer Co. v. Burney, 174 N. C. 382, 93 S. E. 912. 3 Sutton v. Tatham, 10 A. & E. 27; Bayliffe v. Butterworth, 1 Exch. 425; Kirchner v. Venus, 12 Moo. P. C. 361; Forget v. Baxter, [1900] A. C. 467, 479; Continental Coal Co. v. Birdsall, 108 Fed. 882, 48 C. C. A. 124; Chicago, etc., Ry. Co. v. Lindeman, 143 Fed. 946, 75 C. C. A. 18; Smith v. National Bank, 191 Fed. 226; Eames v. H. B. Claflin Co., 239 Fed. 631, 152 C. C. A. 465; Mullins Lumber Co. v. Williamson & Brown Land &c. Co., 246 Fed. 232, 158 C. C. A. 392; Central Commercial Co. v. Jones-Dusenbury Co., 251 Fed. 13, 163 C. C. A. 263; Exchange Nat. Bank v. Little, 111 Ark. 263, 164 S. W. 731; Beach v. Travelers' Ins. Co., 73 Conn. 118, 46 Atl. 867; Mobile Fruit Co. v. Judy, 91 Ill. App. 82; Newcomb Rubber Works v. Home Rattan Co., 100 Ill. App. 421; Currie v. Syndicate, 104 Ill. App. 165; American Ins. Co. v. France, 111 Ill. App. 310; Strange v. Carrington, 116 Ill. App. 410; Wallace v. Morgan, 23 Ind. 399; Rafert v. Scroggins, 40 Ind. 195; Hartley v. Richardson, 91 Me. 424, 40 Atl. 336; Baltimore Baseball Club v. Pickett, 78 Md. 375, 386, 28 Atl. 279, 280, 22 L. R. A. 690, 44 Am. St. 304; Himmel v. Levinstein, 132 Md. 317, 103 Atl. 848; Barrie v. Quinby, 206 Mass. 259, 92 N. E. 451; Puffer Mfg. Co. v. Yeager, 230 Mass. 557, 120 N. E. 97; Ledyard v. Hibbard, 48 Mich. 421, 12 N. W. 637, 42 Am. Rep. 474; Black v. Ashley, 80 Mich. 90, 44 N. W. 1120; Schurr v. Savigny, 85 Mich. 144, 48 N. W. 547; Bowser v. Fountain, 128 Minn. 198, 150 N. W. 795, L. R. A. 1916 B. 1036; Syer v. Lester, 116 Va. 541, 82 S. E. 122. 4 Steidtmann v. Joseph Lay Co., 234 Ill. 84, 84 N. E. 640, citing-Collins Ice Cream Co. v. Stephens, 189 Ill. 200, 59 N. E. 524; Chisholm v. Beaman Machine Co., 160 Ill. 101, 43 N. E. 796; Leavitt v. Kennicott, 157 Ill. 235, 41 N. E. 735. 5 Ibid., citing-Samuels v. Oliver, 130 Ill. 73, 22 N. E. 499; Taylor v. Bailey, 169 Ill. 181, 48 N. E. 200; Lyon v. Culbertson, 83 Ill. 33, 25 Am. Rep. 349; Doane v. Dunham, 79 Ill. 131; Bailey v. Bensley, 87 Ill. 556. See also Field v. Lelean, 6 H. & N. 617; Colman v. Clements, 23 Cal. 245; Lowe v. Lehman, 15 Ohio St. 179; Cormier v. H. H. Martin Lumber Co., 98 Wash. 463, 167 Pac. 1105; Hewitt v. John Week Lumber Co., 77 Wis. 548, 46 N. W. 822, and cases in preceding notes. 6 It is generally said that the usage must have existed for a considerable length of time. This supposed requirement relates rather to custom, and what is necessary to give custom the force of law, than to usage which derives its efficacy, from the assent of the parties to the contract. The essential matter there is that the usage shall have been at the time of the contract so notorious as to justify belief that the parties contracted with reference to it. And if it can be proved that the parties in fact knew of the usage it is immaterial for how brief a time it existed." The degree of proof that is necessary to satisfy a court that a particular usage existed, and that the contract must be interpreted with reference to it, may indeed vary according to the generality of the usage and the length of time which it has been in existence. "When once it is admitted that there is a custom, it becomes clear that the custom must have grown up, and it follows that the custom may change, and a new custom may become notorious, so as to be incorporated into every contract, unless it is expressly excluded. Then there comes a further stage, where the custom need no longer be proved, but the Courts will take judicial notice of it." 8 Where usage is general it is ordinarily a fair assumption that parties who contract under circumstances to which the usage is applicable either have or ought to have knowledge of it; but where a usage is local, no such implication necessarily arises. It must appear either that the usage was actually known or be inferable as a fact from residence or business transactions in the locality where it prevails that the party to the contract setting up the usage was justified in assuming knowledge of it by the other party. So even though a usage is general in a particular business, one who is not in that business will not 1 Bl. Comm. 76. Rastetter v. Reynolds, 160 Ind. 133, 66 N. E. 612. Moult v. Halliday, [1898] 1 Q. B. 125, 130. * Gould v. Cates Chair Co., 147 Ala. 629, 41 So. 675; McCall v. Herrin, 118 Ga. 522, 45 S. E. 442; Bacon Fruit Co. v. Blessing, 122 Ga. 369, 50 S. E. 139; Rake v. Townsend (Ia.), 102 N. W. 499; Kenyon v. Charlevoix Im provement Co., 135 Mich. 103, 97 N. W. 407; Baxter v. Sherman, 73 Minn. 434, 76 N. W. 211, 72 Am. St. Rep. 631; Leach v. Hughes, 74 N. Y. Misc. 69, 131 N. Y. S. 570; Gilmer v. Young, 122 N. C. 806, 29 S. E. 830; Robbins v. Maher, 14 N. Dak. 228, 103 N. W. 755. Cf. Pennsylvania R. Co. v. Naive, 112 Tenn. 239, 79 S. W. 124, 64 L. R. A. 443. "" 11 be bound by it, in the absence of knowledge or neglect of a duty, to inform himself. 10 It is, however, also said that "A party dealing in a particular market is presumed to know all customs of that market bearing upon the transaction in question.' Here as always the guide must be, not what one party actually knew or intended, but what he ought to have supposed the other party would understand him to intend. A Texan who comes into the Chicago grain market and transacts business there, is surely bound by the usages of the market if dealing with one who has no reason to know of his co-contractor's ignorance. 12 § 662. The province of the court and of the jury. Whether a usage exists is a question of fact, 13 though the evidence of it may be insufficient to warrant submission to the jury.14 Whether the facts are such that the parties must be assumed to have adopted the usage because of actual knowledge or duty to know, is also a question of fact.15 On the other hand, the validity of the usage and its effect, if any, upon the contract of the parties is a question of law. 16 10 Great Western Elevator Co. v. White, 118 Fed. 406, 56 C. C. A. 338; Laver v. Hotaling, 115 Cal. 613, 47 Pac. 593; Citizens' State Bank v. Chambers, 129 Ia. 414, 105 N. W. 692; Bixby v. Bruce, 69 Neb. 78, 95 N. W. 34. 11 Smith v. Bloom, 159 Ia. 592, 141 N. W. 32, 35, citing: Cothran v. Ellis, 107 Ill. 413; Bailey v. Bensley, 87 Ill. 556; Long v. Armsby Co., 43 Mo. App. 253. See also Hatch v. Douglas, 48 Conn. 116, 40 Am. Rep. 154; Soper v. Tyler, 77 Conn. 104, 106, 58 Atl. 699. 12 See supra, §§ 94, 95. 13 M'Lanahan v. Universal Ins. Co., 1 Pet. 170, 7 L. Ed. 98; Sullivan v. Jernigan, 21 Fla. 264; Chicago, etc., Co. v. Tilton, 87 Ill. 547; Currie v. Syndicate, 104 Ill. App. 165; Hichhorn v. Bradley, 117 Ia. 130, 90 N. W. 592; Fish v. Crawford Mfg. Co., 120 Mich. 500, 79 N. W. 793; Powell v. Luders, 84 Minn. 372, 87 N. W. 940; Traders Ins. Co. v. Dobbins, 114 Tenn. 227, 86 S. W. 383; Oriental Lumber Co. v. Blades Lumber Co., 103 Va. 730, 50 S. E. 270; Denny v. Williams, 5 Allen, 1. 14 Chicago, etc., R. Co. v. Lindeman, 143 Fed. 946, 75 C. C. A. 18. 15 Scott v. Brown, 29 N. Y. Misc. 320, 60 N. Y. S. 511. 16 Lauchheimer v. Jacobs, 126 Ga. 261, 55 S. E. 55; Hess v. Shurtleff, 74 N. H. 114, 65 Atl. 377; Runyan v. Central Railroad, 64 N. J. L. 67, 44 Atl. 985, 48 L. R. A. 744; Silver Valley Min. Co. v. North Carolina Smelting Co., 122 N. C. 542, 29 S. E. 940. Aid to interpretation from considering which party uses language. 672 673 Pleading in actions on conditional contracts... 674 675 §663. Nature of conditions. A condition in a promise limits the undertaking of the promisor to perform, either by confining the undertaking to the case where the condition happens, or to the case where it does not happen. It is ordinarily said that a condition must be something future and uncertain, and it is undoubtedly true that at least from the standpoint of the parties, both futurity and uncertainty are necessary elements. If to their knowledge the event has either already happened or cannot possibly happen, the promise is either absolute or nugatory from the outset. It may be said that this is true whether the parties are aware of the facts or not, and such a statement is strictly accurate. A promise to pay for a horse if he is sound, could only be regarded by an omniscient person as either no promise or as an absolute promise, according as the horse was at the time of the bargain in fact sound or unsound. But the parties to such a transaction undoubtedly look at it as involving a promise subject to a condition, because their knowledge of the horse's condition will not be complete until the future, and the common law accepts that point of view. The situation suggested of a promise qualified by the |