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per ton of 20 cwt. of tallow was to be taken as the standard by which the rate of freight on all other goods was to be measured. Russian S. Navigation Trading Co. v. Silva, 13C. B., N. S. 610. The question whether a cargo “ for shipment in June was satisfied by a cargo which was loaded half in May and half in June, was held by Martin, B., and Lush, J. (dub. Kelly, C. B., and Blackburn, J.), to be a question for the jury. Alerander v. Vanderzee, L. R., 7 C. P. 530, Ex. Ch. See observations on this case in Shand v. Bowes, 2 Ap. Ca. 455, D. P. So, on a sale of goods to be paid for in from “six to eight weeks,” the question of the length of credit thereby allowed was left to the jury, the words apart from usage being insensible. Ashford v. Redford, L. R., 9 C. P. 20. A written agreement at a yearly salary and a bonus at the year's end in case of the employer's approval, may be qualified by proof of a trade custom to dismiss at a month's notice. Parker v. Ibbetson, 4 C. B., N. S. 346; 27 L. J., C. P. 236 ; and see Action for wrongful dismissal, post, p. 496.
With reference to the evidence necessary to support an alleged usage, it was said in Ghose v. Manichchund, 7 Moo. Ind. App. 263, 282, that “there needs not either the antiquity, the uniformity, or the notoriety of custom, which in respect of all these becomes a local law. The usage may be still in course of growth; it may require evidence for its support in each case ; but in the result it is enough, if it appear to be so well known and acquiesced in, that it may be reasonably presumed to have been an ingredient tacitly imported by the parties into their contract.” The usage must be shown to be certain and reasonable, and so universally acquiesced in that everybody in the particular trade knows it, or might know it if he took the pains to inquire. Plaice v. Allcock, 4 F. & F. 1074, per Willes, J.; Foxull v. International Land Credit Co., 16 L. T., N. S. 637, cor. Byles, J.
Where it is attempted to engraft on a contract some usage of a particular trade or local custom, the opposite party is at liberty to disprove the usage or custom by the like evidence, and for that purpose to show other previous transactions in like cases between the same parties wherein the supposed usage or custom was not acted on. Bourne v. Gatliffe, 3 M. & Gr. 643.
If the usage exists, and it is not inconsistent with the written contract, it is precisely the same as if it were written in words attached to the contract, and it cannot be got rid of by proof of an oral agreement to waive or vary it. Fawkes v. Lamb, 31 L. J., Q. B. 98. See also Burges v. Il'ickham, 3 B. & S. 669; 33 L. J., Q. B. 17; Clapham y. Langton, 5 B. & S. 729; 34 L. J., Q. B. 46, Ex. Ch.
It has been said that “the words 'usage of trade' are to be understood as referring to a particular usage to be established by evidence, and perfectly distinct from that general custom of merchants, which is the universal established law of the land, which is to be collected from decisions, legal principles and analogies, not from evidence in pais, and the knowledge of which resides in the breasts of the judges.' 1 Smith, L. Cases, 9th ed., pp. 581, 582. Thus, in Suse v. Pompe, 8 C. B., N. S. 538; 30 L. J., C. P. 75; Meyer v. Dresser, 16 C. B., N. S. 646; 33 L. J., C. P. 289, evidence of a general custom was not admitted to contradict the law merchant. That law has, however, been gradually developed by judicial decisions, ratifying the usages of merchants in the different departments of trade; Goodwin v. Robarts, L. R., 10 Ex. 337, 346, per Ex. Ch.; and “where a general usage has been judicially ascertained and established it becomes part of the law merchant which courts of justic are bound to know and recognise.” Id. citing Brandão v. Barnett, 12 Cl. & F. 805, per Lord Campbell. It is not easy to define the period at which a usage so becomes incorporated into the law merchant. See further 1 Smith's L. C., 9th ed., pp. 581, et seq.
See also Kidston v. Empire Marine Insurance Co., L. R., 1 C. P. 535; L. R., 2 C. P. 357, Ex. Ch.
Proof of the usage of trade is not admissible to contradict the plain words of an instrument not used in a technical sense; as where a policy of insurance was on the ship till moored at anchor 24 hours, and on the goods till discharged and safely landed,” evidence of a usage that the risk on the goods, as well as the ship, expired in 24 hours, was held inadmissible to qualify the unequivocal words of the policy. Parkinson y. Collier, Park. Ins. 6th ed. 416. So where a charterparty provides that the vessel is to deliver at H., “or so near thereto as she could safely get," a custom that the charterer should take delivery at H. only is excluded. Hayton v. Irwin, 5 C. P. D. 130, C. A. See also The Alhambra, 6 P. D. 68, C. A. So a contract for payment in money cannot be explained to mean payment in goods; but it may be shown that goods were in fact accepted as cash in the particular transaction. Smith v. Battams, 26 L. J., Ex. 232. So where goods are sold under a memorandum to be paid for by bill, oral evidence is inadmissible to show that bill means approved bill. Hodgson v. Davies, 2 Camp. 530. So in an action on a warranty of “prime singed bacon," oral evidence was rejected of a practice in the bacon trade to receive bacon in some degree tainted as "prime singed bacon.” Yates v. Pym, 6 Taunt. 446; 2 Marsh. 141. So oral evidence is not admissible to explain the meaning of the words “ more or less” in a mercantile contract; semble, Cross v. Eglin, 2 B. & Ad. 106; or to show that “cargo” and "freight” apply to passengers as well as goods; Lewis v. Marshall, 7 M. & Gr. 729; or to show that boats on the outside of a ship, slung upon the quarter, are not protected by a marine policy in the usual form on the ship and furniture; Blackett v. R. Exchange Assur. Co., 2 C. & J. 244; or to show a custom within the port of London that the insurers of jettisoned goods are only liable for the share of the loss cast upon the owner of jettisoned goods in the general average statement; Dickenson v. Jardine, L. R., 3 C. P. 639; or to show that a contract to sell “ware potatoes means a certain sort of “ware potatoes”; Smith v. Jeffryes, 15 M. & W. 561; or that, on a contract to sell wool “to be paid for by cash in one month, less 5 per cent. discount,” the vendor has a lien on it for payment by usage of the trade; Spartali v. Benecke, 10 C. B. 212; 19 L. J., C. P. 293; Godts v. Rose, 25 L. J., C. P. 61. The case of Spartali v. Benecke, supra, was a good deal observed upon by the Ex. Ch. in Field v. Lelean, 6 H. & N. 627; 30 L. J., Ex. 170; ante, p. 23; but the difference of opinion is not as to the principle, but as to the meaning of the contract and the effect of the custom. See also Phillippe v. Briard, 1 H. & N. 21 ; 25 L. J., Ex. 233; ante, p. 23. Oral evidence of what the parties meant by a provision in the sale of a cargo, that “ 14 days are to be allowed for delivery,” was not admitted; but if evidence of a general usage explaining those words had been offered, it would perhaps have been admissible. Sotilichos v. Kemp, 3 Exch. 105. In a contract for the sale of tallow by defendant in the name of a broker who was his known representative, the defendant was not allowed to show a custom of trade upon such a contract to look to the broker for its completion. Trueman v. Loder, 11 Ad. & E. 589. But usage of trade is admissible to show that the broker is
personally liable on a contract of sale on behalf of an undisclosed principal. Humfrey v. Dale, 7 E. & B. 266; 26 L. J., Q. B. 137; E. B. & E. 1004; 27 L. J., Q. B. 390, Ex. Ch. See also Cropper v. Cook, L. R., 3 C. P. 194, 199. So where a broker sells goods “for and on account of the owner,” evidence was held admissible of a usage of trade that a broker who does not disclose the name of his principal at the time of making the contract is personally liable. Pike v. Ongley, 18 Q. B. D. 708, C. A. See also Hutchinson v. Tatham, L. R., 8 C. P. 482. The evidence of such usages may be confirmed by evidence of a similar custom in a similar trade in the same place, e.g., in the colonial market, to corroborate the usage in the fruit market. Fleet v. Murton, L. R., 7 Q. B. 126. So by evidence of a similar custom in the same trade at a neighbouring place. Plaice v. Allcock, 4 F. & F. 1074, cor. Willes, J. The distinction between these latter cases and Trueman v. Loder, ante, p. 25, is founded on the rule that oral evidence may be given to establish the right or liability of an undisclosed principal, but not for the purpose of excluding from liability a person liable on the face of a written contract, for the effect of evidence admitted for this latter purpose would be to contradict the written document. But a custom that an agent's authority to underwrite policies is limited to a particular sum is good, though the insured is not aware of the limitation. Baines v. Ewing, L. R., 1 Ex. 320. A clause in a contract of sale for the final settlement of any difference under the contract by the selling brokers is inconsistent with their personal liability. Barrow v. Dyster, 13 Q. B. D. 635.
It has been doubted whether the practice of admitting oral evidence in these cases has not been carried to an inconvenient length. See Anderson v. Pitcher, 2 B. & P. 168. “How far a mercantile contract reduced to writing and signed by the parties, which is silent on a particular point, may have that silence supplied by evidence of a general course and usage of the trade to which it relates, is a question which it would be difficult to answer with exactness and precision.” Per Tindal, C. J., in Whittaker v. Mason, 2 N. C. 369, 370 ; and per Cur. in Trueman v. Loder, supra, “ The cases go no further than to permit the explanation of words used in a sense different from their ordinary meaning, or the addition of known terms not inconsistent with the written contract.”
The usages of a market are binding on principals ordering goods to be bought on a market by their agents; Ireland v. Livingston, L. R., 2 Q. B. 99, 107 (affirm. L. R. 5 H. L. 395, on another ground); Bayliffe v. Butterworth, 1 Exch. 423; Maxted v. Paine, L. R., 6 Ex. 132, Ex. Ch. ; Merry v. Nickalls, L. R., 7 H. L. 530. It is immaterial whether the principal did or did not know of the usage, provided it be reasonable, Grissell v. Bristowe, L. R. 4 C. P. 49, but not otherwise; Perry v. Barnett, 15 Q. B. D. 388, C. A.; or if the usage not only regulate the mode of performing the contract, but also change its intrinsic character. Mollett v. Robinson, L. R., 7 H. L. 802, 836. A person employed to act as broker cannot, by the custom of the market, assume the character of principal, where his employer is ignorant of the custom. S. C. The customer of a bank is bound by the custom of bankers. Emanuel v. Robarts, 9 B. & S. 121. So are mercantile persons having dealings with bankers. Currie y, Misa, 1 Ap. Ca. 554, D. P.
Oral evidence, when admissible to control or explain agricultural contracts.] A custom affecting the contract may be proved by oral evidence in other, as well as in mercantile, contracts; as in the case of agricultural contracts. Thus, it may be proved that a heriot is due by custom on the death of a tenant, though not expressed in the lease. White v. Sayer, Palm. 211. Or, that a lessee by deed or writing is entitled by custom to an awaygoing crop, though it be not mentioned in the deed. Wigglesworth v. Dallison, 1 Doug. 201; Senior v. Armytage, Holt, N. P. 197. But where a covenant excludes the customary right by an express provision on the subject-matter of the custom, evidence of such right is inadmissible. Webb v. Plummer, 2 B. & A. 746; Roberts v. Burker, 1 Cr. & M. 808; Clarke v. Roystone, 13 M. & W. 752. So where a brickfield was let at a yearly rent of 38. per 1,000 bricks made, it was held that evidence of a custom that a lease of brickland on those terms should operate as a longer tenancy than a yearly one, was inadmissible. In re Stroud, 8 C. B. 502. Yet the custom may still prevail, though the terms of the holding are inconsistent with it, if it only relates to the period of quitting. Holding v. Pigott, 7 Bing. 475. And even where there is an express stipulation respecting the quitting, it may not always be sufficient to exclude the custom. Thus, where the custom was for the tenant to be paid for the last year's ploughing and sowing, and to leave the manure if the landlord would buy it; and the lease provided that the tenant should spend more manure than the custom required, leaving the rest to be paid for by the landlord at the end of the term ; held that the tenant was still entitled to be paid for the last year's ploughing and sowing under the custom. Hutton v. Warren, 1 M. & W. 466. A custom to sell flints turned
up in the ordinary course of good husbandry for the tenant's benefit is not inconsistent with a reservation of minerals to the landlord. Tucker v. Linger, 8 Ap. Ca. 508, D. P. On the lease of a rabbit warren, oral evidence was admitted to show that by the custom of the county, the word “thousand” means 1,200 when applied to rabbits. Smith v. Wilson, 3 B. & Ad. 728. A contract for the sale of cider may be explained, by local usage, to mean apple juice before it has been made into cider in its usual form. Studdy v. Sanders, 5 B. & C. 628. A sale of hops“ at 100s.” may be explained to mean 5l. per cwt. Spicer v. Cooper, 1 Q. B. 424. A contract of hiring may be qualified by proof of customary holidays. R. v. Stoke-upon-Trent, 5 Q. B. 303.
Oral evidence, when admissible to explain words having a statutory meaning.] Certain weights and measures have been fixed by the Weights and Measures Act, 1878 (41 & 42 Vict. c. 49), which by sect. 19 provides that a contract made by any other measures than those defined by the Act is void. The earlier Acts under which Jones v. Giles, 11 Exch. 393, was decided did not contain this provision. The general rule is that where a statute has given a definite meaning to a word denoting quantity, evidence of custom is not admissible to show that it is used in a written contract in another sense. Smith v. Wilson, 3 B. & Ad. 728, 732, 733. See also Wing v. Earle, Cro. Eliz. 267; Noble v. Durell, 3 T. R. 271; Hockin v. Cooke, 4 T. R. 314; S. Cross, Master of, v. Ld. Howard de Walden, 6 T. R. 338.
A somewhat similar question arises upon the statute 24 Geo. 2, c. 23, which changes the style. In F'urley d. Mayor, dc., of Canterbury v. Wood, 1 Esp. 198, Runnington on Eject. 2nd ed. 129, it was held by Ld. Kenyon that evidence was admissible to show that by the custom of the country the word “Michaelmas,” in a notice to quit, meant “Old Michaelmas. It has been since assumed that this was a parol demise; but as the lands are stated to have been held by lease from a corporation, this was probably not so. In Doe d. Spicer v. Leu, 11 East, 312, however, it was held that evidence was rightly rejected when offered to show that “the feast of S. Michael,” in a lease under seal, meant Old Michaelmas. A few days afterwards, M‘Donald, C. B., held that a notice to quit at “ Michaelmas might be shown to mean • Old Michaelmas." Doe d. Hinde v. Vince, 2 Camp. 256: S. P. ruled by Ld. Ellenborough in Doe v. Brookes, at Hereford, same assizes, ut audivi. Id. 257, n. It does not appear whether the leases in these last two cases were by deed or parol. In Doe d. Hall v. Benson, 4 B. & A. 588, the distinction between leases under seal and those not so, was taken by the court, and it was held that on a parol demise it might be shown that “Lady Day” meant “Old Lady Day.” The cases of Doe d. Peters v. Hopkinson, 3 D. & Ry. 507; and Rogers v. Hull Dock Co., 34 L. J., Ch. 165, are to the same effect. In pleading, it was held that
Martinmas” must mean New Martinmas,” even though followed by the words “to wit, the 23rd of November,” which is the day on which Old Martinmas falls. Smith v. Walton, 8 Bing. 235. In many parts of the country the practice of letting lands, according to the old style, is still retained; and many text writers have expressed a general opinion that evidence of a custom of the country is always admissible to show that the feast day mentioned in the lease is referable to the old style, even though the lease be by deed. Vide tamen, 1 Smith’s L. Cases, 9th ed., 595, 596.
Oral evidence, when admissible to explain ancient charters, grants, &c.] Long user may serve to explain an ambiguous Act of Parliament. Stewart v. Lawton, 1 Bing. 377. In the construction of ancient charters, expressed in obscure or general terms, oral evidence has always been admitted to prove the continual and immemorial usage under the instrument. 2 Inst.
2; R. v. Varlo, Cowp. 248; Chad v. Tilsed, 2 B. & B. 406. Thus, in a Crown grant of “ tithes,” contemporaneous leases, proceedings in causes, and oral testimony, may be resorted to in order to show the species of tithes intended to be conveyed. Lucton School, Governors of, v. Scarlett, 2 Y. & J. 330. An ancient Crown grant of a seigniory or lordship, or of “terra de Gower,” may be shown by modern user to include the seashore between high and low water; Beaufort, Dk. of, v. Mayor of Suansca, 3 Exch, 413; see also Hastings, Corporation of, v. Ivall, L. R., 19 Eq. 558; although the grant from the Crown contains no appropriate words. Calmady v. Rowe, 6 C. B. 861. Where a private deed of 1656 gave the nomination of a curate to “inhabitants,” it was held that the word was properly explained by past usage to mean all housekeepers. Att.-Gen. v. Parker, 3 Atk. 576. So it was held that in an ancient charter, the word “ inhabitants” might be explained by local usage. R. v. Mashiter, 6 Ad. & E. 153, and this decision was recognized in R. v. Davie, Id., 374, 386, where the same word, in a charter of Edward VI., was explained by usage to mean inhabitants paying church and poor-rates. So where an old charter granted and confirmed certain port-duties, it may be shown by user that the grantee is also entitled to other immemorial port-duties not named in the charter. Bradley v. Newcastle, Pilots of, 2 E. & B. 427; 23 L. J., Q. B. 35, Ex. Ch.
There seems to be no distinction in this respect between charters and private deeds. Withnell v. Gartham, 6 T. R. 398. The words three acres of meadow,” in a surrender and admittance, may be confined by long user to the prima tonsura ; Stammers v. Diron, 7 East, 200; and pastura bosci may be explained by usage and later admittances to mean the soil and wood itself. Doe d. Kinglake v. Beviss, 7 C. B. 436. So evidence of usage is admissible to show what is comprehended in parcels described by words of a general nature or doubtful import. Waterpark, Ld. v. Fennell, 7 H. L. C. 650; Hastings, Corporation of, v. Ivall, supra. See also Forbes y. Watt, L. R., 2 H. L. Sc. 214.
But evidence of usage, however long, will not be admitted to overturn the clear words of a charter. R. v. Varlo, supra. And in the case of modern deeds evidence of the acts of the parties is not admissible to show their construction of it. Clifton v. Walmesley, 5 T. R. 565; Iggulden v, May, 9 Ves. 333; 2 N. R. 449, Ex. Ch. Even the conditions of sale, and the admissions of the grantee, are insufficient and inadmissible to narrow the operation of a deed of conveyance; Doe d. Norton v. Webster, 12 Ad. & E. 442; although we have seen that, in the absence of the deed, such ad