interpret one thousand to mean one hundred dozen, or twelve hundred. (m) And so usage has been permitted to show, that the word "bale" means, in a certain trade, not an ordinary bale, but a package of a peculiar description. (n)

Custom and usage are very often spoken of as if they were the same thing. But this is a mistake. Custom is the thing to be proved, and usage is the evidence of the custom. (0) Whether a custom exists is a question of fact. (p) But in the proof of this fact questions of law of two kinds may arise. One, whether the evidence is admissible, which is to be settled by the common principles of the law of evidence. The other, whether the facts stated are legally sufficient to prove a custom. If one man testified that he had done a certain thing once, and had heard that his neighbor had done it once, this evidence would not be given to the jury for them to draw from it the inference of custom if they saw fit, because it would be legally insufficient. But if many men testified to a uniform usage within their knowledge, and were uncontradicted, the court would say whether this usage was sufficient in quantity and quality to establish a custom, and if they deemed it to be so,

(m) See ante, p. 539, n. (h). (n) Gorrissen v. Perrin, 2 C. B. N. s. 681. See also, Jones v. Clarke, 2 H. & N. 725.

(0) Per Bagley, J., in Kead v. Rann, 10 B. & C. 440.

(p) The custom must be established by the evidence of witnesses who speak directly to the fact of the existence of the custom. In Lewis v. Marshall, 7 Man. & G. 729, evidence was offered to show that the terms 66 cargo" " and "freight" would be considered to comprise steerage passengers and the net profit arising from their passage-money. Tindal, C. J., said: "The character and description of evidence admissible for that purpose, is the fact of a general usage and practice prevailing in the particular trade or business, not the judgment or opinion of the witnesses; for the contract may be safely and correctly interpreted with reference to the fact of usage; as it may be presumed that such fact is known to the contracting parties, and that they contract in conformity thereto. But the judgment or opinion of the witnesses called, affords no safe guide for interpretation, as such judgment or

opinion is confined to their own knowledge." "The custom of merchants or mercantile usage does not depend upon the private opinions of merchants as to what the law is, or even upon their opin ions publicly expressed—but upon their acts." Per Walworth, Ch., in Allen v. Merchants Bank, 22 Wend. 222. Seo Edie v. East India Co. 2 Burr. 1228; Syers v. Bridge, Doug. 527, 530; Crofts v. Marshall, 7 C. & P. 597; Winthrop v. Union Ins. Co. 2 Wash. C. C. 7; Rogers v. Mechanics Ins. Co. 1 Story, 603, 607. Although a witness testifies generally to the fact of the usage, yet if he is unable to state a particular instance of the observance of the usage, his evidence should be rejected. Per Lord Mansfield, in Syers v. Bridge, Doug. 530; 1 Duer on Ins. 183. See Vail v. Rice, 1 Seld. 155. On the other hand, particular instances in which a certain meaning has been given to certain words, or a certain course followed, are of no avail in establishing a custom, when unaccompanied by evidence direct to the fact of usage. Čope v. Dodd, 13 Penn. St. 33; Duvall v. Farmers Bank of Maryland, 9 Gill & J 31

would instruct the jury, that, if they believed the witnesses, the custom was proved. The cases on this subject are numerous. But no definite rule as to the proof of custom can be drawn from them, other than that derivable from the reason on which the legal operation of custom rests; namely, that the parties must be supposed to have contracted with reference to it.

As a general rule, the knowledge of a custom must be brought home to a party who is to be affected by it. But if it be shown that the custom is ancient, very general and well known, it will often be a presumption of law that the party had knowledge of it; (q) although if the custom appeared to be more recent, and ess generally known, it might be necessary to establish by independent proof the knowledge of this custom by the party. (r) And one of the most common grounds for inferring knowledge in the parties, is the fact of their previous similar dealings with each other. (8) The custom might be so perfectly ascertained

(g) Where a custom is found to be gencral and notorious, and to have the other requisites of a valid custom, it is a conclusion of law that the parties must have contracted with reference to it, and their knowledge is conclusively presumed. In Clayton v. Gregson, 5 A. & E. 302, an arbitrator found, that according to the custom and understanding of miners throughout a certain district, the words "level," "deeper than," and "below," in a lease, had certain meanings, which were in favor of one of the parties to the suit. Some of the parties to the lease did not live within the district. Held, that the existence of the custom stated, within such district, did not raise a conclusion of law that the covenanting parties used the terms according to such custom, but was only evidence from which a jury might draw that conclusion. Littledale, J., said: "If the arbitrator had followed the words of the order, and found that the word 'level' (which is capable of many different meanings), meant, according to the custom and understanding of miners' so and so; judgment might have been given for the defendant; there would have been a result in law in his favor. But the finding is limited to a particular district; which is as much as to say that the word which has a particular signification in this district may mean differently in others; and if that be so, it cannot follow as an infer

ence of law, that in the present contract it was used in the sense pointed out. It ought therefore to be shown as a matter of fact, that the parties so used it." See also, Stevens v. Reeves, 9 Pick. 198; Hinton v. Locke, 5 Hill, 439; 1 Duer on Ins. 277. But see Winsor v. Dillaway, 4 Met. 221.

(r) Clayton v. Gregson, 5 A. & E. 302; Scott r. Irving, 1 B. & Ad. 605; Stevens v. Reeves, 9 Pick. 198; Stewart v. Aber dein, 4 M. & W. 211.

(s) As that one of the parties was accustomed to effect insurance at a certain place or with a certain company. Gabay v Lloyd, 3 B. & C. 793; Bartlett v. Pentland, 10 B. & C. 760; Palmer v. Blackburn, 1 Bing. 61. Or that parties were accustomed to transact business at a certain bank. Bridgeport Bank v. Dyer, 19 Conn. 136. Or that the parties reside at the place where the usage exists. Bartlett v. Pentland, 10 B. & C. 760; Clayton v. Gregson, 5 A. & E. 303; Stevens v. Reeves, 9 Pick. 198. Evidence may be given of former transactions between the same parties for the purpose of explaining the meaning of the terms used in a written contract. Bourne v. Gatliff, 11 Clark & F. 45, 70. But see Ford v. Yates, 2 Man. & G. 549, where evidence was rejected, that by the usual course of dealing between the parties, hops were sold on a credit of six months. The written contract was si

and universal, that the party's actual ignorance could not be given in proof, nor assist him in resisting a custom. If one sold goods, and the buyer being sued for the price, defended on the ground of a custom of three months' credit, the jury might be instructed that the defence was not made out, unless they could not only infer from the evidence the existence of the custom, but a knowledge of it by the plaintiff. But if the buyer had given a negotiable note at three months, no ignorance of the seller would enable him to demand payment without grace, even where the days of grace were not given by statute. such a case, the reason of the law of custom · - that the parties contracted with reference to it seems to be lost sight of But in fact the custom in such a case has the force of law; (t) an ignorance of which cannot be supposed, and if it be proved, it neither excuses any one, nor enlarges his rights.

In

No custom can be proved, or permitted to influence the construction of a contract, or vary the rights of parties, if the custom itself be illegal. For this would be to permit parties to break the law because others had broken it; and then to found their rights upon their own wrong-doing. (u)

Neither would courts sanction a custom, by permitting its operation upon the rights of parties, which was in itself wholly unreasonable. (v) In relation to a law, properly enacted, this

lent upon the subject. Previous dealings of parties are admissible, to give a more extended lien than that given by the common law. Rushforth v. Hadfield, 7 East, 224. See Loring v. Gurney, 5 Pick. 15.

(t) It may, however, be superseded by a custom allowing four days grace. Mills v. Bank of United States, 11 Wheat. 431; Cookenderfer v. Preston, 4 How. 317.

(u) See 1 Duer on Ins. 272. Also Wallace v. Fouche, 27 Miss. 266.

(v) A usage among the owners of vessels at particular ports, to pay bills drawn by masters for supplies furnished to their vessels in foreign ports, cannot bind them as acceptors of such bills. "A usage, to be legal, must be reasonable as well as convenient; and that usage cannot be reasonable which puts at hazard the property of the owners at the pleasure of the master, by making them responsible as acceptors on bills drawn by him, and which have been negotiated on the asVOL. II.

35

sumption that the funds were needed for supplies or repairs; and no evil can flow from rejecting such a usage." Per Hubbard, J., in Bowen v. Stoddard, 10 Met 375. So a usage among plasterers, to charge half the size of the windows at the price agreed on for work and materials, is unreasonable and void. Jordan v. Meredith, 3 Yeates, 318. See also, Thomas v. Graves, 1 Const. R. 308; Spear v. Newell, cited in Burton v. Blin, 23 Vt. 159; Bryant v. Commonwealth Ins. Co. 6 Pick. 131. For instances in which usages have been held reasonable, see Clark v. Baker, 11 Met. 186; Thomas v. O'Hara, 1 Const. R. 303; Williams v. Gilman, 3 Greenl 276; Bridgeport Bank v. Dyer, 19 Conn. 136; Connor v. Robinson, 2 Hill, S. C. 354; Cuthbert v. Cumming, 11 Exch. 405, 30 Eng. L. & Eq. 604. Whether a usage is reasonable would seem to be a question of law. 1 Duer on Ins. 269. See remarks of Tindal, C. J, in Bottomley v. Forbes, 5

inquiry cannot be made in a country where the judicial and the legislative powers are properly separated. But in reference to custom, which is a quasi law, and has often the effect of law, but has not its obligatory power over the court, the character of the custom will be considered, and if it be altogether foolish, or mischievous, the court will not regard it; and if a contract exist which only such a custom can give effect to, the contract itself will be declared void.

Lastly, it must be remembered that no custom, however unversal, or old, or known, unless it has actually passed into law, has any force over parties against their will. Hence, in the interpretation of contracts, it is an established rule, that no custom can be admitted which the parties have seen fit expressly to exclude. (w) Thus, to refer again to the custom of allowing grace on bills, and notes on time, there is no doubt that the parties may agree to waive this; and even the statutes which have made this custom law permit this waiver. And not only is a custom inadmissible which the parties have expressly excluded, but it is equally so if the parties have excluded it by a necessary implication; as by providing that the thing which the custom affects shall be done in a different way. For a custom can no more be set up against the clear intention of the parties than against their express agreement; and no usage can be incorporated into a contract, which is inconsistent with the terms of the contract. (x)

Bing. (N. C.), 127. And see Bowen v. Stoddard, 10 Met. 375. The question of the reasonableness of a usage was left to the jury by Lord Eldon, in Ougier v. Jennings, 1 Camp. 505, note (a).

(w) Knox v. The Ninetta, Crabbe, 534. See infra, n. (x).

(x) In the case of the schooner Reeside, 2 Sumner, 567, it was attempted to vary the common bill of lading, by which goods were to be delivered in good order and condition, the danger of the seas only excepted, by establishing a custom, that the owners of packet vessels between New York and Boston should be liable only for damage to goods occasioned by their own neglect. But, per Story, J., "the true and appropriate office of a usage or custom is, to interpret the otherwise in

determinate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character. It may also be admitted to ascertain the true meaning of a particular word, or of particular words in a given instrument, when the word or words have various senses, some common, some qualified, and some technical, according to the subject-matter to which they are applied. But I apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and a fortiori, not in order to contradict them. An express contract of the parties is always admissible, to supersede, or vary, or

Where the terms of a contract are plain, usage, even under that very contract, cannot be permitted to affect materially the construction to be placed upon it; but when it is ambiguous, usage for a long time may influence the judgment of the court, by showing how it was understood by the original parties to it. (y)

SECTION X.

OF THE ADMISSIBILITY OF EXTRINSIC EVIDENCE IN THE INTERPRETATION OF WRITTEN CONTRACTS.

It is very common for parties to offer evidence external to the contract, in aid, of the interpretation of its language. The