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understood among merchants to mean between the 25th and the end of October, whereas the ship sailed on the 11th. Chaurand v. Avgerstein, Peake, 43. Oral evidence may be given to explain the meaning of the word level in a mining lease ; Clayton v. Gregson, 5 Ad. & E. 302 ; and of the words

across the country” in a wager on a race. Evans v. Pratt, 3 M. & Gr. 759. In a contract for the purchase of “ 1,170 bales of gambier, it was held that it might be shown that by the usage of that trade a “bale” meant a compressed package, weighing about two cwt. Gorrissen v. Perrin, 2 C. B., N. S. 681 ; 27 L. J., C. P. 29. See also Taylor v. Briggs, 2 C. & P. 525. So where instructions were given by a principal residing out of England to his factor to sell corn, a custom in the London corn market to sell in the factor's own name is admissible to explain the instructions. Johnston v. Usborne, 11 Ad. & E. 549. On a sale of goods by a manufacturer who is not a dealer, evidence is admissible of a custom in the particular trade to deliver goods of another manufacturer. Johnson v. Raylton, 7 Q. B. D. 438, C.A. A sale of tobacco may be explained to be a sale by sample by the general usage of the trade, although the bought and sold notes are silent as to sample. Syers v. Jonas, 2 Exch. 111. So an engagement by a public singer for three years may be explained to mean three theatrical seasons. Grant v. Maddox,: 15 M. & W. 737. In an action by a shipowner on a contract to pay freight at a certain rate per lb., defendant was allowed to show a custom of the trade at a particular port to allow three months' discount on freights on goods coming from certain ports. Brown v. Byrne, 3 E. & B. 703; 23 L. J., Q. B. 313. “ After arrival" at a named island may be explained to mean after arrival at a place at sea some miles off the usual port, if it be a place of ordinary anchorage ; and this is a question for the jury. Lindsay v. Janson, 4 H. & N. 699 ; 28 L. J., Ex. 315. Where by a charterparty the shipowner agreed to consign the ship to A. B., at Calcutta “ on the usual and customary terms,” a custom may be proved for consignee to procure the homeward freight on commission; Robertson v. Wait, 8 Exch. 299; 22 L. J., Ex. 209; but where the charter provides that the consignment is to be “ free of commission,” and says nothing of usual terms, the charterer cannot set up such custom by oral evidence in an action against the shipowner for not allowing the consignee to procure the homeward freight. Phillipps v. Briard, 1 H. & N.21 ; 25 L. J., Ex. 233. “A full and complete cargo of sugar” may be explained to mean full and complete according to the customary mode of packing and loading sugar at the port where it is loaded. Cuthbert v.. Cumming, 11 Exch. 405; 24. L. J., Ex. 310, Ex. Ch. So "regular turns of loading” or “ in turns to deliver,” may be explained by local usage. Leidemann v. Schultz, 14 C. B. 318 ; 23 L. J., C. P. 17; Robertson v. Jackson, 2 C. B. 412. So the custom of the port as to when lay days commence. Norden Steam Co. v. Dempsey, 1 C. P. D. 654. “Fifty tons best palm oil, with a fair allowance for inferior oil, if any,” may be explained to be satisfied by the delivery of 50 tons, of which the greater part is inferior. Lucas v. Bristow, E. B. & E. 907 ; 27 L. J., Q. B. 364. A contract in writing to do stone and brickwork at the rate of “3s. per superficial yard of work 9 inches thick, and finding all materials, deducting all lights," was held not to exclude a custom in the trade to reduce all brickwork for the purpose of measurement to 9 inches in thickness. Symonds v. Floyd, 6 C. B., N. S. 691. So a contract to do certain work and to deliver “a weekly account of work done” was held not inconsistent with a usage in the building trade, that this clause related not to all the work contracted to be done, but to that part only which was of a particular kind. Myers v. Sarl, 3 E. & E. 306; 30 L. J., Q. B. 9. Where there was a written contract for the sale of shares at a certain price, “for payment half in two, half in four months,” it was held, that evidence was admissible that the Oral Evidence-when admissible.

23 seller was by usage not bound to deliver the shares until the appointed time for payment unless the buyer chose to pay for them earlier. Field v. Lelean, 6 H. & N. 627 ; 30 L. J., Ex. 168, Ex. Ch. See the case of Spartali v. Benecke, post, p: 24, and observations thereon. The usage of a particular port, that the underwriters are not liable for general average in respect of the jettison of timber stowed on the deck can be annexed to a policy making the underwriter liable for general average without restriction, Miller v. Tetherington, 6 H. & N. 278 ; 30 L. J., Ex. 217; 7 H. & N. 954 ; 31 L. J., Ex. 363, Ex. Ch. By a bill of lading of wool freight was to be paid " at the rate of 80s. per ton of 20 cwt. gross weight, tallow and other goods, grain or seed, in proportion as per London Baltic printed rates; evidence was admitted to show that by the usage of the trade this meant that 80s. 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, 13 C. 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 ; Alexander 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., 9C. 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 post, Action for wrongful dismissal.

With reference to the evidence necessary to support an alleged usage, it was said in Ghose v. Manickchund, 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 yrowth ; it may require evidence for its support in each 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, pér Willes, J. ; Focall v. International Land Credit Co., 16 L. T., N. S., 637, cor. Byles, Í.

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. Wickham, 3 B. & S. 669 ; 33 L. J., Q. B. 17; Clapham v. 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 the 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 breast of the judge. 1 Smith, L. Cases, 7th ed., p. 610; 8th ed.

case; but

p. 610. 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 lisage has been judicially ascertained and established it becomes part of the law merchant which courts of justice 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. 8th ed., pp. 606-8. 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 v. 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. X. 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. Erchange 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 I.. 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 Phillipps v. Briard, 1 H. & N. 21 ; 25 L. J., Ex. 233; ante, p. 22. 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

Oral Evidencewhen admissible.


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. Huomfrey 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. 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. Where a charterparty was signed by the defendants, “as agents for merchants,” evidence of a custom was admitted, to show that the defendants were liable on the charterparty as principals, if their principal's name was not disclosed within a reasonable time. Hutchinson v. Tatham, L. R., 8 C. P. 482. The distinction between these latter cases and Trueman v. Loder, supra, 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.

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, 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. Liringston, L. R., 2 Q. B. 99, 107 (affirm. L. R. 5 H. L. 395, on another ground); Bayliffe v. Butterworth, 1 Exch. 425; 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 knew of the usage or not, Grissell v. Bristowe, L. R., 4 C. P. 49; provided the custom regulate the mode of performing the contract only, and do not 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 v. 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 away-going crop, though it be not mentioned in the deed. Wigglesworth v. Dallison, i Doug. 201 ; Senior v. Armytage, Holt, N. P. 197. But where a covenant

« The cases

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. Barker, 1° Cr. & M. 808 ; Clarke v. Roystone, 13 M. & W. 752. So where a brickfield was let at a yearly rent of 3s. per 1,000 bricks made, it was held that evidence of a custom that a lease of brick. land on those ternis 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. Hoiding 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. IVarren, 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 cut. 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 Furley d. Mayor, &c., 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

In Doe d. Spicer v. Lea, 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

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

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