where such compensation has been fixed by contract under which the agent has continued to act for a considerable length of time. Stagg v. Insurance Co., 10 Wall., 589.

§ 18. If a custom be inconsistent with the contract it cannot be received in evidence. Barnard v. Kellogg, 10 Wall., 383.

§ 19. Where the intent of parties is clear, evidence of a usage to the contrary is immaterial. National Bank v. Burkhardt, 10 Otto, 686.

§ 20. In a suit upon a contract for the sale of flour, deliverable at seller's option at a fixed price, evidence of a usage in that community among the dealers in flour to demand a deposit of money or margin, and rescind the contract if such demand should be refused, is not admissible to add to or engraft upon the contract new stipulations nor to contradict those which are plain. Oelricks v. Ford, 23 How., 49.

§21. In mercantile contracts it is competent to explain what is ambiguous, and to introduce what is omitted, because sanctioned by usage, yet it is not competent to vary or contradict the terms of the contract. Garrison v. The Memphis Ins. Co., 19 How., 312.

§ 22. If the terms of a contract are technical or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade is admissible to explain the meaning. Salmon Falls Mfg. Co. v. Goddard, 14 How., 446.

§ 23. Held, that evidence is not admissible to vary the common bill of lading, by which goods were to be delivered in good order and condition, the dangers of the sea 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. The Schooner Reeside, 2 Sumn., 567.

§ 24. A usage or custom will be admitted to ascertain the nature and extent of contracts, not arising from express stipulations, but from implications, presumptions, and acts of an equivocal character; or to ascertain the true meaning of particular words in a given instrument when these words have various senses. But it will not be admitted to control, vary or contradict a written and express contract. Ibid.

§ 25. A usage or custom of trade may always be waived by, and cannot vary, the positive stipulations of a contract. Knox v. The Schooner Ninetta, Crabbe, 534.

§ 26. Evidence of a local custom is admissible in order to ascertain the understanding of parties with respect to their contracts, made with reference to it. Renner v. Bank of Columbia, 9 Wheat., 581.

§ 27. A usage cannot be incorporated into a contract if inconsistent with the terms of the contract; or in other words, where the terms of a contract are plain, usage cannot be permitted to affect materially the construction to be placed upon it; but when the terms are ambiguous, usage may influence the judgment of the court in ascertaining what the parties meant when they employed those terms. Moran v. Prather, 23 Wall., 492.

§ 28. Where the destination of a vessel is specifically fixed by the bill of lading, which also contains a clause providing for demurrage at a certain fixed sum per day "after four days," such contract cannot be controlled or varied by evidence that, by usage, the clause meant that they should only be entitled to demurrage if detained beyond the four days after having obtained a berth. Philadelphia & Reading R. Co. v. Northam, 2 Ben., 1.

§ 29. There are two classes of cases in which parol evidence of usage is admissible to affect a written contract: 1. Where the evidence is offered to prove that the words in which the contract is expressed in the particular trade to which the contract refers are used in a peculiar sense, and different from what they ordinarily import. 2. For the purpose of annexing incidents to the contract in matters upon which the contract is silent. The rule in both cases is, however, subject to the limitation or qualification that the peculiar sense or meaning which it is proposed by the evidence to attach to the words of the contract must not vary or contradict, either expressly or by implication, the terms of the written instrument. The evidence must be admitted, if at all, for the purpose of giving effect as far as can be done to the presumed intention of the parties. Hearn v. New England Mutual Marine Ins. Co., 3 Cliff., 318.

§ 30. Evidence of a usage which would vary a written contract is not admissible. A cargo was shipped under a bill of lading which contained the following: "With shipper's reconsignment option." It further provided for payment of demurrage "if the cargo be not received within four working days after notice of arrival." Upon arriving at his destination the delivery of the cargo was delayed by the attempts of the consignee to compel the master to proceed to another port to deliver the cargo. Upon suit by the master against the consignee for demurrage, held, in accordance with the above principle, that evidence of a usage allowing the consignee as well as the shipper to exercise the option mentioned in the bill of lading was inadmissible. McGovern v. Heissenbuttel, 8 Ben., 46.

§ 31. The plaintiff, as agent for the defendant in St. Louis, served under a letter from the

company to him which stated: "Your status is this: You are working up a business for yourself, and are to be paid the highest commissions we pay to any agent." To which the plaintiff assented. Plaintiff having been discharged brought suit to recover commissions, or commuted value thereof, for renewals of policies after he ceased to be the agent. Held, that the whole sentence must be taken together, and that the plaintiff could not introduce the parol testimony of insurance men or agents to show that the words "working up a business for yourself" (separating them from the rest of the connected sentence) had a peculiar meaning, and meant that he should be entitled to continuing or future commissions after he had ceased to be agent, and that there was a usage among other life insurance companies in St. Louis to allow continuing or future commissions in that manner, such usage being wholly inconsistent with the special contract entered into between the plaintiff and defendant, besides not having been shown to be known to the defendant which, was a foreign corporation. Partridge v. Life Ins. Co., 1 Dill., 139.

§ 32. An insurance agent working for fixed commissions wrote to the company employing him, other agents having been sent into his territory, inquiring what his status was. The company replied: "Concerning your status in Missouri, it is simply this: You are there working up a business for yourself, and are paid the highest commissions which we pay.” To which the agent assented. The agent having been discharged from the employ of the company, brought suit against the latter, and offered to prove by witnesses that the above phrase used by the company had a peculiar meaning as used and understood by men engaged in the business of life insurance, and that by virtue of a general usage in regard to the business of life insurance companies and their agents he was entitled to retain the agency, and in case of his removal against his will, and without sufficient cause, was entitled to be paid a commutation equal to the present value of his commissions computed by the actual rule for computing the present value of policies. Held, that to admit the testimony in support of the usage would have been to establish a new and distinct term to the contract, and that a custom or usage could not be allowed to have that effect. Partridge v. The Insurance Co., 15 Wall., 573.

§ 33. Settled rules of law cannot be controverted by. Where the law upon a particular subject is settled, proof of a contrary usage cannot be admitted, such evidence being allowed in doubtful cases. Brown v. Jackson, 2 Wash., 24.

§ 34. A custom cannot be set up against a settled rule, nor can it ever be binding unless it be ancient, reasonable, generally known and certain. United States v. Buchanan, 8 How., 83. § 35. A custom in derogation of a statute is invalid. Hence congress having passed an act relieving ship-owners from liability for losses by fire occasioned solely by negligence of their officers or agents without participation on their part, a local custom that ship-owners shall be liable in such cases can have no effect. Walker v. Transportation Co., 3 Wall., 150.

§ 36. Custom cannot be allowed to subvert the settled rules of law. Barnard v. Kellogg, 10 Wall., 383.

§ 37. The rule laid down in Barnard v. Adams, 10 How., 270, that the ship-owner is entitled to a commission upon the amount contributed for in general average, is not founded on a local usage, but upon the law merchant; and a particular local usage in contravention thereof is not binding on those who have entered into no contract with reference to such usage. Sturgis v. Cary, 2 Curt., 382.

§ 38. A common carrier received a case of glass for shipment and gave the drayman of the shipper a receipt in which was inserted "Not responsible for contents." In action by the shipper against the carrier for damages caused by the negligent breaking of the glass while in the possession of the latter, held, that the carrier could not set up a custom "not to sign for looking-glasses" unless the words "not responsible for contents" were inserted in the receipt, and thus by custom avoid a common-law liability. The Pacific, Deady, 17.

39. Evidence of a usage contrary to law or inconsistent with the contract is not admissible to control the general rules of law or the intent and meaning of the parties. Thompson v. Riggs, 5 Wall., 663.

§ 40. The general rule of law being that if a merchant deposits money with a bank the title thereto passes to the bank and the bank becomes the debtor of the merchant to that amount, evidence of a usage or custom controlling such general rule of law is not admissible. Ibid. $41. Evidence of general usage is never admissible to contradict the settled rules of law. Hearn v. New England Mutual Marine Ins. Co., 3 Cliff., 318.

§42. A custom is obligatory on the parties only when the law does not provide for the case. Hence where a grant of a bounty to vessels qualified by law to carry on the cod fisheries is given on the express condition that five-eighths shall go to the fishermen, the fishermen cannot waive their rights, even if they choose so to do, without the consent of the United States, nor can they be precluded from questioning a settlement in which they were not allowed their

share of the bounty by any custom on the part of seamen to settle without receiving the bounty. The Lucy Anne, 13 Law Rep. (N. S.), 545; 3 Ware, 253.

§ 43. Where a purchaser examines a few of the bales of a lot of wool, and having the privilege of examining the balance of the bales declines to do so, it is not a sale by sample, and in the absence of express warranty the rule caveat emptor applies. And where in such case the wool has been deceitfully packed, rotten and damaged wool being concealed in the center of the bales, all of which is unknown to the vendor, proofs cannot be received to control the rule that by the custom of wool merchants there is a warranty by the seller, implied from the fact of sale, that the wool is not falsely packed, especially where the parties did not know of the custom. Barnard v. Kellogg, 10 Wall., 383.

§ 44. There seems to be a growing disposition on the part of the courts to reject local usages when they tend to control or vary an explicit contract or a fixed rule of law. Swift v. Gifford, 2 Low., 110.

§ 45. But in the application of these general views it will be found difficult to ascertain what is considered a principle of law that cannot be interfered with. Principles of law differ in their importance as well as in their origin, and while some of them represent great rules of policy and are beyond the reach of contravention, others may be changed by parties who choose to contract upon a different footing; and some of them may be varied by usage, which, if general and long established, is equivalent to a contract. Ibid.

§ 46. Person must have knowledge to be bound by.

The rules and regulations of the New York cotton exchange can have no effect as a usage or custom upon the legal rights of a contracting party who had no knowledge of such rules and hence never acquiesced in their application to his contract. Blakemore v. Heyman,* 6 Fed. R., 581.

§ 47. A general usage among ship-owners and underwriters in relation to the settlement of average losses, if known to the parties, becomes part of the contract, and binds the parties. Sanderson v. The Columbian Ins. Co., 2 Cr. C. C., 218.

§ 48. When A. employs B. to compile a text-book, and gives him some suggestions as to its character and form, and agrees to pay him $500, and B. conveys to A. the copyright and it is published by A., calling B. the author on the title-page, it was held that only the usual copyright for fourteen years passes under the contract; the author, being alive at the end thereof, has the sole interest in the additional term then allowed to authors in such cases. A usage among booksellers to consider the second term as passing with the first does not control the rights of B., who was not a bookseller, nor shown to be conversant with such usage. Pierpont v. Fowle, 2 Woodb. & M., 23.

§ 49. Where the question whether a deposit of a check was absolute or only on condition depends upon a local usage on the part of bankers to have the receiving tellers enter checks in the pass-book as they come in, subject to a return of the checks to the depositors, if in the afternoon of the day when the accounts are examined they are not found to be good, it is essential that proof shall be made that the depositor knew the usage, otherwise he is not bound by it. National Bank v. Burkhardt, 10 Otto, 686.

§ 50. A mining stock-broker who was in the habit of receiving orders daily for stock adopted the practice of sending several orders to San Francisco in one telegram, the whole being thus sent at an expense of seventy-five cents, the price of a single telegram, however short. In settling with his customers he always charged seventy cents for each order sent. In suit upon account between the broker and a customer the former defended his method of charging for telegrams on the ground of usage. Held, that a custom or usage like this, of charging customers in addition to commissions, not merely the actual cost of telegrams, but an arbitrary sum ordinarily much more than the actual cost, if it can be considered reasonable, ought to be established by very satisfactory proof, and it should also appear that both parties had knowledge of it. Marye v. Strouse, 6 Saw., 204; 5 Fed. R., 494.

$51.

assigne› of contract.— A usage, although long continued, between the consignor and a common carrier, to allow the freight to be delivered in a peculiar manner, contrary to the contract, will not affect an assignee of the bill of lading who had no knowledge of such custom or usage. The assignee in such case has a right to demand the delivery of the freight according to the terms of the contract. Myrick v. Michigan Central R. Co., 9 Biss., 44.

§ 52. Proof of in general.- The testimony of experts is not admissible to prove that a rule of navigation, recognized by the general maritime law, does not exist in a particular locality. The Clement, 2 Curt., 363.

§ 53. The usage of trade may be proved by parol, although such usage originated in a law or edict of the government of the country. Livingston v. Maryland Ins. Co., 7 Cr., 506.

§ 54. Where a usage is fully proved it becomes a part of the law; and the court will decide on it as such without requiring it to be again proved. Consequa v. Willings, Pet. C. C., 225. § 55. Testimony of witnesses to the effect that they recognized and had acted upon a cus

tom in their own business; that they could not say such was the general custom; that different persons have different customs, is not sufficient to establish a usage or custom. Oelricks v. Ford, 23 How., 49.

§ 56. Where for the purpose of establishing two per cent. as the customary rate of interest, counsel asks: "Was that the usual rate of interest among brokers and bankers in Virginia?" to which witness replies: "I had to pay that rate myself," such answer does not even tend to prove a custom. Marye v. Strouse, 5 Fed. R., 494.

$57. A usage may be proved by a single witness if such witness have a full knowledge of, and a long experience concerning, the subject about which he speaks, and testify explicitly to the antiquity, duration and universality of the usage, and his testimony remain uncontradicted. Robinson v. United States, 13 Wall., 363.

§ 58. The mere repetition of a special contract, no matter how often, cannot create a usage. Thus the postoffice department having for a number of years contracted with parties underbidding prior mail carriers, so as to compel the successful bidder to buy the stock or vehicles of the previous contractor for the same route, held, that no usage was thereby established by which a party underbidding a prior contractor could be compelled, in the absence of an express contract to that effect, to buy the stock or vehicles of such prior contractor. Nye v. United States,* 22 Law Rep., 174. $ 59. of custom of a port.- A shipper having contracted with the agent of a ship for the transportation of a certain amount of logs sent the timber alongside in lighters for the purpose of loading. The lighters having been detained alongside several days by reason of the great size and weight of the timber and the smallness of the ship's hatches, the shipper filed a libel against the ship for the amount of the demurrage of the lighters, claiming that by the custom of the port of New York only two days were allowed for the receiving of a cargo from the lighters. Held, that the custom could not be established by evidence to the effect that the Produce Exchange had adopted a rule similar in effect; that no rule of such exchange could make a rule for the port. The Bark Innocenta, 10 Ben., 410.

§ 60. When presumed to have been incorporated into contract.- Parties who contract on a subject-matter, concerning which known usages prevail, by implication incorporate them into their agreements if nothing is said to the contrary. Robinson v. United States, 13 Wall., 363.

§ 61. Evidence of a usage to receive natives in Africa, temporarily on board of a vessel, and to leave them at convenient ports in the course of the voyage, paying them for their services at the discretion of the master, is admissible to determine the extent of the liability of the owner of a vessel when sued for wages by such a native employed on board the vessel. Sunday v. Gordon, Bl. & How., 569.

§ 62. To establish a local custom derogating from the general law, it is not enough to prove that the act was frequently done. It must be shown to be so generally known and recognized that a fair presumption arises that the parties, in entering into their engagement, do it with a silent reference to the custom, and tacitly agree that their rights and responsibilities shall be determined by it. The Paragon, 1 Ware, 322.

§ 63. Every demise between landlord and tenant in respect to matters in which the parties are silent may be fairly open to explanation by the general usage and custom of the country, or of the district where the land lies. Every person, under such circumstances, is supposed to be conusant of this custom, and to contract with a tacit reference to it. Van Ness v. Pacard, 2 Pet., 137.

§ 64. Contract cannot be wholly established by.- Proof of usage may be received to show the intention of the parties in the absence of a special agreement, or to explain the terms of a written agreement; but where there is no contract, express or implied, the custom of a profession cannot be introduced in proof to make one. Tilley v. County of Cook, 13 Otto, 155. $ 65. Where there is no contract proof of usage will not make one. Hence where A. employs B., an attorney at law, to examine and report on his title to a certain lot of ground, and B. certifies in writing over his signature that A.'s title is good and unincumbered, whereupon C., relying upon the certificate, loans money to A., taking as security therefor a deed of trust for the lot, there being no contract or communication between C. and B., held, that, in the event of A.'s insolvency, there was no liability on the part of B., although at the time he made his examination A. had parted with the fee to the lot by a conveyance duly recorded, and that evidence of local usage in the district that the attorney examining the title of such an applicant for a loan shall be considered as also acting for the lender of the money was not admissible. Savings Bank v. Ward, 10 Otto, 195.

§ 66. Of merchants.— Usages among merchants should be sparingly adopted as rules of law by courts of justice, as they are often founded in mere mistake and in a want of comprehensive views of the full bearing of principles. Donnell v. Columbian Ins. Co., 2 Sumn., 366. § 67. A contract may be inferred from usage. The usage of merchants constitutes the law

of merchants; it is a rule of their own making and binds when no other law is applicable. Wilcocks v. Phillips, 1 Wall. Jr., 45.

§ 68. Where it was a custom in Philadelphia to sell merchandise on a credit of six months, and from that time to charge interest until payment, the jury was permitted to give interest after six months, as a part of the damages. Bispham v. Pollock, 1 McL., 411.

§ 69. Assuming that a foreign bill of exchange, payable after sight, ought to be presented within a reasonable time, that time must be judged of with reference to the usage among merchants as to delays in the negotiation and transmission of such bills. Wallace v. Agry, 5 Mason, 118. $ 70.

in filling orders.- A contract to fill orders for goods is subject to the custom of the manufacturers, when known to the party ordering, of filling such orders in proportion with others and in part only, the demand exceeding the supply. Bliven v. New England Screw Co., 23 How., 420.

§ 71. A customer had previously dealt with his vendor in accordance with a usage of which he was cognizant. The usage on the part of the vendor was, on receiving orders from customers, to file them away and fill them in turn in proportion to other orders on hand at the same time to be filled. Held, that such customer in a subsequent transaction, having been fairly dealt with the same as all other customers, had no ground of complaint unless he could establish some right superior to that arising out of the usage in filling the orders. The New England Screw Co. v. Bliven,* 4 Blatch., 97.

$ 72. Of banks.-The known custom of a bank and its ordinary modes of transacting business, including the prescribed forms of notes offered for discount, enters into the contract of those giving notes for the purpose of having them discounted at the bank; and the parties to the note must be understood as having agreed to govern themselves by such customs and modes of doing business; and this whether they had actual knowledge of them or not; and it was the special duty of all those dealing with the note to ascertain them, if unknown. Fowler v. Brantly, 14 Pet., 318.

§ 73. A bank which acts as a collecting agent for another cannot avoid its liability to its principal for losses sustained by reason of its negligence by citing a usage or custom in support of its negligent methods, unless such usage is uniform and common to banks in general. Trinidad National Bank v. Denver National Bank, 4 Dill., 290.

§ 74. It is not sufficient that such had always been the custom of the defendant, such custom not having been known to the plaintiff. Ibid.

§ 75. The officers of a bank are held out to the public as having authority to act according to the general usage, practice and course of their business, and their acts within the scope of such usage, practice and course of business would, in general, bind the bank in favor of third persons possessing no other knowledge. Minor v. Mechanics' Bank of Alexandria, 1 Pet., 46. § 76. A usage of banks, requiring only reasonable care and diligence of their tellers, cannot affect or control an express stipulation to indemnify a bank for damages arising from a "want of care" in that officer. Union Bank of Georgetown v. Forrest, 3 Cr. C. C., 218. § 77. The usage of the banks in the District of Columbia, to make a demand on the fourth day of grace, only applies to notes negotiated by the bank. Hill v. Norvell, 3 McL., 583. § 78. A party to a note discounted at a bank is not bound by the special and particular usage of such bank, unless upon his agreement, express or implied. Bank of Alexandria v. Deneale, 2 Cr. C. C., 488.

79. By the custom of the banks in the District of Columbia, payment of a promissory note is to be demanded on the fourth day after the time limited for the payment thereof, in order to charge the indorser, contrary to the general law merchant, which requires a demand on the third day. Renner v. Bank of Columbia, 9 Wheat., 581.

§ 80. Where a note is made payable at a particular bank, whose custom is to make demand and give notice on the fourth day of grace, the parties are bound by the custom whether they have personal knowledge of it or not. Mills v. Bank of United States, 11 Wheat., 431. § 81. It is a usage of the Bank of Washington, and of other banks in the District of Columbia, to demand payment of a bill on the day after the last day of grace; and the usage has been sanctioned by the decisions of the supreme court. This usage is equally binding on parties who were not acquainted with its existence, but who have resorted to the bank governed by such usage to make the bill negotiable. Bank of Washington v. Triplett, 1 Pet., 25.

§ 82. A special custom of the banks and merchants of the county of Washington, D. C., to demand payment on the day after the last day of grace, may be given in evidence without being averred in the declaration. Coyle v. Gozzler, 2 Cr. C. C., 625.

§ 83. Prior to the year 1818 it was the usage in the city of Washington, D. C., to allow four days of grace upon notes discounted by banks, and also upon notes merely deposited for collection. Since then, however, the usage has been changed as to notes deposited for collection, and been made to conform to the general law merchant, which allows only three days of