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$ 117. The usage or custom of a particular port in a particular trade is not such a usage or custom as will, in contemplation of law, limit, control or qualify the language of contracts of insurance. It must be some known general usage or custom in the trade, both applicable and applied to all ports of the state, and so notorious as to afford a presumption that all contracts of insurance in that trade are made with reference to it, as a part of the policy. Rogers v. Mechanics’ Ios. Co., 1 Story, 603.
$ 118. In construing a policy of insurance the usages of trade must be taken into consideration. Hancox v. Fishing Ins. Co., 3 Sumn., 132,
$ 119. Evidence of a usage to explaiu some clause in a contract of insurance is regular; but it can only be resorted to where the law is doubtful and unsettled; and even then the construction must be determined by the usage, and not by the opinions of the witnesses. Winthrop v. Union Ins. Co., 2 Wash., 7.
$ 120. The alleged custom, in Philadelphia, to strike off one-third of the gross freight for charges, and to pay two-thirds only to the assured, in a policy on freight, where a total loss has occurred, is unreasonable, and is in direct opposition to the terms of the policy. McGregor v. The Insurance Company of Philadelphia, 1 Wash., 39.
$ 121. Underwriters are bound to take notice of the course of trade; but it should appear that the course was so uniformly pursued as that it should have been known to the underwriters as well as to the insured. Martin v. The Delaware Ins. Co., 2 Wash., 254.
$ 122. Custom or usage cannot be resorted to to construe a contract susceptible of reasonable construction on its face. This rule is applicable to open or running policies of insurance; and where one of these policies requires that a vessel shall not be below a certain rate, “pot below A 2," the party assured may establish the vessel's rate by any kind of evidence, and evidence of a usage among insurers and shippers that in such policies the rating was to be determined by the rating of the vessel on the books of the insurers is not admissible. Iusur. ance Companies v. Wright, 1 Wall., 456.
$ 123, Plaintiff was appointed agent at C. for the defendant, and was to receive ten per cent. on the first premiums on policies procured by him, and five per cent. on renewal premiums as long as they continued in force. Having been discharged and thus deprived of the right of collecting the renewal premiums, he brought action for damages for breach of contract. Held, that for the purpose of explaining the above contract, evidence of a wellestablished custom among life insurance companies and their agents as to the kind and extent of the property that agents may possess in the lists of policies they procure was admissible. Ensworth v. New York Life Ins. Co., 1 Flip., 92.
$ 124. No evidence of any usage or custom can be admitted to explain, alter or impair the terms of a contract of insurance where such terms are clear and precise in themselves. Accordingly where the policy described the voyage to be made as “at and froni Liverpool to port in Cuba, and at and thence to port of advice and discbarge," and a deviation was made, held, that parol evidence showing that it was the custom and usage for vessels bound from Liverpool and back to discharge at one port and then proceed to a second port for a return cargo, was not admissible to avoid the effect of the deviation. Hearn v. New England Mutnal Marine Ins. Co., 3 Cliff., 318; Hearn v. Equitable Safety Ins. Co., 3 Cliff., 328; Hearne r. Marine Ins. Co., 20 Wall., 488.
$ 125. A power evidenced by a usage must be considered as defined and limited by the usage. Hence it is doubtful, even if it appeared that a usage prevailed among the banks in the city, other than the defendant bank, for the cashiers to certify checks upon them, whether it could be regarded as evidence that the cashier of the defendant bank had any such author. ity unless it appeared that the defendant bank had in some way, directly or indirectly, sanc• tioned the usage. Merchants’ National Bank v. State National Bank, 3 Cliff., 205.
$ 126. Customs unreasonable or unlawful invalid.- A usage for wharfingers to act as agents in accepting, on behalf of consignees, goods arriving at the several wharves would nit be a reasonable or lawful usage. It would be inconsistent with the nature of the employment, and would lead to too much confusion of rights to be tolerated. The Ship Middlesex,* 11 Law Rep. (N. S.), 14,
$ 127. An illegal practice among officers of the government to accept bills drawn on them in their official capacity by arıny contractors can never ripen into a usage which will be binư. ing upon the government, no matter how long continued or extensive. Peirce v. United States, * 1 Ct. Cl., 270.
§ 128. A custom to al low customers of a bank to overdraw is illegal and cannot be supported by any act or vote of the board of directors. A cashier allows overdrafts at his peril. Minor v, The Mechanics' Bank of Alexandria, 1 Pet., 46.
$ 129. When statute may be explained or repealed by.- No usage or custom can prevail against an express law of the law-making power. Winter v. United States. Hemp., 344. $ 130. Custom will not modify an act of congress. The Steamboat Forrester, Newb., 81.
$ 131. Legislative acts should be construed with reference to known usage. United States v. Bailey, 9 Pet., 238.
$ 132. Usage cannot alter the law, but it is evidence of construction given to law, and must be considered as binding on past transactions. United States v. Macdaniel, 7 Pet., 1.
133. A general statute may be expounded, when its words are doubtful, by reference to any general usage with reference to which the law may be supposed to have been enacted. Love v. Hinckley, Abb. Adm., 436.
S 134. It was not error for the court to instruct the jury that a will executed under Mexican laws in Ca.ifornia, before the acquisition of California by the United States, in the presence of only two witnesses, affords no sufficient proof of the execution; but that if they should be satisfied from the proofs in the case that a uniform and notorious custom existed uninterruptedly for the space of ten years in California, which authorized the execution of wills in the presence of two witnesses only, and which custom was so prevailing and notorious that the tacit assent to it of the authorities may be presumed, then the proof of such a custom and for such a length of time would operate as a repeal of the prior law, and that two witnesses would be sufficient. Adams v. Norris, 23 How., 353.
$ 135. Miscellaneous.— A bill of lading stipulated that the consignee should take the goods shipped as soon as the ship was ready to discharge. The ship arrived on Saturday and gave notice to the consignee that the goods would be discharged on Monday. The goods were placed upon the pier Monday morning, and, being left uncovered, were damaged by rain which fell in the afternoon. Held, that the fact that the consignee depended upon the general custom respecting permits from the customs department, believing that more time would be consumed after the vessel's arrival in preparing to deliver the goods than was actually necessary, did not excuse bis delay in preparing to receive the goods, and that for that reason the loss was his own. The Kate, 12 Fed. R., 881.
$ 136. The existence of a custom under which purchasers of vessels previously enrolled and licensed have awaited the expiration of the time limited in the license before obtaining a renewal of the same would not relieve such vessels from liability to the penalty provided by the enrolling act. The Steamboat Forrester, Newb., 81.
$ 137. It seems that a local usage cannot vary a rule of navigation. Wheeler v. The Steamer Eastern State, 2 Curt., 141.
$ 138. The defendant offered to prove, by parol testimony, the general usage of the different departments of the government, in allowing commissions to the officers of the govern. ment upon disbursements of money under a special authority pot connected with their regular official duties. The counsel of the United States objected to the admission of parol evidence to prove such usage, but the court permitted the evidence to be given. By the court: We see no grounds for objection against the usage offered to be proved, and the pur. pose for which it was so offered, as connected with the very terms upon which the defend. ant was employed to perform the services. It was not for the purpose of establishing the right, but to show the measure of compensation, and the manner in which it was to be paid. United Statrs v. Fillebrown, 7 Pet., 28.
$ 139. Whenever a cause of injury to a cargo lies very near the line which separates excusable perils of the seas from dangers for which carriers are responsible, regard is to be had to the custon of the trade in determiving whether it is to be classed with perils of the seas or not. Baxter v. Leland, Abb. Adm., 348.
$ 140. A vessel brought a cargo of fruit from Italy to New Orleans under a charter-party providing that she should be discharged with customary dispatch.” Held, that the use of the term " customary,” as distinguished from the term “ reasonable," enlarged the source of delay at the port of discharge, and made it include all those usages which the charterers could not control, such as the working hours, the order in which vessels must come up to the wharf, the observance of holidays, the allowance of three days to obtain berth, providing one could not be sooner obtained, but that it did not include any delay purely voluntary on the part of the charterers; that the charterers could not be allowed, notwithstanding opportunity, to decline to receive their fruit faster than they could sell it at the wharves, for the simple reason that it was more advantageous for them to do so, and that such was the custom of fruit dealers at that port. Lindsay v. Cusimano, 10 Fed. R., 302; 12 Fed. R., 503.
$ 141. A schooner driven into harbor by a gale of wind anchored, but was driven from her moorings towards the flats until brought up by her small anchor, when she lay head to the wind. Remaining in this position during the night with no one on board she was run foul of by another vessel. Held, that the collision was caused by the neglect of the schooner, potwithstanding a local usage to leave vessels owned and manned by persors residing in that place anchored in the harbor with no one on board. The Schooner Lion, 1 Spr., 40.
$ 142. A contract was entered into at St. Louis by which the plaintiff agreed to ship the defendant five hundred tons of "No. 1 Shott's Scotch pig-iron ” from Glascow"
as soon as
possible," and to deliver it in bond at New Orleans. The vendee having refused to accept the iron, held, in suit for damages brought by the vendor, 1, that the words “ as soon as possible” used in the contract required shipment as soon as possible by any of the ordinary modes of transportation, and that proof of a custom of merchants to ship by sail, unless specifically dil'ected to ship by steam, was not admissible; 2, that the quality of the iron could not be shown by proof of a custom of the foundry as to examining and marking. Pope v. Filley, 3 McC., 190.
$ 143. A custom on the part of other vessels to yield to a ferry-boat on its approach, and to slacken their warps to permit it to pass, must be presumed to be founded on the supposition that the ferry-boat was in the rightful use of the water, and will not protect an unlicensed ferry from liability for injuries sustained by reason of a collision with a vessel rightfully using the water. The Maverick, 1 Spr., 23; Harding v. Maverick, 5 Law Rep., 106.
$ 144. It is a custom of London that consignees having liens on cargoes consigned to them insure them against fire. If the custom is intended for the benefit of the consignor the consignee is bound to insure, and if he do not he stands insurer himself, and is entitled to the premium; aliter, if the custom be merely for the protection of the interests of the consignee. Kingston v. Wilson, 4 Wash., 310.
$ 145. A vessel was chartered to go to Pictou for a cargo of coal, to be conveyed to New York, lay days to be allowed at Pictou “as customary in loading,” and “the cargo to be received as customary.” There being no custom as to lay days proved, but a custom as to the order of vessels in taking their turn in loading, the parties were bound by such latter custom. Nichols v. Tremlett, 1 Spr., 361.
$ 146. By the laws and ordinances of Spain, and the regulations and usages of the province of Louisiana, the survey of an open concession or grant was necessary to give it locality and to perfect the title in the grantee, and without which private was not separated from public property; nor was the grant valid as against the government which made it, and hence not valid against the United States. Winter v. United States, Hemp., 344.
$ 147. The laws and usages of foreign countries where contracts are made and to be executed, which respect the validity, construction and performance of those contracts, are regarded here as rules of decision. Willings v. Consequa, Pet. C. C., 301.
$ 148. No change of usage, even by authority, can have a retrospective effect, and must be limited to the future. United States v. Buchanan, Crabbe, 563.
$ 149. Where an action of deceit is brought by a citizen of Great Britain for using the plaintiff's trade-marks on defendant's goods, and selling them as and for the plaintiff's, evidence of a usage abroad and in England to use such marks of others when aliens, with impunity, is not a competent defense to the jury, and such usage being a bad one, and not in existence here, cannot affect the law here. Taylor v. Carpenter, 2 Woodb. & M., 1.
$ 150. By the laws of Spain ” is to be understood the will of the king expressed in his orders, or by his authority, evidenced by the acts themselves; or by such usages and customs in the provinces as may be presumed to have emanated from the king, or to have been sanctioned by him, as existing local laws. Mitchell v. United States, 9 Pet., 711.
USE AND OCCUPATION.
USES AND TRUSTS.
(Seo DOMESTIC RELATIONS; ESTATES OF DECEDENTS.)
I. IN GENERAL, SS 1–52.
VIII. TRUSTEES, SS 345–447. II. CREATION AND DURATION, ES 53–84.
1. Rights, Powers and Duties, SS 345– III. INTERPRETATION AND VALIDITY, SS 85–
2. Liabilities, SS 398–422. IV. USES, SS 127-145.
3. Death. Discharge. Removal. New V. CHARITABLE USES, SS 146–216.
Appointment, SS 423-447.
I. IN GENERAL.
SUMMARY — Reformation of dead, $ 1.- Vendees chargeable with notice of trust, 8 2.- Trust
for benefit of husband and wife; bankruptcy of husband, 5 3.
§ 1. When it appears that land was purchased upon certain trusts, which by mistake were not declared in the deed, the deed will be reformed at the suit of the cestui que trust. Walden v. Skinner, SS 4-6.
$ 2. By an ante-nuptial contract land was conveyed to S. in trust for the benefit of the prospective wife and her children. It was further provided that the trustee could sell the lands conveyed and purchase other lands if he should deem that to be for the interest of the beneficiaries, which lands should be held on the same trusts. S. was indebled to V. on a decree of foreclosure on certain lands owned by him, and sold the trust lands, taking a satisfaction of his indebtedness to V. in part payment. The husband of the beneficiary sanctioned the arrangement and removed to lands owned by S., but which were not conveyed or charged with the trust, and finally removed from then, and no lands were ever actually purchased. Held, that the lands in the hands of V. were chargeable with the trust, as part of the purchase price went to pay an individual debt of S., and as he knew of the terms of the trust and was chargeable with notice that no other lands were purchased with the proceeds. Held, also, that grantees of V., who were chargeable with notice, also held the lands charged with the trust. Wormeley v. Wormeley, $$ 7–10.
$ 3. W. deposited with a trust company a sum of money in trust to pay the income tbereof, during the life of his son and his son's wife, to his son or his son's wife for their support, and the support and education of their children. Both principal and annuity were declared inalienable and not subject to the debts or control of the son or his wife. The son having become baukrupt, it was held that the son took as a sub-trustee, and that his assignee did not take any interest in the annuity, and that although he would have some benefit therefrom no aliquot part could be set apart for the use of the creditors. Durant v. Mass. Hospital Life Ins. Co., SS 11-13. [NOTES.— See SS 14–52.]
WALDEN V. SKINNER.
(11 Otto, 577–590. 1879.)
APPEAL from U. S. Circuit Court, Southern District of Georgia.
STATEMENT OF Facts.— Trusts are either express or implied, the former being such as are raised or created by the act of the parties, and the latter being such as are raised or created by presumption or construction of law. Cook v. Fountain, 3 Swanst., 585, 592. Implied trusts may also be divided into two general classes: First, those that rest upon the presumed intention of the parties. Secondly, those which are independent of any such express intentions, and are forced upon the conscience of the party by operation of law. 2 Story, Eq. Jur., sec. 1195.
Sufficient appears to show that Sarah S. Walden, the complainant, on the 6th day of May, 1874, filed her bill of complaint in the court below against the respondents, to wit, Darius S. Skinner and John N. Lewis and Charles S. Hardee, executors of Charles S. Henry, deceased, who in his life-time was the trustee of Penelope W. Tefft and her three children. Preliminary to the charging part of her complaint she alleges and states that on the 28th of October, 1847, she intermarried with William P. Tefft, who on the 9th of August, five years later, departed this life intestate and without children, leaving the complainant as his sole heir and legal representative; that on the 4th of June, six years subsequent to the death of her first husband, she intermarried with Charles C. Walden, who on the 8th day of December of the next year, departed this life testate, leaving no children by the complainant, and that he by his will bequeathed to her all the property and rights owned and possessed by her at the date of their marriage; and that the father of her first husband died intestate on the 30th of June, 1862, but that no administration was erer had upon his estate, and that his widow, the mother of her first husband, departed this life testate on the 11th of September, eleven years later; that ber first husband had two brothers at the date of her marriage, neither of whom ever married, and both of whom died without children; that at the death of the elder of the two he had a life policy of insurance for $5,000, which his administrator collected and paid to his two living brothers.
Allegations then follow in the bill of complaint which relate more immediately to the subject-matter of the controrersy, from which it appears that Elias Fort, June 28, 1831, conveyed a certain tract of land to Charles S. Henry and Stephen C. Greene, as trustees and in trust for Penelope W. Tefft and her three sons, William P. Tefft, Henry D. Tefft and Charles E. Tefft, and it is therein declared that the said property is for the use of the mother during her life-time and the three sons, and that after the death of the mother it shall be for the use of the three sons alone as tenants in common, and that in case of sale “the proceed to be re-invested upon the same uses and trusts as aforesaid, and if not sold, then the property after the death of the mother was to be distributed by said trustees to each of the said sons as shall survive and attain the age of twenty-one years.”
Greene, one of the trustees, subsequently died, leaving Charles S. Henry the sole surviving trustee under the trust deed, and she charges that on the 19th of July, 1848, the niayor and aldermen of the city of Savannah conveyed to him as such trustee a certain lot of land numbered 5, Monterey Ward, in said city, the lot being then subject to certain annual ground-rents, as specified in the conveyance, and the complainant avers that the conveyance is informal and incomplete, inasmuch as the trustee never signed it as it was intended, and that it fails to set forth and express the trust interests of the three children as it should do. Wherefore she alleges that it should be reformed and be made to conform to the purposes of the trust as created and set forth in the original trust deed.
Persuasive and convincing reasons in support of that request are alleged which will hereafter be reproduced when the merits of the controversy are considered. Relief specific and general is prayed, as is more fully set forth in the transcript. Process was served and the respondents appeared, and after certain interlocutory proceedings filed separate answers.
All of the defenses to the merits are set up in the answer of the first-named respondent, who admits all of the preliminary matters alleged in the bill of complaint. He also admits that there was in existence at the time of the first marriage of the complainant the trust estate held by the surviving trustee arising under the conveyance from Elias Fort to the said two trustees, which, as he alleges, was held for the sole and separate use of the mother during her life, and remainder at her death to her three sons as tenants in common.
Prior to that transaction there is no controversy between the parties as to the facts, and he also admits that the authorities of the city conveyed the lot called Monterey Ward to the surviving trustee, but he alleges that by terms of the conveyance the legal title to the lot vested in the trustee in trust for the sole and separate use of the mother, the trust being executory only so long and for such time as the cestui que trust should remain a feme covert; and he denies that the conveyance is informal and incomplete in any particular, or that it was ever expected or intended by any one that the trustee should sign