Cooper v. Kane

By the Court, Nelson, Ch. J. I am inclined to the opinion that the evidence of the custom in respect to contracts like the one out of which this action has arisen, by way of explaining it, and which was offered by the defendant for that purpose, was admissible. It did not go to vary any express or necessarily implied stipulations between the parties therein contained, but rather to establish what amounted to a complete performance agreeably to the presumed understanding of the parties. Mr. Starkie says, 2 Starkie’s Ev. 258, 259, “ where parties have not entered into any express and specific contract, a presumption nevertheless arises, that they meant to contract and to deal according to the general usage, practice and understanding, if any such exist, in relation to the subject matter.” The same rule of evidence is also recognized by Phillipps, 1 vol. 420, 421, and Lord Kenyon remarked in Whitnel v. Gratham, 6 T. R. 398, that evidence of usage was admissible to expound a private deed, as well as the king’s charter. The right of carriers, dyers, wharfingers, &c. to a lien on the goods entrusted to them for their compensation, is frequently established by usage, independently of the contract. In Rushforth v. Hadfield and others, 6 East, 519, Lord Ellenborough permitted the defendants (common carriers) to go into proof of common usage to detain the goods for a general balance, on the ground of an implied agreement arising out of it between the parties. He observed that if there be a general usage of trade to deal with common carriers in this way, all persons dealing in the trade are supposed to contract with them upon the [388] footing of the general practice, adopting the general lien into their contract. Lawrence, J. admitted that the lien must be by contract between the parties, but observed that usage of trade was evidence of the contract, and if so long established as to afford a presumption it was commonly known, it was fair to conclude the particular parties contracted with reference to it. In Kirkman v. Shawcross, 6 T. R. 14, the dyers, dressers, whisters, printers, &c., of a neighborhood, held a public meeting and entered into an agreement that they would receive no more goods in the way of their trade, except on the condition that they should have a lien on them for a general balance, which was extensively published. The court held that any person who delivered goods to them after notice must be deemed to have assented to the terms prescribed ; and, as we have seen, notice might be inferred from the general notoriety of the terms thus published. Now, in this case, there is simply an agreement to excavate the earth in a certain street and to make the necessary embankment, according to a map of the corporation, for a given compensation. Nothing is said about the surplus earth, where it is to be laid, or what is to be done with it- Would it be a workmanlike execution of the contract to pile it upon the adjacent bank ? or may the contractor dispose of it as he sees fit, and as most convenient and profitable to himself? It appears to me, the solution of these questions may very well be referred to common usage in such cases, if any exist; and that if it should be proved as said by Lawrence, J. “ it is fair to conclude the particular parties contracted with reference to it.” This usage may often have a very important influence upon the minds of the parties as exemplified in this case : for the value of the materials, which the plaintiff has recovered, nearly equals the price of the job. If in fact the usage exists, and the contract was. made in reference to it, serious injustice must be the result of upholding the verdict. New trial granted.