Price v. White

COLLIER, C. J. The custom or usage of trade, is the law of that trade ; and to make it obligatory it must not only be certain, uniform and reasonable, but it must be sufficiently ancient to be generally known. [Collings v. Hope, 3 Wash. C. C. Rep. 150; Lewis v. Thatcher, 15 Mass. Rep. 433; Thomas v. Graves; 1 Rep. Cons. Ct. 308; Smith v. Wright, 1 Caine’s Rep. 45.] In Stevens v. Reeves, 9 Pick. Rep. 198, it was held that a person who makes a contract is not bound by the usage of a particular business, unless it is so general as to furnish a presumption of knowledge, or it is proved that he knew it. See also Wood v. Hickok, 2 Wend. Rep. 501. Witnesses may be examined to prove the course of a particular trade, but not to show what the law of that trade is. [Winthrop v. Union Ins. Co. 2 Wash. C. C. Rep. 7; Austin v. Taylor, 2 Ohio. Rep. 64; Sampson & Lindsay v. Gazzam, 6 Porter’s Rep. 124. When the meaning of a word used to designate an article of trade, is to be fixed by mercantile usage, it may be shown by the usage among merchants dealing particularly in such article. [Astor v. The Union Ins. Co. 7 Cow. Rep. 202.] But it has been held to be a general rule, that one witness is not sufficient to prove a custom. [Thomas v. Graves, supra; Wood v. Hickok, supra.] In Parrott v. Thacker, 9 Pick. Rep. 426, a usage, it was said, was not proved by one witness, where another witness [566] equally conversant with the business denied it, and where other witnesses might be produced to testify in respect to the same matter. Evidence of usage can only be resorted to when the law is doubtful, or unsettled. [United States v. McDaniel, 7 Peters’ Rep. 1; Murray v. Hatch, 6 Mass. Rep. 477; Coit v. Comm. Ins. Co. 7 Johns. Rep. 385; Allegre v. Maryland Ins. Co. 2 G. & Johns. Rep. 136; Rankin v. Am. Ins. Co. 1 Halls’ Rep. 619.] It is not admitted to contradict, or substantially to vary the legal import of a written agreement. [Benner v. The Bank of Columbia, 9 Wheat Rep. 581; Sleght v. Rhinelander, 1 Johns. Rep. 192.] The usage of no class of men can be sustained in opposition to the established principles of law. See 10 Mass. Rep. 29; 2 Wash. C. C. Rep. 7, 24; 2 Johns. Rep. 335; 1 Hall’s Rep. 602, 619. In the case at bar, the witness examined at the plaintiff’s instance, does not explicitly alledge that a usage, such as that it was proposed to establish,* did exist in point of fact; nor does he state that he was informed of the character of such contracts, the duties and obligations they impose upon the parties respectively. The proof is further in fault in not stating whether the usage was uniform, or how long it had existed. Besides these and other objections that might be particularized, it may be remarked that the testimony is suicidal ; for the witness said, that the only case that conformed to what he supposed to be usage, was influenced by the terms of the contract. If it may be conceded that the evidence of usage is admissible in a case like the present, to determine the extent of a party’s liability, which would seem to be fixed by the terms of the contract, the incompetency and insufficiency of that adduced, is so obvious, from the principles stated, and the citations by which they are sustained, that it is unnecessary to make it more manifest. The judgment of the County Court is reversed, and the cause remanded.