Barlow v. Lambert

STONE, J. The constitution of the State of Alabama (Art. II, § 1) declares, that “ the powers of the government of the State of Alabama shall be divided into three distinct departments, and each of them confided to a separate body of magistracy — to-wit: those which are legislative to one; those which are executive to another; and those which are judicial — 707 — to another.” The first section of the third article contains, this language: “ The legislative power in this State shall be vested in * * * the general assembly of the State of Alabama.” • By the “schedule” attached to the constitution of the State, (§ 5,) the “territorial laws, not repugnant to the constitution,” were continued of force. The acts of 1828 and 1832, (Clay’s Digest, p. 883, §§ 11, 11,) adopted the rules of the law merchant, as to days of grace, demand, .protest, and notice, so far as the same affect bills of exchange, and bonds and other instruments payable in bank. The Code (§§ 1525, 1526) adopts the “commercial law,” as governing the same classes of instruments, with provisions somewhat variant. The Code superseded all the “acts of a public nature,” theretofore passed, and which were “ designed to operate on all the people of the State, not embraced in said Code”; except that the acts of the legislature passed at the session of' 1851-2, whether approved before or after the adoption of the Code, were not repealed or affected by the Code, “but such laws supersede any provision of the Code with which they conflict.” — Code §§ 11, 12. In Oawood’s case, 2 Stew. 360, this court held, that under the 2d “article of the ordinance of 1787, “which was after-wards made the fundamental law of” this territory, “the common law of England, so far as applicable,” was made a rule of action for our government, “ both in civil and criminal cases.” By a series of decisions, running through our entire judicial history, the above doctrine has been firmly established ; and it must now be admitted, that the common law, qualified as above, is part and parcel of the law of this State, We believe we have thus exhibited the sources, organic and written, from which our rules of action are mainly derived. The constitution, in the distribution of the “ powers of the government,” having conferred the “legislative power” on the “general assembly,” the question may arise, Under what authority, by what warrant, are we brought under the dominion of other rules of action? Is it sound, is it consistent with the genius of our government, that any portion of the community less than the whole — any city, town, village, or neighborhood — shall exercise powers which the constitution has con — 708 — ferred alone on the general assembly? Shall such “portion of the community” make unto themselves a law which shall overrule the general law ? It becomes us to feel our way cautiously, lest there grow up in .our midst some third estate, which shall, in time, usurp the government. While we are not prepared to say that “customs,” or “usages,” for certain purposes, and under certain restrictions, may not, and do not, rightfully exist, we' own ourselves “ no friends to the almost indiscriminate habit, of late years, of setting up usages, or customs, in almost all kinds of business or trade, to control, vary, or annul the general liabilities of parties under the common law, as well as under the commercial law.” — The Schooner Beeside, 2 Sumner’s B. 567. Like most other subjects, on which the minds of men differ, the decisions of the courts, defining what usage or custom may or-may not do, have been far from uniform. Much confusion and inaccuracy have crept into the adjudged cases, so that any attempt to reconcile them would necessarily prove abortive. Custom, long acquiesced in, and sanctioned by judicial decision, has given us the systems of laws known as the common law and the law merchant. These systems are judicially taken notice of, and are not the subject of proof. — Hogan v. Beynolds, 8 Ala. 59. These systems, then, may be declared to have obtained the dignity of law. Local customs, or particular usages, can claim no such eminence. They are not, and cannot become, a rule of action “prescribed.” They never assume a character so binding, as that parties cannot, by agreement, place their contracts without their influence. So. when custom and contract come in conflict, the latter prevails over the former. They are, at most, but a part and parcel of the contract, — the subject of proof like other facts, — and are only binding, because they are a part of the contract. Not that the proof in each case shows that the parties, in fact, incorporated the custom into their contract; but that by the testimony, it is shown that the particular custom is so general and so known, as to raise the inference that the parties knew of its existence, and contracted with reference to it. It is, in effect, nothing more than one means of establishing a material fact; a case of presumptive evidence. The fact to be established is, that a certain element or stipulation entered into — 709 — the contract or agreement of the parties. That element or stipulation was either not expressed in the contract, or, if expressed, the parties either can not, or do not, offer proof of the direct fact. Lrsuch case, the rule declares that proof may be made of the local custom or usage, in order that from its existence-the supposed element or stipulation may be safely and satisfactorily deemed to be incorporated into the contract. If the proof fail to raise this inference, it should be regarded as insufficient. When custom has been sufficiently proved, it becomes a part of the contract, not the law of the case. — Jones v. Fales, 4 Mass. R. 252; Halsey v. Brown, 3 Day, 346. It follows from what is said above, that custom cannot overturn the positive requirements of the law, or the express contracts of the parties, whether the contracts be evidenced by writing or not. — Renner v. Bank of Columbia, 9 Wheat, 587. Neither can custom contravene any principle of public policy. — Luarden v. Warder, 3 Rawle 107; Dunham v. Day, 13 Johns. 44; Gallatin v. Bradford, 1 Bibb, 209; Williams v. Gillman, 3 Greenl. 281; Waters v. Lilly, 4 Pick. 145. Evidence of custom, cannot be received, to give to plain -and unambiguous words or phrases a meaning different from their natural import. — Schooner Reeside, 2 Sum. 567; Turney v. Wilson, 7 Yerg. 340; Ivey v. Phifer, 13 Ala. 824. This principle rests on a sound public policy. Oral evidence cannot be given to vary or contradict, enlarge or qualify a written contract, or to prove that the parties intended differently from the legal import of their language, although witnesses may testify, directly and positively, to such different intention. Neither can such result be attained indirectly, by proof that a local custom’ exists, and has become so known and general, that parties are presumed to have contracted with reference to it, and thus made the custom a part of their agreement. The former is an offer to make direct proof of an inadmissible fact; the latter, an effort to prove circumstances, or facts, from which to infer the fact, which, when offered directly, is inadmissible. The statement of such a proposition is its refutation. We hold,, then, that proof of custom may be received, to supply the details of a contract, either written or oral, where — 710 — the contract is silent in its details, unless such custom contravene the positive requirements of the law, or some principle of public policy. — The Schooner Reeside, 2 Sumner, supra; Jones v. Fales, 4 Mass. 243; Rankin v. Amer. Ins. Co., 1 Hall’s Rep. 619; Gibson v. Cuyler, 17 Wend. 305; Ala. & Tenn. Rivers Railroad Company v. Kidd, and Partridge v. Forsythe, at the present term. It may also safely be laid down, that where by local custom, or usage, provincialisms, and technicalities of science and commerce, and perhaps some others, have acquired a-known, fixed, and definite meaning, different from their ordinary import; or, where such technicalities, unexplained, are susceptible of two or more plain and reasonable constructions, it is certainly competent to prove the existence of such custom, as a means of showing the sense in which the contracting parties intended to be understood. — Murray v. Hatch, 6 Mass. 465; Winthrop v. Union Ins. Co., 2 Wash. Cir. Ct. Rep. 10; Sleght v. Rhinelander, 1 Johns. 192; Boorman v. Johnson, 12 Wend. 572; Cowen & Hill’s Notes to Phil. Ev. 3 vol. p. 1409; Barger v. Caldwell, 2 Dana, 130. Wé are aware that, in some adjudged cases, principles are assorted in conflict with some of the rules expressed- above. The same remark may be predicated of some loose dicta found in other cases, and some of the elementary writers. Of this class are the following: Middleton v. Heyward, 2 Nott 6 Me. 9; Bank v. Paige, 9 Mass. 155; Homer v. Dorr, 10 Mass. 26; Bouv. L. D., “Custom,” and cases cited; United States v. McDaniel, 7 Peters, 15; Coit v. Com. Ins. Co., 7 Johns. 385; Boorman v. Johnson, 12 Wend. 572; Smith v. Wilson, 3 Barn. & Adol. 728; Cutler v. Powell, 6 T. R. 320. A dictum in Price v. White, 9 Ala. 563, is perhaps obnoxious to this criticism. The words testified to by the witness Boyles, as a part of the contract of hiring, that the hirer was to “lose the negro’s lost time,” are plain and unambiguous. They have but one legitimate meaning, and it was not permissible to give to them a different meaning, either by direct or indirect proof, as was proposed in this case. If the contract had been silent on the matter of the negro’s lost time, we do not say that the alleged local custom of Baldwin county, was not a legitimate subject — 711 — of proof, if offered alone. It was not so offered, and we need not now decide that question. There is no error in the record, and the judgment of the circuit court is affirmed.