Connable v. Clark

Hall, J. The plaintiff objected to the introduction of any evidence explaining the meaning of the term, “good breeder,” on the sole ground that the words were only ordinary English words, and hot a proper subject for expert testimony. The rule, with certain limitations,is, “that the meaning of words maybe controlled anct varied by usage ; even when they aré words of number,, length, or space, usually the most.definite in language.”" Walls v. Bailey, 49 N. Y. 442. The rule has been applied, in this state, to a case in which evidence was introduced to show “ that a general custom prevailed in the lumber trade of estimating two packs of shingles, of [172] certain dimensions, as a thousand shingles, without reference to the number of pieces in the pack.” Soutier v. Kellerman, 18 Mo. 511. The objection to the admission of the evidence was untenable. Besides, there is a distinction between the case of words which have ‘ ‘ a meaning and intelligibility to all eyes and ears,” and which a usage has, by putting them “in a particular use, as in some trade or handicraft, attached to them a meaning and effect not consonant with their general meaning,” and the case of words which have no full and exact meaning to the public, or in general, and which have such meaning only as a technical term of some business. In the former case the peculiar meaning of the words depends upon the establishment of the usage ; in the latter case it is not so, but it is proper to explain the meaning of the words, as used by experts in the business, as bearing upon the true interpretation of the contract, and this can be done by the testimony of those expert in the business. Nelson, v. Ins. Co., 71 N. Y. 458; Gaunt, Maupin & Co. v. Price & Co., 21 Mo. App. 542. The words, “good breeder,” as applied to a jack, if used separately, could be easily interpreted ; but, used together, they convey no full and exact sense to the mind of one not familiar with the vocabulary of those engaged in the business of raising, handling and dealing in jacks. The words clearly have some meaning, but their meaning is uncertain and indefinite. Do the words mean that a jack is fit and suitable for breeding purposes, or do they mean that the jack produces good colts % I think that the court below propei'ly treated the words as constituting a technical term. In this state the words, “prime barley,” have been ' held to be a technical term of the business of buying and selling barley (Whitmore & Pegram v. Coats, 14 Mo. 15); the terms, “excavation,” “indurated earth,” and “hard pan,” have been held to be technical terms of the business of railroad grading (Blair v. Corby, 37 [173] Mo. 813); the term, “merchantable measurement,” has been held to be a technicality of the business of buying and selling lumber (Gaunt, Maupin & Co. v. Price & Co., supra); the term, “spitting of blood,” has been held to be one of the technical terms of the business of life insurance. Singleton v. Ins. Co., 66 Mo. 63. In New York the phrase, “port risk,” has been held to be a technical term of the business of marine insurance. Nelson v. Ins. Co., supra. It is apparent, however, that, if a technical term has, in any particular locality, a special meaning, different from its general meaning, such special meaning must rest and depend upon a usage in such locality. In such a case the rules applicable to the proof and effect of a usage apply with full force. In proving 4he meaning of a technical term, therefore, it is not proper to confine the evidence to any particular locality, the question being, not the meaning of the term in any particular locality, but the meaning of the term as used in the business of- which it is a technicality. Hence, it was proper in this case to prove, by those expert in the business of raising, handling and dealing in jacks, the meaning of the phrase,- “good breeder,” as used in said business in reference to a jack; but the evidence should not have been confined to the locality of the sale. If the parties use the phrase in a peculiar sense, different from its general meaning, either party might have shown this by any competent evidence, including evidence of a usage in the locality of the sale, giving such peculiar meaning to the phrase, and' the knowledge, by the parties, of such usage. Proof of such usage did not alone suffice to conclusively show that the parties used the phrase in the sense affixed to it by the usage. It was necessary to show knowledge" of the usage on the part of the one sought to be bound thereby. This might have been done by presumptive, as well as by direct, evidence, that is, by the extent and duration of the [174] usage, and other evidence tending to connect said party with such knowledge. It is only where the usage is general, uniform, certain, and notorious, that it is binding upon parties to a transaction on the ground that they •are presumed to have contracted in accordance with it. A local usage does not bind one ignorant of it. This principle is fully sustained by the following cases : Martin v. Hall, 26 Mo. 386; Kimball v. Brawner, 47 Mo. 398; Cotton Press Co. v. Stanard, 44 Mo. 71; Walsh v. Miss. Trans. Co., 52 Mo. 434; Walls v. Bailey, 49 N. Y. 442; s. c., 10 Am. Rep. 407. The court erred in refusing to permit the plaintiff to testify in rebuttal, as he offered to testify. Such testimony was competent as tending to show the general meaning of the technical term, and also- the plaintiff’s ignorance of the peculiar meaning affixed to the term by the local usage in Audrain county. The instructions, given by the court on its own motion and for the plaintiff, and which have been set out in the statement of facts, were also erroneous, because they bound the plaintiff by the usage, on proof of it, without more, whether he had knowledge of it or not. The question, as to the plaintiff’s knowledge of such usage, should have been .submitted to the jury. Judgment reversed and cause remanded. Ellison, J., concurs ; Philips, P. J., concurs in the result.