Hurst v. Larson

BUBNETT, J. The assignments of error are three. The first two are based upon the admission of the testimony of the two defendants respecting the custom alluded to in their answer. The third is predicated upon the entry of judgment against the plaintiff and in favor of the defendants for the costs and disbursements incurred. In effect, the testimony of E. A. Larson, defendant, on the subject of custom was that it had been the practice in the vicinity where he resided and the potatoes in question were produced, for the buyer to furnish the cars for their transportation, in all cases that he knew of, and that the farmers there raise small tracts of potatoes and the buyer orders the car and informs the grower when he gets the car there ready for loading. The testimony of the other defendant was practically the same. 1. It will be observed that the contract requires the potatoes to be delivered by the defendant “f. o. b. Liberal, and shipped to the said W. S. Hurst & Co. at Portland.” It is silent about the means of carriage on board which the produce was to be placed, or who was to furnish the same. Under our statute, L. O. L., Section 727, subdivision 12, evidence may be given of [214] “usage, to explain the true character of an act, contract or instrument where such true character is not otherwise plain. But usage is not admissible except as a means of interpretation. ” It is plain, therefore, that no new terms or stipulations can be added to a contract by proof of usage. Neither can the plain, explicit terms of a written agreement be contradicted by such testimony. It is otherwise where it is not plain what the true character of the instrument is, or where the stipulation is silent upon something necessary to the complete performance thereof. In Holmes v. Whitaker, 23 Or. 319, 324 (31 Pac. 705, 706), speaking of the silence of the contract respecting who should furnish the boat upon which the property which was the subject of sale was to be transported, it is said: “Hence, proof of usage or custom, if any prevailed, is admissible to supply these details upon which the contract is silent; if such usage or custom was known to the plaintiffs at the time the contract was made.” 2. In the feature under consideration the IiolmesWhitaker case is not materially different from the one in hand, and hence it was competent here to take the testimony of the defendants respecting the custom governing such matters, and it was a proper issue in the ease upon which the defendants were entitled to give evidence. 3. Much reliance is placed by the plaintiff on the ease of Culp v. Sandoval, 22 N. M. 71 (159 Pac. 956, L. R. A. 1917A, 1157), holding in effect that where an individual has agreed to perform an act, whatever is necessary to such performance is a part of the agreement and it is implied that he must furnish the means of accomplishing the act; hence, when a vendor has contracted to sell goods f.' o. b. cars, he must procure the [215] cars and load the goods thereon. That precedent is not applicable to the present contention, because in that case no custom was pleaded, while here it is stated in defense that the custom existed and was known to the plaintiff, so that if this be true it must have entered into the negotiations of the parties automatically without express mention of it. By analogy it may be said that a general custom known to both contracting parties respecting the subject matter of their stipulation is, in a certain, sense, the law governing them, so that it is not necessary to mention it in the writing. Or, as said in Sawtelle v. Brew, 122 Mass. 229, quoted with approval in the Holmes-Whitaker case: “A custom within the meaning of the law, if general, is incorporated into and becomes a part.of each contract to which it is applicable; if local, of every contract made by parties having knowledge of or bound to know its existence.” There was no error in receiving the testimony of the defendants about the custom. 4. The verdict was adverse to the plaintiff. No' exception is noted respecting the rulings of the court prior to the rendition of “the verdict, except the objections to the testimony already considered. These being unavailable, the judgment for the defendants for costs and disbursements follow as a necessary consequence, so that there is no error to be predicated on the third assignment. The judgment is affirmed. Affirmed. Bean, Bennett and Harris, JJ., concur. ^