Burbridge & Houston v. S. Gumbel & Co.

Whitfield, J., delivered the opinion of the court. The offer of the defendants was to show not only that it was the custom of the cotton factors in the New Orleans market, but also the custom of cotton factors generally, to apply instructions as to insuring cotton only to the season or cotton year in which such instructions were given. It is said in IIoran v. Stracham, 86 Ga., 408: “When a custom is general, every person who makes a contract is presumed to know the custom, and it enters into the contract and binds him; but, where it is a purely local "custom, ’ ’ a stranger to the locality where it exists cannot be bound by it, unless knowledge of the custom is proven. In Walls v. Bailey, 10 Am. Rep., 407, a case reviewing Barnard v. Kellogg, 10 Wall., 383, and Dodge v. Favor, 15 Gray, 82, cited by counsel for appellees, it is said: “It is for the jury, then, under proper instructions from the court, to take all the evidence in the case — that as to the existence, duration, and other characteristics of the custom or usage, and that as to the knowledge thereof by the parties — and therefrom to determine whether there is shown a custom of such age and character as that the presumption of law will arise that the parties knew of and contracted with reference to [377] it, or whether the usage is so local and particular as that knowledge in the party to be charged must be shown affirmatively or maybe negatived.” This the jury in this case ivas shut off from doing. See, to the same effect, Sampson v. Gazzam, 30 Am. Dec., 578, where the court says: “Where a custom or usage is proved to exist in relation to a particular trade or pursuit, if it be general, all persons engaged therein are presumed to contract in reference to such usage. ’ ’ See, also, Andrews v. Roach, 37 Am. Dec., 718; Mooney v. Insurance Co., 138 Mass., 375, and the authorities in note to Smith v. Clews, 11 Am. St. Rep., 627. The evidence must not be of opinions, as in Shackelford's Case, 37 Miss., 202, where the general doctrine is recognized and approved in the court’s statement of the ‘‘ foundation of the whole doctrine of custom and usage, ’ ’ and in which case the mode of showing knowledge is not passed on, except as to opinions. In Dodge's Case, supra, it is stated (page 83) that “they did not offer to prove by direct testimony that the plaintiff knew of this custom, but contended that they could satisfy the jury, on the evidence in the case, that he knew of it. ” This was allowed. It went to the jury. In Barnard v. Kellogg, supra, the point decided was that the rule of caveat emptor could not be annulled by proof of custom to the contrary, on the familiar principle that custom cannot be shown when it contravenes the law. The testimony offered was to show, not a purely local custom, but a general one, and should have gone to the jury, under proper charges. Even if the offer had been to prove only the custom of the cotton factors in New Orleans, the testimony should have been received. Says Mr. Lawson, in his work on Customs and Usages (pages 40, 41, § 17): “Knowledge of a usage is necessary in every case in order to bind a person by its terms. Sometimes this notice must be expressly proved, and sometimes from its generality and notoriety the law raises the presumption that it was known. It is, therefore, only as affecting the question of notice that the generality of the usage [378] becomes material. And as express notice is difficult to prove, because in the majority of cases nothing has been said by the parties in their negotiations about the usage, it is obvious that in the greatest number of instances it becomes absolutely necessary to prove such a usage as the law will presume the party intended to be bound by; and, consequently, in all these cases the generality of the custom becomes vital, and the rule that a usage must be general is applied by the courts with rigor. It becomes, therefore, of importance to determine what the courts understand by this rule. And, in the first place, it is settled that a usage may be 'general, ’ as this term is used here, notwithstanding that it is confined to a particular city, town, or village. It may be generally known in that city, town, or village, and be understood by all persons dealing there, and yet it may not exist in any place beyond. But the usage of a single house or of one person only is insufficient. . . A particular banking usage must apply to a place rather than to a particular bank. It must be the rule of all the banks in the place, or it cannot be a valid usage. ’ ’ Again, in section 24, the author quotes approvingly from Mayor, etc., of Pittsburg v. O' Neill, 1 Pa. St., 343: “All trades have their usages,’ and, when a contract is made with a man about the business of his craft, it is framed on the basis of its usage, which becomes a part of it, except when its place is occupied by particular stipulations” — and refers to many instances, illustrative, where " the usage being proved, it was held not material that the proof did not show, in addition, that the party to be affected by it had express notice of it, ’ ’ but ‘ ‘ it would be presumed ’ ’ that they had notice. Sewell v. Corp, 1 Car. & P., 392; Given v. Charron, 15 Md., 502; Lyon v. George, 44 Md., 295. In Couch v. Coal Co., 46 Iowa, 17, the sanie doctrine is expressly stated, saying: “If it had been shown that operators of mines in this state, similarly situated, and using substantially the same kind of machinery, generally constructed cages with [379] bonnets, it could be reasonably presumed that defendant had knowledge of such custom,” etc. So, in section 18, Mr. Lawson says that, in the case of particular usages, knowledge ‘ ‘ is to be shown by express proof or by evidence of their generality, ’ ’ using the word ' ‘generality ’ ’ in the sense explained by him in section 17. And he concludes (§ 24): ‘‘ If a party closes his eyes and shuts his ears to what is universally known in his community by others, he will not be allowed to shelter himself under a plea of ignorance. ’ ’ If, therefore, defendants could show the custom of the cotton factors of the New Orleans market to be as insisted, they should have been allowed to do so. If they succeeded in showing such established, uniform, certain custom there, among other cotton factors in that market, a' presumption would arise (under the authorities mjpra and the following cases, cited in note 1 to section 17, to wit: Gleason v. Walsh, 43 Me., 397; Thompson v. Hamilton, 12 Pick., 424; Perkins v. Jordan, 35 Me., 23; and Clark v. Baker, 11 Metc., [Mass.] 186) from a custom thus general in that market that the plaintiffs (themselves cotton factors in that market) knew of that custom, and contracted with reference to it — a presumption, which plaintiffs might, if they could, rebut. All the testimony touching such custom, in all its aspects, should have been submitted to the jury, the triers of the facts. See, also, note to Wigglesworth v. Dallison, 1 Smith Lead. Cas., pt. 2, p. 920; Adams v. Otterback, 15 How. (U. S.), 539. It was also error to have excluded the testimony as to the settlement and discontinuance of business between the parties at the close of the season of 1889-90. This was one of the factors in determining the question as to whether plaintiffs were bound to insure this cotton. It was not error to exclude the transcript of the record from the civil district court in New Orleans. It ’ is an unsworn pleading, and was not competent. The judgment is reversed.