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he is subject to the parol evidence rule.83 But the application of the rule to third persons is not confined to such cases. Though most of the decisions on the subject, however broad the language used, are correctly decided since they merely involved either the contradiction of a recited fact, or the proof of fraud against the rights of a third person, a few decisions cannot thus be explained. In some recent cases 84 against joint tort feasors, the defence has been set up that a release had been given to the other tort feasor. Though perhaps the cases might have been well decided on the ground that the so-called releases when construed as a whole were merely covenants not to sue, the courts did not rest their conclusion on such a construction of the writing taken by itself, but admitted parol evidence of the negotiations between the parties to the release (though conceding that the evidence would not have been admissible between the parties themselves) on the ground that as against a third party the parol evidence rule had no application. The error of such decisions is plain if we assume that the defendant instead of being a joint tort feasor was a surety jointly bound on a contract, the principal debtor of which was released or given time—a change which would make no difference in the application of the argument of the court. In the case supposed, if judgment were given against the surety because a construction was given to the release of the principal, which the writing itself would not bear, the surety would thereafter seek to enforce by subrogation a claim against the principal debtor. He would, however, fail because the right to which he sought subrogation did not exist. As between the creditor and the principal debtor, the release would unquestionably be binding according to the terms of the writing; and as the creditor would have no right against the principal debtor, the surety could be subrogated to nothing.

In Libby v. Mount Monadnock, etc., Co., 67 N. H. 587, 32 Atl. 772, the plaintiff was a garnishee creditor, and was held subject to the terms of a written contract between the defendant and the garnisheed party as fully as if the litigation had been between the parties of the contract. Union Mach

inery &c. Co. v. Darnell, 89 Wash. 226, 154 Pac. 183.

84 O'Shea v. New York, etc., R. Co., 105 Fed. 559, 44 C. C. A. 601; Johnson v. Von Scholley, 218 Mass. 454, 106 N. E. 17; McKim v. Metropolitan St. Ry. Co. (Mo. App.), 196 S. W. 433; Nashville Interurban Ry. v. Gregory, 137 Tenn. 422, 193 S. W. 1053.

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Collateral agreements may be added to written contracts by usage.

652

Illustrations of collateral agreements annexed to written contracts by usage.. 653 Implications of fact or law in a writing may be contradicted more extensively by usage than by parol agreements....

654

How far law may be changed by custom.

655

A usage which the parties have indicated an intention not to adopt is ineffective....

656

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What is necessary to make a party to a contract chargeable with usage..
The province of the court and of the jury.

661

662

§ 648. Effect of custom and usage.

Usage or custom may be important in three different aspects: (1) To aid in the interpretation of the meaning of the express language of a contract;

(2) To annex terms to the contract, and thereby to contradict or vary implications which, otherwise, would be drawn from the written or oral expression of the parties; and

(3) To create new rules of law.

In the first aspect usage becomes important as a means of interpretation. In the second aspect two questions may be involved, first, does the usage show that the parties have agreed on a collateral term of their contract and, second, if so, does the parol evidence rule prevent their agreement from taking effect? In the third aspect, the usage has ripened into customary law. So far as the first use of evidence of usage is concerned, it may be said broadly, that any usage with knowledge of which both parties are chargeable is always admissible to show the meaning

of the language employed. Usage is an ordinary means of proving the local or technical meaning of language, and even language which is normally clear and unambiguous may be shown by usage to bear, under the circumstances of the case, a meaning different from its normal sense.1

§ 649. Distinction between custom and usage.

The terms, custom and usage, are commonly used interchangeably, though there is a recognized distinction in the meaning of the two words. Custom is such a usage as has by long and uniform practice become the law of the matter to which it relates.2 Usage derives its efficacy from the assent thereto of parties to the transaction; custom derives its efficacy from its adoption into the law, and when once established is binding irrespective of any manifestation of assent by parties concerned. Usage is, therefore, of importance only in consensual agreements since it is the assent of the parties which gives it its force. Custom, on the other hand, may be of importance in any department of the law. The custom of gavelkind or of borough English, under which land of a deceased person did not pass to his eldest son as at common law, did not depend for its validity on the assent of the eldest son to be wholly or partly disinherited. The importance of usage except for the purpose of establishing the meaning of words, is comparatively modern. The early law did not give effect to unexpressed implications of fact. The earliest decision of importance recognizing the validity of usage in this respect was decided in the latter half of the eighteenth century by Lord Mansfield. Custom, on the other hand, has from early times been recognized as a source of law, and the customs of different communities in England have been given effect by the courts. In the United States there is less law based on special custom than in England, and this method of developing and changing the law is of decreasing importance. Statutes take its place.

1 See supra, § 609, and infra, § 650. "Strictly speaking custom is that length of usage which has become law." Walls v. Bailey, 49 N. Y. 464, 10 Am. Rep. 407; Eames v. H. B. Claflin Co., 239 Fed. Rep. 631, 152 C. C. A. 465;

American Lead Pencil Co. v. Nashville, etc., R. Co., 124 Tenn. 57, 134 S. W. 613, 32 L. R. A. (N. S.) 323.

3 Wigglesworth v. Dallison, 1 Doug. 201.

Some confusion of thought has arisen from applying to usages the requirements necessary to establish customary law.

650. Proof of usage for purposes of definition.

Though Professor Thayer has said, that "In contracts, it was always recognized that familiar words may have different meanings in different places, so that 'every bargain as to such a thing shall have relation to the custom of the country where it is made," it may be doubted how far it was allowable under early law to show that a word in a written contract (or perhaps in an oral agreement) having a clear and fixed ordinary meaning bore a meaning contrary to its usual significance, if nothing in the context showed that a particular meaning was intended.5 But there are now numerous decisions (not all of them of recent date) where words with a clear normal meaning have been shown by usage to bear a meaning which nothing in the context would suggest. This is not only true of technical terms, but of language, which at least on its face

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Prelim. Treatise on Evidence, p. 403; citing, Keilwey, 87, 3, in the Ex. Ch. in 1505, and continuing: "In Baker v. Paine, 1 Ves. p. 456, 459 (1750), Lord Hardwicke, in a mercantile case of sale, remarked: 'all contracts of this kind depend on the usage of trade. . . . On mercantile contracts relating to insurance, etc., courts of law examine and hear witnesses of what is the usage and understanding of merchants conversant therein; for they have a style peculiar to themselves, which is short, yet is understood by them, and must be the rule of construction.' The development of the mercantile law by the use of special juries involved a recognition of these same ideas."

As late as the end of the eighteenth century in Yates v. Pym, 6 Taunt. 446, the words "prime unsinged bacon" were held to have so definite a meaning that parol evidence could not be admitted to show that bacon

with no more than a certain degree of taint came within their meaning. Not only Starkie on Evidence (p. 706) states that "plain and ordinary terms and expressions to which an unequivocal meaning belongs. . . ought not to be altered by evidence of a mercantile understanding and usage" but Stephen, Digest of Evidence, Art, 91 (2) expresses the same idea. "Usage may be admissible to explain what is doubtful: it is never admissible to contradict what is plain." Blackett v. Royal Exchange Ass. Co., 2 Cr. & J. 244, per Lord Lyndhurst, C. B. See also supra, § 609.

The general rule is stated in Soper v. Tyler, 77 Conn. 104, 106, 58 Atl. 699, "When the defendant made his contract with a Boston grain dealer, the meaning of any technical terms used in expressing it, so far as they were terms of common use in the grain trade at Boston, was to be determined by such usage."

has no peculiar or technical significance; though even to-day it is still occasionally said by courts that usage cannot control words having "a definite legal meaning;" or cannot be used to interpret a contract unless there is an uncertainty on the face of the instrument.8" So it is often said also that usage is admissible to explain what is doubtful but never to contradict what is plain. If this statement means that usage is not admitted to contradict a meaning apparently plain if proof of the usage were excluded (and this is what the statement seems naturally to mean), it is inconsistent with many decisions and wrong on principle.10 The words "sail in the month of October" in a policy of insurance have been proved to mean not to sail until the 25th of the month.11 The words in a bill of lading "to be discharged in 14 days" have been shown to mean fourteen working days. 12 The words "twelve shillings per day" have been shown to mean twelve shillings for ten hours; so that for working twelve hours and a half in a single day, the agreed compensation would be sixteen shillings.1 The word "products" in pork packing has been shown to exclude part of what an unenlightened person would call products.14 "White oak" may include varieties of wood not scientifically so designated.15 "An order" in a contract with an agent providing for a certain commission for "an order" has been shown to mean only an order on which a certain amount had been paid by the purchaser. 16 A transfer to a dealer "on approval to show my customers" has been shown to confer no

'Paepcke-Leicht Lumber Co. ບ. Talley, 106 Ark. 400, 153 S. W. 833; and see cases in this section passim. 8 Hall v. Philadelphia Co., 72 W. Va. 573, 78 S. E. 755.

8a Jones v. Cochran, 33 Okl. 431.

Blackett v. Royal Exchange Assur. Co., 2 C. & J. 244, and this statement is frequently repeated, e. g., Menage v. Rosenthal, 175 Mass. 358, 361, 56 N. E. 579. See also The Rebecca R. Douglass, 248 Fed. 366; Guild v. Sampson, 232 Mass. 509, 122 N. E. 712.

10 See supra, § 649, and infra, §§ 651, 652.

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11 Chaurand v. Angerstein, Peake, 43. 12 Cochran v. Retberg, 3 Esp. 121. A contract to give one's "entire time" will or will not require work on Sunday according to the usage of the business in question. Collins Ice Cream Co. v. Stephens, 189 Ill. 200, 59 N. E. 524. 13 Hinton v. Locke, 5 Hill, 437.

14 Morningstar v. Cunningham, 110 Ind. 328, 11 N. E. 593, 59 Am. Rep. 211. See also Stewart v. Smith, 28 Ill. 397.

15 Taylor v. Union Sawmill Co., 105 Ark. 518, 152 S. W. 150.

16 Newhall v. Appleton, 114 N. Y. 140, 21 N. E. 105, 3 L. R. A. 859.

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