tained a stipulation, that the plaintiff should spend and consume Proof of customary right three parts in four of the manure, arising from the tithes as not expressed well as from the glebe land, on the glebe, and leave on the land in a writing. all the manures not spread or bestowed on the premises, for the use of the landlord, he paying a reasonable price for the same. It was held, that the custom of the country, giving an away-going allowance for seed and labour, was not excluded. Parke, B. in delivering the judgment of the Court, said, "the question is whether, from the terms of the lease, it can be collected that the parties intended to exclude the customary obligation for seed and labour." The Court considered the stipulation, obliging the tenant to lay out the manure arising from the tithes, as imposing a new obligation on the tenant, dehors the custom, and as qualifying the obligation by an engagement on the landlord's part to give a remuneration by repurchasing a part of the produce in a particular way. "It is by no means," said the Court, "to be inferred from this provision, that this is the only compensation which the tenant is to receive on quitting. If, indeed, there had heen a covenant by the tenant to plough and sow a certain portion of the demised land in the last year, being such as the custom of the country required, he being paid on quitting for the ploughing; or to plough, sow, and manure, he being paid for the manuring; the principle of expressum facit cessare tacitum, which governed the decision in Webb v. Plummer, would have applied; but this is not the case here. The custom of the country, as to the obligation of the tenant to plough and sow, and the corresponding obligation of the landlord to pay for such ploughing and sowing in the last year of the term, is in no way varied. The only alteration made in the custom is, that the tenant is obliged to spend more than the produce of the farm on the premises, being paid for it in the same way as he would have been paid for that which the custom required him to spend."

In commercial transactions, there are many cases in which evidence of custom and usage have been admitted to annex incidents to a written contract. (1) Thus, where an insurance

(1) See the cases cited supra, 739, in which such evidence has

been admitted to interpret a con

tract.

was on a ship from London to the East Indies, warranted to depart with convoy, the Court held, that this clause of warranty must be construed according to the usage among merchants; that is, from such places where convoys are to be had, as from the Downs. (1) So, where the insurance is on goods till landed, and the defence is, that the plaintiff has been guilty of unreasonable delay in landing, the question can only be decided by knowing the usual practice of the trade, with which every underwriter is supposed to be acquainted, whether the practice has been recently or long established. (2)

On this principle, though the ordinary interpretation of an open policy of insurance would be, that it was merely to secure to the assured a bare indemnity, it has been held that evidence may be admitted to control it, by shewing a custom of merchants, that the assured should recover the gross freight, not deducting the charges for seamen and other expences. (3)

This doctrine of admitting evidence of usage to explain and construe mercantile contracts is strongly illustrated by the case of Cutter v. Powell (4), which was an action of assumpsit brought by an administratrix for work and labour done by the deceased. It appeared that the captain of a ship had given a note to the deceased, by which he promised to pay a sum of money to the deceased, provided that he proceeded on a voyage, and continued to do his duty as second mate, to the port of destination. The second mate died on the voyage, and the question was, whether the plaintiff could recover in this general action any portion of the wages for the time the deceased had served. An inquiry had been made by the direction of the Court relative to the usage of merchants on this kind of agreement; but no settled usage could be ascertained one way or the other. Lord Kenyon, in delivering his opinion, after stating that the deceased stipulated to receive the larger sum, if the whole duty were performed, and, unless the whole were per

(1) Lethulier's case, 2 Salk. 443. (2) Noble v. Kennoway, 1 Doug. 510. Vallance v. Dewar, 1 Campb.

503.

(3) 1 Bing. 61.
(4) 6 T. R. 320.

formed, to receive nothing, added, that on this particular con-
tract his opinion was at present formed; at the same time, said
Lord Kenyon, if we were assured, that these notes are in uni-
versal use, and that the commercial world have received and
acted upon
them in a different sense,
I should give up my opi-
nion. And Mr. Justice Lawrence said, "With regard to the
common case of an hired servant, to which this has been com-
pared, such a servant, though hired in a general way, is con-
sidered to be hired with reference to the general understanding
upon the subject, that the servant shall be entitled to his wages
for the time he serves, though he does not continue in the
service during the whole year. So if the plaintiff in this case
could have proved any usage, that persons in the situation of
this mate are entitled to wages in proportion to the time they
served, the plaintiff might have recovered according to that
usage. But if this is to depend altogether on the terms of the
contract itself, the plaintiff cannot recover any thing."

In these cases, as well as in those before mentioned, and in every other similar case, the rule for admitting such evidence of usage must be taken with the qualification, that the evidence proposed is not repugnant to or inconsistent with the contract. Therefore, in an action on a policy of insurance,

on the ship till moored at anchor twenty-four hours, and on the goods till discharged and safely landed," evidence having been admitted, that by the custom of the trade the risk on the goods, as well as on the ship, expired in twenty-four hours, the Court of King's Bench granted a new trial on that ground, and on the new trial the evidence was rejected. (1) Evidence of usage of trade, which contradicts the express words of a contract, is clearly inadmissible. (2)

It has been doubted by judges of the highest authority, (3) whether the admission of evidence of custom and usage to inter

(1) Parkinson v. Collier, Sitt. after Mich. 1797, Park. Insur. 416.

(2) Yeates v. Pim, 2 Marshall, Rep. 141; Holt, N. P. C. 95. S. C.

Blackett v. Royal Exchange Assur-
ance Company, 2 Cr. & J. 244.

(3) By Lord Eldon, in Anderson
v. Pilcher, 2 B. & P. 168, and see
Lethulier's case, 2 Salk. 443.

DDD

Parol evidence ten instru

to add to writ

ments.

pret, and annex incidents to written instruments, is not contrary to sound policy. It's admissibility, however, is now too well settled to be questioned; and, indeed, if the matter were res integra, it would be difficult to reject it on principle; a writing must have effect with reference to the general law of the land, and the only difference, between taking that general law and a custom in connexion with the writing, is that the latter is a binding law only on particular places, persons, or things; (1) and the qualification of the rule by the principle expressum facit cessare tacitum applies as well to an addition sought to be made to a contract by the general law, as by the special law. Quilibet potest renunciare juri pro se introducto. (2) The principle, upon which evidence of usage is admitted, distinguishes this class of cases from those in which it is sought, by contemporaneous parol evidence of facts, to add terms to a writing. The state of facts, in which this question may arise, may be considered with reference to a case in which a contract, or other instrument, appears to be complete on the face of it; and secondly, with reference to those cases in which it appears, on the face of a written instrument, that the parties could not have contemplated that it should express all the terms of their agreement.

With respect to cases, in which the instrument appears on the face of it to be complete, it seems that it may be laid down as a general rule, applicable as well to cases in which a written instrument is required by law, as to those in which it is not required, that parol evidence is inadmissible to shew terms upon which the instrument is silent. (3) Where

(1) A custom, in the intendment of law, is such an usage as has obtained the force of law, and is, in truth, a binding law upon the particular place, persons, and things, which it concerns, and such a custom cannot be established by grant of the king, (49 E. 3,) nor by act of Parliament. It is jus non scriptum, and made by the people only of the place where the custom exists. For where the people find an act to be good and beneficial,

the rent for a house was specified in a written agreement to be twenty-six pounds a-year, and the landlord, in an action for use and occupation, proposed to show by parol evidence, that the tenant had also agreed to pay the ground-rent, the Court refused to admit the evidence. (1) So, where a tenant, having paid the land-tax, brought an action to recover it back from his landlord, and gave in evidence a written memorandum of agreement in the plaintiff's handwriting, which specified the rent and terms, but was silent respecting the payment of taxes; the defendant offered parol evidence, that, previously to the drawing up of the memorandum, it had been mentioned, and was understood by the parties, that the rent was to be paid clear of all taxés: this evidence was rejected, and the Court of Common Pleas afterwards, on a motion for a rule to show cause, why the verdict should not be set aside, adjudged the evidence to be inadmissible, and refused the rule. (2)

426 Williams v. Jones, 5 B. & C. 108, and see Parteriche v. Powlet, 2 Atk. 384, where Lord Hardwicke said, "to add any thing to an agreement in writing, by admitting parol evidence which would affect lands, is not only contrary to the Statute of Frauds, but to the rule of common law, before that statute was in being." The same principle is laid down by the Court in giving judgment, in Goss r. Lord Nugent, 5 B. & Ad. 64, "By the general rules of the common law, if there be a contract which has been reduced into writing, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made, or during the time

that it was in a state of preparation, so as to add to, or subtract from, or in any manner to vary, or qualify the written contract." See also Harvey v. Grabham, 5 Ad. & El. 61. As to the question, what is the consequence of an omission to mention certain terms, which were either agreed upon, or in respect of which no agreement was made, and what is a sufficient statement of such agreements to satisfy the Statute of Frauds, See Elmore v. Kingscote, 5 B. & C. 583. Acebal v. Levy, 10 Bing. 376. Hoadley v. M‘Laine, id. 482. (1) Preston v. Merceau, 2 Black. 1249.

(2) Rich v. Jackson, 4 Bro. Ch. C. 515. 6 Ves. 334, n. S. C.

* In the case of Preston v. Merceau, above cited, Mr. Justice Blackstone, after stating that the Court could neither alter the rent nor the term, the two things expressed in the agreement, is reported to have added, "that, with respect to collateral matters, it might be different; the plaintiff might shew, who was to put the house in repair, or the like, concerning which nothing is said." But this opinion is not consistent with the principle established in Meres v. Ansel, (3 Wils. 275). Rich v. Jackson, (4 Bro. Ch. C. 515). Powell v. Edmonds, (12 East, 6), and several other cases above mentioned.