Sec 709

When there is an established course of business between two parties, then services rendered by one to the other may be regarded as made subject to the general engagement previously instituted.3 Thus, a specific proposal and acceptance will be inferred where an agent makes disbursements incidental to the due discharge of his agency, though not distinctively requested.4 - A proposal and acceptance, also, may be implied from usage, supposing that the parties place themselves within the operation of such usage.5 Thus, the particular kind of credit given by a shipwright for the repairs of a ship will be determined by the local usage to which the parties subjected themselves.6 And the limit of the contract of brokerage is thus determined,7 and so of other mercantile agencies.8 But Proposal and acceptance implied from course of business and usage.

1 Strong, J., Carpenter V. U. S., 17 Wal. 489.

2 Soule, J., Mass. Gen. Hosp. V. Fairbanks, 129 Mass. 81.

3 Supra, sec 653; Ch. on Con. 11th Am. ed. 81 et seq.; Rogers V. Price, 3 Y. & J. 28; Wiltshire V. Sims, 1 Camp. 258; Bruce V. Hunter, 3 Camp. 467; Eaton V. Bell, 5 B. & Ald. 34; Calton V. Bragg, 15 East, 223.

4 Wh. on Ag. sec 311; Bayley V. Wil-kins, 7 C. B. 886; Smith V. Lindo, 5 C. B. N. S. 587; Colley V. Merrill, 6 Greenl. 50; Stocking V. Sage, 1 Conn.

519; Powell V. Newburgh, 19 Johns. R. 284; Wynkoop V. Seal, 64 Penn. St. 361.

5 See Wh. on EV. sec 962 et seq.; supra, sec 6, 7.

6 Raitt V. Mitchell, 4 Camp. 146.

7 Wh. on Ag. sec 134, 696; Wh. on EV. sec 968; Sutton V. Tatham, 10 A. & E. 27; Farnsworth V. Hemmer, 1 Allen, 494.

" Young V. Cole, 3 Bing. N. C. 724; Graves V. Legg, 2 H. & H. 210; Schu-chardt V. Allen, 1 Wall. 359; Randall V. Kehler, 60 Me. 37; Day V. Holmes, a usage, to be thus recognized, must be reasonable and consistent with the policy of the law.1 Nor can it be introduced to establish a contract when there is no contractual relation. Its object is to elucidate what exists, not to create that which previously had no existence.2 Thus, in a case in Maryland in 1880, it was held that an executor could not be made liable, on the ground of usage, for provisions furnished to persons attending the deceased's funeral.3

Sec 710

Under this head may be ranked contracts of guaranty and indemnity. "If you will employ A., I will guarantee his good conduct," or "I will indemnify you for any loss," or " if you will sell A. certain goods, I will answer for his paying." In each of these cases there is a conditional proposal which is accepted when A. is employed, or when the goods are delivered to A.1 Until this acceptance, and notice thereof when this is required, the contract is not complete, and has no binding effect.2 A proposal to a creditor to forbear may take this conditional type. "If you will not press your claim, I will save you harmless." The forbearance, with notice to the party making the proposal, establishes the contract betweeu him and the creditor forbearing, and a term of the contract is the promise to pay.3

Proposal to guaranty involves promise to pay.

103 Mass. 306; Wh. on EV. sec 967; Smith V. Tracy, 36 N. Y. 79; Baker V. Drake, 66 N. Y. 518; Benners V. Clemens, 58 Penn. St. 24; Frank V. Jenkins, 22 Oh. St. 597.

1 Farnsworth V. Hemmer, 1 Allen, 494; Snelling V. Hall, 107 Mass. 138; Evans V. Waln, 71 Penn. St. 69.

2 Wh. on EV. sec 965 et seq., and cases there cited.

3 "On the day of the funeral," so runs the opinion of the court, "the body was taken to a church some five miles distant for interment, and after the funeral services were over and the body buried, the plaintiff (with whom the deceased had lived and at whose house he died) caused an invitation to be given to those present to repair to his house for dinner; and the proof shows that some seventy or eighty persons accepted the invitation and dined with the plaintiff, and that twenty-five or thirty horses, of parties so dining, were also fed by the plaintiff. It nowhere appears that this entertainment was provided at the instance or request of the defendant; but it seems to have been the unsolicited and voluntary act of the plaintiff. The charge is sought to be maintained by what is said to be a custom in the neighborhood. If custom could enter into the matter, and shape the claim of the plaintiff, that custom, if allowed to be uniform in operation, would, to a large extent, control the discretion of the orphans' court, without respect to the condition and circumstances of the deceased. If custom could authorize the giving of funeral dinners at the expense of the estate of the deceased, the allowance therefor would be proper, whether the estate proved to be solvent or insolvent, or whether the number of persons attending them be eighty or five hundred, or even more. Such entertainments are not the ordinary, and certainly not the necessary, incidents of funerals, nor are they within the contemplation of the law which provides for the allowance of reasonable funeral expenses, having reference to the condition and circumstances of the deceased. Those who think proper to furnish such entertainments must do so from motives of hospitality, and not with design of charging the estate of the deceased." Shaeffer V. Shaeffer, 54 Md. 679.