This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In many kinds of business a great number of usages and customs have gradually been built up. These customs are rarely carried in express terms into contracts made with reference to such kinds of business, yet they are ordinarily intended by the parties as terms of such contracts. Accordingly even though the contract is in writing, extrinsic evidence may be resorted to to show usages and customs of such business consistent with the contract, and either known to the parties to the contract,1 or so notorious that one dealing in such business must be presumed to know it.2 Thus a principal who employs a broker is bound by the customs of the market at which such broker acts.3 Thus in an oral contract of insurance not specifying when it is to take effect extrinsic evidence of a custom as to when the risk attaches is admissible.4 So under a contract to pay twelve dollars an acre for clearing a right of way at points to be designated, it has been held proper to show a custom to pay for clearing in open fields only such proportion of the contract price as such work bears to the work of clearing in the forest.5 So under a binding slip issued by an insurance company which recites that it is issued to the insured to protect him against loss for a certain time and amount, but which is incomplete as not showing the consideration, it may be shown that the custom of the insurance business is to issue such slips pending the acceptance or rejection of the policy and that in case of rejection, liability under the binding slip ceases at once.6 To be regarded as part of a contract, however, the usage or custom must have both of the foregoing elements. (1) It must be actually or constructively known; and (2) it must be consistent with the contract. If either of these elements is lacking the usage or custom cannot be regarded as part of the contract. If the usage is neither actually or constructively known to one of the parties to the contract, it is not binding upon him.7 Thus the usage of banks to hold checks deposited as a deposit until the end of banking hours to see if the account is good is not binding on a depositor if not known to him.8 It is perfectly possible for parties to make contracts which are not controlled by given usages. This may be done by expressly providing against them; but it is done more frequently by making express provisions, covering the same ground as the usage, but inconsistent therewith. Accordingly the usage invoked must furthermore be consistent with the contract in question in order to be regarded as part of it. If consistent, with the express provisions of the contract, it cannot be used to contradict them and to show an intent different from that expressed.9 Thus the specific provisions of a contract to ship goods cannot be contradicted by a local custom.10 So a contract to saw logs as fast as the operator could cannot be contradicted by a custom to saw logs of different owners in the order in which they were delivered.11 So a contract which provides who shall pay the duty cannot be contradicted by a custom as to who receives the benefit of subsequent reductions.12 So a written oil lease cannot be contradicted by evidence of a custom that the prospector should burn oil produced on a claim.13 So a contract requiring a specific number of wells to be bored cannot be contradicted by a custom to bore a certain number in a given time.14 So if a contract requires " walls to be washed or sized with good strong glue " preliminary to papering, evidence of a custom as to the method of papering is no part of the contract.15 So under a contract to print a catalogue cover in accordance with approved proof, it cannot be shown to be the custom for the printers to add their name to the bottom of the last page of the catalogue, proof having been approved without such addition.16 The legal effect of a transaction cannot be contradicted by a usage. So a custom of banks that crediting a deposit by indorsing checks is merely a receipt, not an assignment of the check for value, and that the bank is not a bona fide holder for value has no validity.17
1 Lawson v. Hewell, 118 Cal. 613; 49 L. R. A. 400; 50 Pac. 763; Green v. Board of Trade, 174 Ill. 585; 49 L. R. A. 365; 51 N. E. 599.
2 Protection Life Ins. Co. v. Foote, 79 Ill. 361; Illinois, etc., Association v. Wahl, 68 Ill. App. 411; Supreme Lodge Knights of Pythias v. Knight, 117 Ind. 489; 3 L. R. A. 409; 20 N. E. 479; Daughtry v. Knights of Pythias, 48 La. Ann. 1203; 55 Am. St. Rep. 310; 20 So. 712; Home Forum Benefit Order v. Jones, 5 Okla. 598; 50 Pac. 165; McLendon v. Woodmen of the World, 106 Tenn. 695; 52 L. R. A. 444; 64 S. W. 36.
3 Hass v. Relief Association, 118 Cal. 6; 49 Pac. 1056; Condon v.
Reserve Association, 89 Md. 99; 73 Am. St. Rep. 169; 44 L. R. A. 149; 42 Atl. 944.
4 Supreme Lodge Knights of Pythias v. Kalinski, 163 U. S. 289.
5 Lawson v. Hewell, 118 Cal. 613; 49 L. R. A. 400; 50 Pac. 763; Hass v. Relief Association, 118 Cal. 6; 49 Pac. 1056; Robinson v. Templar Lodge, 117 Cal. 370; 59 Am. St. Rep. 193; 49 Pac. 170; Daughtry v. Knights of Pythias, 48 La. Ann. 1203; 55 Am. St. Rep. 310; 20 So. 712.
6 Sieverts v. Benevolent Association, 95 la. 710; 64 N. W. 671; Cohen v. Supreme Sitting, 105 Mich. 283; 63 N. W. 304; Strause v. Life Association, 126 N. C. 971; 54 L. R.
A. 60; 36 S. E. 352; rehearing denied, 128 N. C. 465; 54 L. E. A. 605; 39 S. E. 55; Hale v. Aid Union, 168 Pa. St. 377; 31 Atl. 1066.
1Kauffman v. Raeder, 108 Fed. 171; 54 L. R. A. 247; 47 C. C. A. 278.
2 Van Dusen-Harrington Co. v. Jnngeblut, 75 Minn. 298; 74 Am. St. Rep. 463; 77 N. W. 970.
3 Van Dusen-Harrington Co. v. Jungeblut, 75 Minn. 298; 74 Am. St. Rep. 463; 77 N. W. 970.
4 Cleveland Oil Co. v. Ins. Society, 34 Or. 228; 55 Pac. 435.
5 McCarthy v. McArthur, 69 Ark. 313; 63 S. W. 56.
6Underwood v. Ins. Co., 161 N. Y. 413; 55 N. E. 936.
7 Daun v. Brewery Co., L. R. 8 Eq. 155; MeDonough v. Marble Co., 112 Fed. 634; Nonotuck Silk Co. v. Fair, 112 Mass. 354.
8 National Bank v. Burkhardt, 100 U. S. 686.
9 Menage v. Rosenthal, 175 Mass. 358; 56 N. E. 579; Watkins v. Greene, 22 R. I. 34; 46 Atl. 38.
10 Boon v. The Belfast, 40 Ala. 184; 88 Am. Dec. 761; Louisville. etc., Co. v. Rogers, 20 Ind. App. 594; 49 N. E. 970; Benson v. Gray, 154 Mass. 391; 13 L. R. A. 262; 28 N. E. 275; Meloche v. Ry., 116 Mich. 69; 74 N. W. 301.
11Mowatt v. 'Wilkinson, 110 Wis. 176; 85 N. W. 661.
12 Withers v. Moore. 140 Cal. 591; 74 Pac. 159; reversing in banc, 71 Pac. 697.
13 Swift v. Petroleum Co., 141 Cal. 161; 74 Pac. 700; reversing in banc, 70 Pac. 470.
14 Stoddard v. Emery, 128 Pa. St. 436; 18 Atl. 339.
15 Independent School District v. Swearingen. 119 la 702; 94 N. W. 206.