The terms "usage" and "custom" with reference to trade are practically synonymous. It has been suggested that a usage is a method of doing business which the parties may be presumed to intend as part of their contract,1 while custom originates in usage and persists so long as to become law.2 The idea of "custom" as law is a survival of the English theory of the so-called local custom which was the name given by the king's courts to the law of the local courts; that is, to rules which were law in the local courts, but which were treated as facts in the king's courts.

To be regarded as a part of a transaction a custom must be shown to exist,3 as a certain and uniform custom, and as one which has been established for so long a time as to have been generally known and to be recognized as the established rule in such cases,4

21 Great Lakes Coal & Dock Co. y. Seither Transit Co., 220 Fed. 28; Thomas v. Guarantee Title & T. Co., 81 O.S."432, 26 L. R. A. (N.S.) 1210, 91 N. E. 183.

1 Eames v. H. B. Claflin Co., 239 Fed. 631, 152 C. C. A. 465.

2 Eames v. H. B. Claflin Co., 239 Fed. 631, 152 C. C. A. 465.

3 Alabama. Cole Motor Car Co. v. Tebault. 196 Ala. 382, 72 So. 21.

Florida. Gulf Coast Transportation Co. v. Howell, 70 Fla. 544, L. R. A. 1916D, 974, 70 So. 567.

Kansas. Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579.

Kentucky. Mowbray & Robinson Co. v. Kelley, 170 Ky. 271, 185 S. W. 1130.

Michigan. Saginaw Milling Co. v. Schram, 186 Mich. 52, 152 N. W. 945.

Oklahoma. Gilbert v. Citizens' Nat. Bank, - Okla. - , L. R. A. 1917A, 740, 160 Pac. 635.

Pennsylvania. Bubb v. Parker & Edwards Oil Co., 252 Pa. St. 26, 97 Atl. 114.

Washington. Wilkins v. Kessinger, 90 Wash. 447, 156 Pac. 389.

United States. Oelricks v. Ford, 64 U. S. (23 How.) 49, 16 L. ed. 534.

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

District of Columbia. Shortsleeves v. Capital Traction Co., 28 D. C. App. 365, 8 L. R. A. (N.S.) 287.

Iowa. Nelson v. C. F. Adams Co., 179 la. 586, 161 N. W. 645.

Maryland. Himmel v. Levinstein, - Md. - , 103 Atl. 848.

Minnesota. Stevens v. Wisconsin Farm Land Co., 124 Minn. 421, 145 N. W. 173.

Washington. Johns v. Jay cox, 67 Wash. 403, 39 L. R. A. (N.S.) 1151, Ann. Cas. 1913D, 471, 121 Pac. 864.

Wisconsin. Hinton v. Coleman, 45 Wis. 165.

4 United States. Oelricks v. Ford, 64 U. S. (23 How.) 49, 16 L. ed. 534.

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

Indiana. Rastetter v. Reynolds, 160 Ind. 133, 66 N. . 612.

or as one which is actually known to the party against whom it is invoked.5 It need not be immemorial.6 While language is occasionally used which seems to assume that a custom must be immemorial, this is an adaptation of the requirement laid down by the king's courts in England for proof of so-called local customs which were really the laws of the local courts. A prior custom which has been superseded by reason of the development of the business in question can not be regarded as a part of the transaction.7 If a custom is not established in the particular trade or business, it is not regarded as part of the contract unless the parties actually contracted with reference thereto.8 If the custom is a general one, all are presumed to know of it and to contract with reference to it.9 To be regarded as part of a contract, the usage or custom must not only be shown to exist, but it must have both of the following 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 can not be regarded as part of the contract. If the usage is neither actually nor constructively known to one of the parties to the contract, it is not binding upon him.10 A custom of certain employers to permit certain agents to incur expenses in livery hire does not impose such liability upon other employes.11 A custom of certain employers to pay the expense of the attendance of a physician upon their employes can not impose a liability upon other employers.12 The custom of a bank is not binding upon a party who deals with such bank in ignorance of such custom.13 A custom of a bank with reference to the ownership of checks deposited for collection is not binding upon one who deals with such bank in ignorance of such custom.14 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.15 A custom on the part of one who sells on credit to take a certain time to investigate the credit of those who buy from him, is not binding upon purchasers who do not know of such custom.16 A usage that government contracts contain a provision requiring the approval of material by the supervising architect before it is used is not a general custom, and one who makes a bid for supplying material for the performance of such a contract is not to be regarded as having contracted with reference to such usage.17 A custom to deliver goods upon the bank of the river and not upon a boat for transportation is held not to be binding upon a purchaser who does not know of such custom.18

Kentucky. Shaw v. Ingram-Day Lumber Co., 152 Ky. 329, L. R. A. 1915D, 145, 153 S. W. 431.

Michigan. Pennell v. Delta Transportation Co., 94 Mich. 247, 53 N. W. 1049.

Wisconsin. Zartner v. George, 156 Wis. 131, 52 L. R. A. (N.S.) 129, 145 X. W. 971.

5 Eames v. H. B. Claflin Co., 239 Fed. 631, 152 C. C. A. 465.

6 Banks v. Simpkins, 88 N. J. Eq. 1, 102 Atl. 680.

7 Bubb v. Parker & Edwards Oil Co., 252 Pa. St. 26, 97 Atl. 114.

8 Mullins Lumber Co. v. Williamson & Brown Land & Lumber Co., 246 Fed. 232, 158 C. C. A. 392; Puffer Mfg. Co. v. Yeager, 230 Mass. 557, 120 N. E. 97; Universal Oil & Fertilizer Co. v. Bur-ney, 174 N. Car. 382, 93 S. E. 912; Donaldson v. Brewster, 103 Wash. 65, 173 Pac. 1018.

9 Cormier v. H. H. Martin Lumber Co., 98 Wash. 463, 167. Pac. 1105.

10 England. Daun v. Brewery Co., L. R. 8 Eq. 155.

United States. Barnard v. Kellogg, 77 U. S. (10 Wall.) 383, 19 L. ed. 987; McDonough v. Marble Co., 112 Fed. 634.

Alabama. Edwards v. Kilgore, 192 Ala. 343, 68 So. 888; Cole Motor Car Co. v. Tebault, 196 Ala. 382, 72 So. 21.

Connecticut. Estes v. United Brotherhood of Carpenters, etc., 90 Conn. 426, 97 Atl. 326.

Maryland. Himmel v. Levinstein, - Md. - , 103 Atl. 848.

Massachusetts. Nonotuck Silk Co. v. Fair, 112 Mass. 354; Hall v. Paine, 224 Mass. 62, L. R. A. 1917C, 737, 112 N. E. 153; Aradalou v. New York, New Haven & Hartford R. Co., 225 Mass. 235, 114 N. E. 297; Puffer Mfg. Co. v. Yeager, 230 Mass. 557, 120 N. E. 97.

A usage or custom which applies only to certain classes of transactions can not be regarded as controlling other classes of transactions, even if analogous to those of the former classes.19 A custom that no compensation shall be paid to an architect for plans which are submitted in a competition and which are not used can have no application to his right to recover for plans which he submits at request and not in a competition20

Michigan. Schook v. Zimmerman, 188 Mich. 617, 155 N. W. 526; Tuttlo v. Embury-Martin Lumber Co., 192 Mich. 385, Ann. Cas. 1918C, 664, 158 N. W. 875.

Ohio. Metropolitan Bank & Trust Co. v. Newcomb, 2 Ohio App. 56, 25 O. C. D. 327.

Virginia. Scott's Ex'r v. Chesterman, 117 Va. 584, 85 S. E. 502.

11 Nelson v. C. F. Adams Co., 179 la. 586, 161 N. W. 645.

12 Indiana Die Casting Development Co. v. Newcomb, 184 Ind. 250, 111 N.

E. 16.

13 Calhoun v. AinsWorth, 118 Ark.

316, L. R. A. 1915E, 395, 176 S. W. 316.

14 American Savings Bank & Trust Co. v. Dennis, 90 Wash. 547, 156 Pac 559.

15 National Bank v. Burkhardt, 100 U. S. 686, 25 L. ed. 766.

16 Bowser v. Fountain, 128 Minn. 198, L. R. A. 1916B, 1036, 150 N. W. 795.

17Puffer Mfg. Co. v. Yeager, 230 Mass. 557, 120 N. E. 97.

19 Universal Oil & Fertilizer Co. v. Burney, 174 N. Car. 382, 93 S. E. 912.

19 Rice v. Sheldon, 38 R. T. 161, 94 Atl. 711.

20 Rice v. Sheldon, 38 R. I. 161, 94 Atl. 711.

A custom must be reasonable.21 A custom that the actual rating of a vessel shall be determined by the entry upon the register of the insurance company is invalid.22 A custom which makes the statement of the consignee and of the person for whom he ordered the goods, conclusive as against the shipper is unreasonable.23

A custom in violation of the law can not have any legal effect, and it can not be regarded as a part of the contract between the parties.24