§ 794. The proper office of a usage or custom is not to contradict the terms of a contract, but to afford an interpretation and explanation of the otherwise indeterminate intentions of the parties.4 In the interpretation of a contract, the usage or custom of trade may be resorted to, not only to explain the meaning of terms to which a peculiar and technical meaning is thereby affixed, but also to supply evidence of the intentions of the parties in respect to matters with regard to which the contract itself affords a doubtful indication, or perhaps no indication at all.1 Thus, evidence of usage was held to be admissible to show that the term "days" in a bill of lading meant "working days;" 2 and that a contract to pay a certain sum "per day" for labor and services was an agreement to pay such sum for every ten hours' work,3 and that the word" town" included the vicinity of the place.4 So, where a pauper and other persons agreed in writing to "serve B. & Co." for a certain length of time and for certain prices, and "to lose no time on our own account, to do our work well, and behave ourselves in every respect as good servants," and on trial it appeared that the pauper had occasionally absented himself on holidays during the year, it was held, that the custom of persons employed in the particular trade, under contracts like that of the pauper, to have certain holidays in the year, might properly be inquired into to define the exact terms of the particular contract.5 So, where bought and sold notes are given on a sale of goods, in an action for the price, it may be shown that by usage of trade all sales of that specific article are by sample, although not so expressed in the notes.6 So, also, where, in a charter-party, the charterer engaged that the vessel should be unloaded at a certain average rate per day, and that, if detained for a longer period, he would " pay for such detention at the rate of £5 per diem, to reckon from the time of the vessel being ready to unload, and in turn to deliver" it was held, that evidence was admissible to show that by usage of trade the words, "in turn to deliver" had a peculiar meaning.7 So, also, where it appeared that, by the usage of the banks at Washington, four days' grace were allowed on bills and promissory notes, it was held that demand and notice given in accordance with such usage would bind the indorser, - on the ground that where bills and notes are made payable at a certain bank, it is presumed that the parties intend that demand and notice shall be given according to the usage of such bank.1
1 Morrell v. Frith, 3 M. & W. 404. Baron Parke said: "The construction of a doubtful instrument itself is not for the jury, although the facts by which it may be explained are." In this case, the case of Lloyd v. Maund, 2 T. R. 760, in which a contrary rule was laid down, is said not to be law. See also Edwards v. Goldsmith, 16 Penn. St. 43; Bomeisler v. Dobson, 5 Whart. 398. See also Eaton v. Smith, 20 Pick. 150; Bradley v. Wheeler, 44 N. Y. 496 (1871). The effect of a subsequent contract upon a pre-existing one is a question for the court to determine from their terms. Cocheco Bank v. Berry, 52 Me. 293 (1864).
2 Short v. Woodward, 13 Gray, 86 (1859).
3 School District v. Lynch, 33 Conn. 330 (1866). The construction of a written contract is a question of law, to be decided by the court. Randall v. Thornton, 43 Me. 226 (1857); Nash v. Drisco, 51 Me. 417 (1864); but it is for the jury alone to determine from all the evidence, what was said and done by the parties to a verbal contract. Guptill v. Damon, 42 Me. 271 (1856). Where the contents of a written contract which is lost, are proved by parol, without any copy, its construction must be determined by the jury. Moore v. Holland, 39 Me. 307 (1855). The construction of a contract contained in letters is a question of law for the court. Smith v. Faulkner, 12 Gray, 251 (1858).
4 And when a contract is plain in its terms, it is not to be controlled by evidence of usage. Barnard v. Kellogg, 10 Wall. 383 (1870); Stagg v. Connecticut Ins. Co., ib. 589. See also Dodd v. Farlow, 11 Allen, 426.
1 Hutton v. Warren, 1 M. & W. 475.
2 Cochran v. Retberg, 3 Esp. 121. 3 Hinton v. Locke, 5 Hill, 437.
4 Steger v. Dwyer, 31 Iowa, 20 (1870).
5 The Queen v. Stoke-upon-Trent, 5 Q. B. 303.
6 Syers v. Jonas, 2 Exch. 111.
7 Robertson v. Jackson, 2 C. B. 413.
§ 795. Usage, therefore, is admissible for the purpose of determining the real intentions and understanding of the parties, where they are not determined by the actual terms of the contract. But inasmuch as the actual terms employed in a written contract afford the most certain and determinate evidence of the intentions of the parties, usage is not admissible to contradict or supersede the positive and definite provisions secured thereby, but only to explain whatever is indeterminate in their expression.2 And much caution is observed by the courts in allowing evidence of usages which do not agree with the apparent provisions of the contract.3 When, therefore, it was attempted to establish a custom that the owners of packet vessels between New York and Boston should be liable only for damage occasioned by their own neglect, it was held that this was not admissible to vary the terms of a bill of lading by which goods were to be delivered in good order and condition, "the dangers of the seas only excepted."4 Besides, the pre-
1 Mills v. Bank of U. S., 11 Wheat. 431, and also Renner v. Bank of Columbia, 9 Wheat. 581; Bank of Washington v. Triplett, 1 Peters, 25; Chicopee Bank v. Eager, 9 Met. 583.
2 Hone v. Mutual Safety Ins. Co., 1 Sandf. 137.
3 Schooner Reeside, 2 Sumner, 567.
4 Schooner Reeside, 2 Sumner, 567. In this case Mr. Justice Story, in delivering judgment, said: "I own myself no friend to the almost indiscriminate habit, of late years, of setting up particular usages or customs in almost all kinds of business and trade, to control, vary, or annul the general Labilities of parties under the common law, as well as under the commercial law. It has long appeared to me, that there is no small danger in admitting such loose and inconclusive usages and customs, often unknown to particular parties, and always liable to great misunderstandings and misinterpretations and abuses, to outweigh the well-known and well-settled principles of law. And I rejoice to find, that, of late years, the courts of law, both in England and in America, have been disposed to narrow the limits of the operation of such usages and customs, and to discountenance any further extension of them. The true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character. It may also be admitted to ascertain the true meaning of a particular word, or of particular words in a given instrument, when the word or sumption is, that when the terms of a contract are reduced to writing, and are inconsistent with the usage, the parties agree to waive the usage.1