"Looking at the usage relied upon in the present case, and taking it to have been found by the jury to be well established by the proof, as a general usage of the dealers in similar commodities in Boston, and finding the same is not repugnant to any express stipulation in the contract of the parties; without any disposition on the part of the court to extend the doctrine of local usages beyond the adjudicated cases, yet we have not felt authorized to reject the evidence offered in the present case."
1 Bowen v. Stoddard, 10 Met. 380. Hubbard, J., said in this case: "There was an attempt at the trial to prove that it was the usage among the merchants of New Bedford and Fairhaven, engaged in the whaling trade, to accept the bills of their masters drawn for supplies furnished abroad. But the evidence fell short of establishing it. The proof reached no further than this; that there was such confidence subsisting between the owners and masters, that bills drawn on the owners for supplies are generally accepted; but that the owners claim the right to refuse them, if from any cause they doubt the integrity of the master in the application of the funds received by him. The practice, it is said, has hitherto been found convenient; but this convenience results from the integrity of the masters, and the honorable character of the owners. Still, if it were more clearly established as a usage-, yet it is not such a one as can charge the owners as acceptors; for a usage, to be legal, must be reasonable as well as convenient; and that usage cannot be reasonable which puts at hazard the property of the owners at the pleasure of the master, by making them responsible as acceptors on bills drawn by him, and which have been negotiated on the assumption that the funds were needed for supplies or repairs; and no evil can flow from rejecting such a usage; because owners, who have confidence in the judgment and discretion, as well as integrity of their shipmasters, can give them, at their pleasure, a limited authority to draw, which will furnish them with credit, and protect them from imposition." See also Jordan v. Meredith, 3 Yeates, 318.
2 Cunningham v. Fonblanque, 6 C. & P. 44; Hall v. Benson, 7 C. & P. 711; Atkins v. Howe, 18 Pick. 16; Singleton v. Hilliard, 1 Strob. 203. See Cope v. Dodd, 13 Penn. St 33; United States v. Buchanan, 8 How. 83.
§ 799. In respect of the usages of the stock exchange, it has become settled law, that where a contract for the purchase and sale of shares has been entered into between individuals through their respective brokers, or with the intervention as purchasers or sellers of jobbers, members of the stock exchange, the lawful rules and usages of the exchange are incorporated into and become part and parcel of all such contracts; and the rights and liabilities of individuals, parties to any such contracts, are determined by the operation upon the contracts of these rules and usages.3
§ 800. If, however, the parties to a contract have previously dealt together in a certain manner, following a particular usage or custom, such usage may be given in evidence to interpret their intentions and understanding, although it be confined to them individually.4 Thus, where the usage of a bank, not to transmit checks by mail, but by a certain steamboat, was well known to a party drawing a check, it was held, that he must be supposed to have made such usage a part of any arrange-
It is for this reason that a usage or construction given to particular words in Boston, Mass., will not affect a policy of insurance upon a vessel made at Rockland, Maine, unless such usage or construction is known to the parties, or is shown to exist at the latter place. Cobb v. Lime Rock F. & M. Ins. Co., 58 Me. 326 (1870).
1 Rogers v. Mechanics' Ins. Co., 1 Story, 606; Renner v. Bank of Columbia, 9 Wheat. 581; Taunton Copper Co. v. Merchants' Ins. Co., 22 Pick. 108; Child v. Sun Mutual Ins. Co.,'3 Sandf. 26.
2 Austill v. Crawford, 7 Ala. 335.
3 Bowring v. Shepherd, Law R. 6 Q. B. 309 (1871), Kelly, C. B.; Grissell v. Bristowe, Law R. 4 C. P. 36; Coles v. Bristowe, Law R. 4 Ch. 3; Davis v. Haycock, Law R. 4 Ex. 373.
4 Loring v. Gurney, 5 Pick. 15; Bridgeport Bank v. Dyer, 19 Conn. 136; Bodfish v. Fox, 23 Me. 90; Bourne v. Gatliff, 11 CI. & Finn. 45-70.
§ 801. If, however, the terms employed in a contract be inconsistent with the construction which custom or usage require, they must be understood in the sense in which they were obviously employed.2 So, also, if plain and ordinary terms and expressions be used, to which no local nor technical and peculiar meaning be attached, they cannot be altered by evidence of a mercantile usage. For though usage may be admitted to elucidate what is doubtful, it is not admissible to contradict what is plain.8 Thus, where a policy of insurance was, by its terms, to continue on a ship until she was "moored twenty-four hours, and on the goods till safely landed;" it was held, that evidence of the usage that the risk on the goods, as well as on the ship, expired in twenty-four hours, was inadmissible.4 So, also, where words have a known legal meaning, as the technical words in a deed, they cannot be varied by usage,5 unless such usage be specially referred to in the contract itself; or unless the words be explained in the contract so as to conform to the usage.6 Thus, where a demise was made of lands, to be held from the feast of St. Michael, which must be taken, legally, to mean from New Michaelmas; it was held, that evidence of usage and custom could not be introduced to show that Old Michaelmas was intended.1 But such evidence would he admissible on a mere letting by parol.2
1 Bridgeport Bank v. Dyer, 19 Conn. 136.
2 3 Stark. Evid. 1036; 2 Stark. Evid. 452, et seq.; Dickinson v. Lilwall, 4 Camp. 279; Gibbon v. Young, 8 Taunt. 260; Lewis v. Thatcher, 15 Mass. 433; Webb v. Plummer, 2B. & Al. 746; 2 Phil. Evid. 45, 46; Hotham v. East India Co., 1 T. R. 638.