3 Blackett v. Royal Exchange Assurance Co., 2 Cr. & J. 249, per Lord Lyndhurst; 3 Stark. Evid. 1036; Hawes v. Smith, 3 Fairf. 429; 2 Stark. Evid. 566; Greenl. Evid. § 280, 295. See Partridge v. Insurance Co., 15 Wall. 573 (1872).
4 Parkinson v. Collier, Park on Ins. 470; Yeats v. Pim, 2 Marsh. 141; Greenl. Evid. § 292; Blackett v. Royal Exchange Assurance Co., 2 Cr. & J. 244, 249, 250.
5 2 Stark. Evid. 527; Doe v. Benson, 4 B. & Al. 588; Frith v. Barker, 2 Johns. 327; Sleght v. Rhinelander, 1 Johns. 192; Thompson v. Ashton, 14 Johns. 316; Stoever v. Whitman, 6 Binn. 417; Henry v. Risk, 1 Dall. 265; Homer v. Dorr, 10 Mass. 26.
6 Ellmaker v. Elhnaker, 4 Watts, 89; Brackett v. Leighton, 7 Greenl. 385; Doe v. Lea, 11 East, 312.
§ 802. It is also a general rule, that a contract is to be expounded according to the law or custom of the place where
1 Doe v. Lea, 11 East, 313; 2 Stark. Evid. 455; 3 Stark. Evid. 1038; Sleght v. Rhinelander, 1 Johns. 192.
2 Doe v. Benson, 4 B. & Al. 588. In Hone v. Mutual Safety Ins. Co., 1 Sandf. 138, the question as to when evidence of usage is admissible was carefully considered; and the court in this case said: "It is one of the most embarrassing subjects with which we meet, to determine when and for what purposes evidence of a usage shall be received; and we can add our testimony to that of Judge Story, in the case of the Schooner Reeside, 2 Sumner, 567, as to the frequency of the attempts to construe and influence contracts by proof of usage.
"We have endeavored, by a careful consideration of the principles of law, and the adjudications on the subject, to ascertain the true ground upon which this usage must be admitted or rejected.
"We find it clearly settled, that a general usage, the effect of which is to control rules of law, is inadmissible. So of one which contradicts a settled rule of commercial law. In the application of this principle, in one instance, the usage rejected was to the effect that a bill or note payable to order, and indorsed specially, without adding the words, or order or bearer, ceased to be negotiable. Edie v. East India Co., 2 Burr. 1216. In another case, the universal usage in Boston was proved to be, that when a cargo was insured for a voyage out and proceeds home, and the proceeds were not returned, a portion of the premium was refunded to the insured; but the court refused to receive the usage to reduce the recovery on premium notes given upon such an insurance. Homer v. Dorr, 10 Mass. 26.
" In Frith v. Barker, 2 Johns. 327, a master of a ship claimed to recover freight on fifty hogsheads of sugar, from which, owing to the leakage of the vessel, the sugar washed out during the voyage, and the casks were empty on their arrival in this port. The master offered to prove that, by the usage of merchants at New York, freight was payable for the empty casks under such circumstances; and the court held it was not competent.
"On the other hand, there is a great variety of cases in which the courts have permitted evidence to be given, to show the meaning of terms in commerce and the arts, or of words and phrases peculiar to mercantile pursuits. This is generally spoken of as proof of usage; although in many cases it is rather the definition of technical language. Thus, without citing the cases at large, we will refer to the following instances, as illustrating the principle upon which they proceed. ' Roots' were proved not to include sarsaparilla, in the clause relative to average in a marine policy, the insurance being on sarsaparilla; the term 'skins,1 in a like instance, does not include bear-skins having the fur on them; the word ' outfits,' in policies on whaling vessels, includes one-fourth of the catchings, the catchings becoming virtually the it is made, where the actual intention of the parties in this respect is not expressly stated, but is to be inferred from the nature, objects, and occasion of the contract.1 Any ambiguity proceeds of a large portion of the outfits, and the like. So proof has been allowed of the meaning of the term 'sea-letter,' in policies at a particular port; the meaning of the word 'cargo,' in particular voyages and lines of trade; the customs of a particular trade in respect of convoy, the mode of unlading goods at the port of destination, the period of detention allowable at intermediate ports for landing parts of a cargo, the meaning of ' proceeds of goods shipped,' and the like of terms may be thus explained by the common signification of those terms in the country where it is made. Thus, "a pack of wool" may differ in weight in Yorkshire and Wiltshire, and the word would be construed to mean the one weight or the other, according to the place where the contract is made.1 So, also, the terms "cotton in bales" mean compressed bales in some places, and in others merely bags; and the meaning of the phrase would depend upon the place where the contract for the cotton was made.2 Again, where the lessee of a rabbit warren covenanted to leave on the warren 10,000 rabbits, for which the lessor was to pay £60 per thousand, it was held, that evidence was admissible to show that by the custom of the country the word "thousand," as applied to rabbits, meant one hundred dozen or twelve hundred.3 But if the law positively establish a particular measure, and prohibit the use of any other, as is the case with respect to corn in England, the contract will be understood to refer to such legal measure, whatsoever be the local usage to the contrary; for no usage can be permitted to supersede the law.4 So, also, a note made in England for ,£100, would mean £100 sterling, and a note made in America for the same nominal sum would be construed to mean £100 in American currency. So, if a contract be made in England for the sale of land in Jamaica, and the vendee agree to give ,£20,000 for the land, without specifying in what currency, in the absence of all expressions and circumstances intimating a different intention, the contract would be interpreted to mean that the price should be paid in English currency; although the difference between the English pound sterling and the Jamaica pound, exclusive of any premium on bills of exchange, is forty per cent.1 Marriage contracts and settlements also come within the same rule.2 So, where, in an action upon an unstamped agreement made at Jamaica, it appeared that by the law of that island a stamp was necessary to render it valid; it was held, that the action could not be maintained in England.3 Nor does it make any difference whether the contract be made between foreigners, or between foreigners and citizens;4 and ignorance of the foreign law will not release a party from a contract made in a foreign country.5