2 Plain and certain words of grant or contract cannot be varied or controlled by proof of a usage or custom at variance with their grammatical and obvious meaning. Goodyear v. Ogden, 4 Hill, 104; Mutual Safety Ins. Co. v. Hone, 2 Comst. 235; Swamscot Machine Co. v. Partridge, 5 Fost. 369; Linsley t). Lovely, 26 Vt. 123; Cooper v. Purvis, 1 Jones (N. C), 141; Stillman v. Hurd, 10 Tex. 109; Phillipps v. Briard, 1 H. & N. 21.
3 1 Greenl. on Evid. § 280, 281, 292; 2 Stark. Evid. 565; Birch v. Depeyster, 1 Stark. 210, and cases there cited; Smith v. Wilson, 3 B. & Ad. 728; Astor v. Union Ins. Co., 7 Cow. 202. When an ambiguity exists in a bought and sold note from its describing an article which does not exist, evidence by an expert to show how the article mentioned therein is ordinarily spoken of in trade and conversation, is competent in explanation of the ambiguity. Pollen v. Le Roy, 30 N. Y. 549 (1863).
4 Leeds v. Lancashire, 2 Camp. 205; Hartley v. Wilkinson, 4 Camp. 127; 1 Greenl. on Evid. § 283, and cases cited.
5 Pym v. Campbell, 6 El. & B. 370 (1856) ; 36 Eng. Law & Eq. 91.
6 Wallis v. Littell, 11 C. B. (n. s.) 369. And see Foster v. Jolly, 1 C. M. & R. 703.
7 Young v. Austen, Law R. 4 C. P. 553. And see Hoare v. Graham, 3 Camp. 57.
1 Free v. Hawkins, 8 Taunt. 92. An oral agreement is not admissible to show that a bill or note, absolute on its face, was not to be paid until the plaintiff had sold and applied thereon certain securities which the defendant had delivered him at the time of the bill. Abrey v. Crux, Law R. 5 C. P. 37 (1869). And see Young v. Austen, Law R. 4 C. P. 553; distinguished by Castrique v. Buttigieg, 10 Moore, P. C. 94.
2 Under'an agreement in writing to convey "the wharf and flats occupied by T. and owned by H.," parol evidence is admissible to show the extent of the land occupied by T. and owned by H. at the time of the agreement. Gerrish v. Towne, 3 Gray, 82 (1854). A written lease of the "Adams House" may be proved by parol to have been intended to include only so much of the building as was fitted up as a hotel, by the name of the "Adams House," and not the separate shops which occupied the whole of the ground floor except the entrance to the hotel. Sargent v. Adams, 3 Gray, 72 (1854). A deed of a tract of land, "known by the name of the mill spot," may be explained by parol evidence of what "the mill spot" was commonly reputed, at and before the time of the execution of the deed, to include. Woods v. Sawin, 4 Gray, 322 (1855). A description in a written contract of " a certain tract of land, called Mount Hope, containing about forty acres," may be shown by evidence of the acts of the parties to include a tract of seventy acres, known by that name to the parties. Old Colony Railroad Corp. v. Evans, 6 Gray, 25 (1856). And see Emery v. Webster, 42 Me. 204 (1856).
3 Edge v. Salisbury, Ambl. 70; Baylis v. Attorney-General, 2 Atk. 239; Goodinge v. Goodinge, 1 Ves. 231; Doe v. Hiscocks, 5 M. & W. 363, 367 ; Jeacock v. Falkener, 1 Bro. C. C. 295 ; Fonnereau v. Poyntz, ib. 473 ; Mackell v. Winter, 3 Ves. 540; Lane v. Earl Stanhope, 6 T. R. 345; Doe v. Huthwaite, 3 B. & Al. 632; 1 Greenl. on Evid. § 288; Woods v. Sawin, 4 Gray, 322; Noonan v. Lee, 2 Black, 499 (1862) ; Sturtevant v. Randall, 53 Me. 149 (1865) ; Waring v. Ayres, 40 N. Y. 357 (1869) ; Ben-' nett v, Pierce, 28 Conn. 315 (1859) ; Emery v. Webster, 42 Me. 204 (1856) ; Pope v. Machias Water Power Co., 52 Me. 535 (1864). Parol evidence is admissible to identify the subject-matter, and show what the grantor intended by "the west half of lot No. 76." Pettit v. Shepard, 32 N. Y. 97 (1865).
1 Kimball v. Myers, 21 Mich. 276 (1870).
2 1 Greenl. on Evid. § 288, and cases cited; 1 Phil. & Am. on Evid. 732 ; Doe v. Holtom, 4 Ad. & El. 76; Sanford v. Raikes, 1 Meriv. 646; Colbourn v. Dawson, 10 C. B. 765; 4 Eng. Law & Eq. 378; Goldshede v. Swan, 1 Exch. 154. Oral evidence is admissible to show that the word "barrel," used in a written contract, was meant by both parties to be a certain number of gallons. Miller v. Stevens, 100 Mass. 518 (1868).
3 Bywater v. Richardson, 1 Ad. & El. 508. See also Murley v. M'Der-mott, 3 Nev. & Per. 356; Jeffery v. Walton, 1 Stark. 267. See Story on Agency, § 79.
4 Waring v. Mason, 18 Wend. 425. And see Syers v. Jonas, 2 Exch. 111. In a sale in writing, oral evidence is admissible to show that the sale was by sample, and that the article delivered did not correspond with the sample. Pike v. Fay, 101 Mass. 134 (1869). In an action to enforce a contract for the sale of goods, the only legal evidence of which is an entry in the books of a broker employed to make this single contract, parol evidence is not competent to show that the contract thus stated, if within the broker's authority, was different from the contract actually made through him; but is admissible to show the extent of an agent's authority, and that the contract as thus reduced to writing differs from that which the broker was authorized to make. Coddington v. Goddard, 16 Gray, 436 (1860).
5 See Small v. Jenkins, 16 Gray, 155 (1860).
6 Thus parol evidence is admissible to show that, subsequent to the date of the contract, and before a breach of it, the parties made a new oral agreement, on a new and valuable consideration, enlarging the time of performance, and varying its terms. Emerson v. Slater, 22 How. 28 (1859), an important case, in which the authorities are carefully examined.
§ 824. Upon the same principle parol evidence of usage is permitted " to annex citizens" as it is termed; that is, to show those incidents and accessories which impliedly accompany the subject-matter of the agreement.1 Thus, a lessee, by deed, may introduce evidence of a local custom of the country, by which he is entitled to an away-going crop, although no such right be reserved in the deed ;2 for the custom does not contradict the express provisions of the deed, but only supplies evidence of the intention of the parties in respect to an implied and incidental right growing out of the contract. So, although a contract for the sale and delivery of specific articles is in writing, in an action to recover damages for its breach, the fact that at the time of making it the defendant was notified by the plaintiff of his object in entering into it, and that it was to enable him to fulfil a previous agreement with another party, may be proved by parol, as bearing on the question of damages.3 So, also, many conditions are affixed by mercantile usage to the taking of promissory notes and bills of exchange; and the usages of banks, known to the parties to a contract, are recognized as proper evidence to explain the intention of the parties.4 But no evidence will be admitted of any custom which is inconsistent with the express terms of the contract itself.5 Or, as it has been elsewhere stated, parol evidence of usage is generally admissible to enable the court to arrive at the real meaning of the parties, who are presumed to have contracted in conformity with it; but it is not admissible to contradict or vary the express stipulations restricting or enlarging the exercise and enjoyment of the customary right.6