2 M. & W. 440; Jones v. Littledale, 6 A. & E. (33 E. C. L. R.) 486. See also Robinson v. Mollett,L. R. 7 H. L.802; 44 L. J. (C. P.) 362, reversing Mollett v. Robinson, L. R. 5 C. P. 646, 7 lb. 84; 39 L. J. (C. P.) 290, 41 lb. 65.
(0) Parkinson v. Collier, Park on Ins. 47.
(p) Williams v. Jones, 5 B. & C. (11 E. C. L. R.) 108.
(z) Simpson v. Margitson, 11 Q. B. (63 E. C. L. R.) 23.
(a) Powell v. Horton, 2 Bing. N. C. (29 E. C. L. R.) 668. See also Johnson v. Raylton, 7 Q. B. D. 438; 50 L. J. (Q. B.) 753. Here evidence, that in the iron trade there is a custom that under a contract between a manufacturer of iron plates and a customer for the supply of them, the seller must, in the absence of stipulation to the contrary, supply plates of his own make, and that the purchaser is entitled to reject other plates if tendered, though of the quality contracted for, was held admissible.
(b) Johnson v. Usborne, 11 A. & E. (39 E. C. L. R.) 549; Graves v. Legg, 26 L. J. (Ex.) 316; 11 Ex.642.
(c) Evans v. Pratt, 3 M. & G. (42 E. C. L. R.) 759.
(d) Grant v. Maddox, 15 M. & W. 737; see also Myers v. Sarl, 3 E. & E. 306; 30 L. J. (Q. B.) 9.
But, as said by Lord Lyndhurst, C. B, in Blacket v. Royal Exchange Insurance Company, although "usage may be admissible to explain what is doubtful, it is never admitted to contradict what is plain." In this case, a policy of insurance, in the common form upon the ship-that is, "the body, tackle, apparel, ordnance, munition, boat, and other furniture of the ship," was sought to be qualified to the exclusion of boats slung on the ship's quarter, by proving a usage at Lloyd's to that effect. It is obvious that this usage ought to be rejected, as it was not to explain the policy, *or to introduce matter upon which it was silent, but was in direct variance with the words of the policy, and in plain opposition to the language it used (A). A contract was made with a shipowner, by a broker, to have a full cargo for the ship, the rates of freight for which would average 40s. a ton, and at least nine cabin passengers, passage money to average £75. The contract was fulfilled as to the cabin passengers, but the average rate of freight for the goods put on board was only 32s. a ton; but several steerage passengers were shipped whose passage money made up the average earnings of the ship to 40s. a ton. Evidence that the words cargo and freight in the voyage the ship was engaged in would include steerage passengers, and the net profit arising from their passage money, was rejected (i). The object of extrinsic evidence in these cases is to explain terms and modes of expression which, although belonging to the English language, are not intelligible to all who understand it, but have acquired, by usage, a definite sense and meaning known amongst a particular class of persons, which can be well ascertained by means of the testimony of those who are conversant with the peculiar use of those terms. The witnesses for this purpose may be *considered as the sworn interpreters of the language of commerce, art, or the place in which the contract is written. But beyond this the principle does not extend. If plain and ordinary terms and expressions, to which an unequivocal meaning belongs,
(e) Cuthbert v. Cummings, (Ex. Ch.) 24 L. J. (Ex.) 310; 11 Ex. 405.
(/) Miller v. Titherington, 30 L. J. (Ex.) 217; 6 H. & N. 278; affirmed in Ex. Ch. 31 L. J. (Ex.) 363; 7 H. & N. 954.
(g) Field v. Lelean, 30 L. J. (Ex.) 168, in Ex. Ch.; see Spartali v. Benecke, 10 C. B. (70 E. C. L. R.) 212.
(A) 2 C. & J. 244. See also Myers v. Sarl, 3 E. & E. 306; 30 L. J. (Q. B.) 9; Miller v. Titherington, 30 L. J. (Ex.) 217; Hayton v. Irwin, 5 C. P. I). 130.
(i) Lewis v. Marshall, 7 M. & G. (49 E. C. L. R.) 729.
6 81 which is intelligible to all, are used, that plain sense and meaning ought not to be altered by mercantile understanding and usage. To allow such alteration would be to make it legal to say one thing and mean another, and would render a writing useless. Therefore, parol evidence cannot be given to explain the meaning of the words "more or less" in a mercantile contract (k)} And although it may be deduced from the very terms of the rules of which we have been treating, that if the contract itself be unusual, evidence of the usage and custom of the trade in the course of which the unusual contract arose, ought not to be received to explain it (0).
(k) Cross v. Eglin, 2 B. & Ad. (22 E. C. L. E.) 106; see Moore v. Campbell, 10 Ex. 323; 23 L. J. (Ex.) 310.
1 Where qualifying words such as "more or less" or "about" are inserted in a contract it is understood that they are intended to provide for a reasonable variance one way or the other. Where a contract was made for " about 300 quarters (more or less)" of rye, 345 quarters was considered unreasonable excess : Cross v. Eglin, 2 B. & Ad. (22 E. C. L. R.) 106. On a contract for spars " say about 600," a tender of 496 was held a substantial compliance with the agreement. The use of the word "say" prefixed to "about" was said to indicate special care on the vendor's part to guard against an absolute promise as to quantity: McConnell v. Murphy, L. R. 5 P. C. 203. See Morris v. Levison, 1 C. P. D. 155; McLay v. Perry, 44 L. T. N. S. 152. The question has recently received careful consideration in the Supreme Court of the United States and the following rules were laid down: 1. Where goods are identified by reference to independent circumstances, such as an entire lot deposited in a certain warehouse, and the quantity is named with the qualification of " about" or " more or less " or words of like import, the contract applies to the specific lot; and the naming of the quantity is not regarded as in the nature of a warranty, but only as an estimate of the probable amount, in reference to which good faith is all that is required of the party making it. 2. When no such independent circumstances are referred to, and the engagement is to furnish goods to a certain amount, the quantity specified is material, and governs the contract. Here the addition of the qualifying words "about," "more or less" and the like is for the purpose of providing against slight and unimportant accidental variations. 3. If, however, in the last case the qualifying words are supplemented by other stipulations or conditions which give them a broader scope or a more extensive significancy, then the contract is to be governed by such added stipulations or conditions: Brawley v. United States, 96 U. S. 168. An agreement to sell " a cargo of old railroad iron, to be shipped per barque Charles William, . . . about 300 or 350 tons," was held to be complied with by delivery of as much as the vessel, being seaworthy and in good order, could carry, though only 227 tons: Pembroke Iron Co. v. Parsons, 5 Gray, 589. In Creighton v. Comstock, 27 Ohio St. 548 the contract was to deliver 23,000 feet of lumber; a delivery of 16,000 feet was held too large a discrepancy to be covered by the words " more or less." " More or less " or equivalent words will cover any variance not so gross as naturally to raise the presumption of fraud or radical mistake in the essence of the contract: Noble v. Googins, 99 Mass. 231. See also Schickle v. Chouteau, 10 Mo. App. 241; where a man contracts in his own name, evidence of a custom in Liverpool to send in brokers' notes, without disclosing the principal's name, cannot be received, in order to excuse the contractor from liability as having acted as a broker merely; and Alderson, B., said the custom offered to be proved was a custom to violate the common law of England (I).