(v) Macdonald v. Longbottom, 1 E. & E. (102 E. C. L. R.1 977; 28 L. J. (Q. B.) 293; in Exch. Ch, 1 E. & E. (102 E. C. L. R.) 987; 29 L. J. (Q. B.) 256.
For the same reason, when the terms of a written *contract signed by the defendant were, "in consideration of my entering on your employ at such a salary," etc, not specifying what the employment was, evidence that the defendant being in the plaintiff's service, a vacancy in another department of his business occurred, which the defendant undertook to fill, was admitted to show that it was this vacancy to which the terms of the written contract referred (x).
There is one exception, indeed, engrafted on the rule which forbids the reception of parol evidence for the purpose of qualifying the sense of a written contract; it occurs where parties have contracted with reference to some known and established usage. In such cases the usage is sometimes allowed to be engrafted on the contract, in addition to the express written terms. When they have so contracted, the reference in their minds to the usage is similar to that reference which exists in all men's minds (when making a contract) to the general law. In the latter case they intend that where their contract is silent, their rights shall be those which the general law annexes to the stipulations which they have expressed; and in the former they intend that the rules which the usage of the place or trade annexes, shall regulate their rights in those particulars in which their agreement is silent. In both cases they can exclude the general law or the *usage by their stipulations, and, in both, are liable to the general law or to the usage where their contract does not exclude their operation (y), by showing, expressly or impliedly, that
(x) Mumford v. Gething, 29 L. J. (C P.) 105.
(y) Senior v. Armitage, 1 Holt, N. P. (3 E. C. L. R.) 197; Hutton v. Warren, 1 M. & W. 466. 68 they did not intend to be bound by it. The notoriety of the custom makes it part of the contract. For the custom may be so universally followed in the place or trade in which the contract was made, that no one can be supposed to have contracted without looking upon it as part of his contract (z).1
Upon such reasonings it was held, in the leading case of Wigglesworth v. Dallison (a), where a lease of land under seal was made for a fixed term of years, that a custom of the parish in which the land lay, that the tenant should, after the expiration of the term, have the way-going crop, was obligatory on the landlord; that custom not altering or contradicting the agreement in the case, but only superadding a right as consequential to the taking. Very similar to this was the equally leading case of Hutton v. Warren (b), where the plaintiff had held under a lease by deed which had expired, but, continuing to occupy without further stipulation, was, according to law, bound by the terms of the expired lease. There was a covenant in the lease, that he would consume on the farm *three-quarters of the hay and straw raised thereon, and on certain other property not comprised in the lease, and would leave for the landlord such of the manure thence arising as was not used upon the farm, receiving a reasonable price for it. There was also a custom of the neighborhood that the tenant of a farm should receive from the landlord or incoming tenant a reasonable allowance for seed and labor bestowed on the arable land in the last year of his tenancy, and should leave the manure for the landlord if he would purchase it. The Court considered that in this case the only difference material to the question between the covenant and the custom was that the covenant obliged the tenant to spend on the farm more than its own produce upon being paid for it, which was not incompatible with the custom, but virtually left it in its full operation.
(z) Queen v. Stoke-upon-Trent, 5 Q. B. (48 E. C. L. R.) 303. (a) Dougl. 201; 1 Smith, L. C. 594, 8th ed. (b) 1 M. & W. 466.
1 A usage of trade, when adopted by the implied understanding of the parties, is as obligatory as if incorporated, provided such usage is not repugnant to nor inconsistent with the terms of the contract, and is not inconsistent with existing rules of law: Appleman v. Fisher, 34 Md. 540; Lamb v. Klaus, 30 Wis. 94; Schenck v. Griffin, 38 N. J. (Law) 462; Insurance Co. v. Wright, 1 Wall. (S. C.) 456; Deshler v. Beers, 32 111. 368; Leonard v. Peeples, 30 Ga. 61. Usage of a particular trade is inadmissible to affect the construction of a contract, unless notice of it can be brought home to the party against whom it is invoked: Martin v. Maynard, 16 N. H. 165. Evidence of custom cannot control an express contract, unless the attendant circumstances imply that the parties contracted with reference to it: Rafert v. Scroggins, 40 Ind. 195. Usage is not allowed to engraft on a contract any obligation inconsistent with the law: Haskins v. Warren, 115 Mass. 514; and see Bindskoff v. Barrett, 14 Iowa, 101; Boody ». Rutland R. R. Co., 3 Blatch. 25; Mealier v. Lufkin, 21 Tex. 3S3; Wallace v. Morgan, 23 Ind. 399; Fay v. Strawn, 32 111. 295; Bliss v. Ropes, 9 Allen, 339; Sturges v. Buckley, 32 Conn. 18, 265; Fox v. Parker, 44 Barb. 541; Lombardo v. Case, 45 lb. 95; Overman v. Iloboken City Bank, 30 N. J. 61; Exchange Bank v. Cookman, 1 West Va. 69; Detwiler v. Green, lb. 109; Lowe v. Lehman, 15 Ohio St. 179; Niagara Co. Bank v. Baker, lb. 68; Thompson v. Riggs, 5 Wall. (S. C.) 663; Dodd v. Farlow, 11 Allen, 426; Saint v. Smith, 1 Cold. 51; Barnes v. Ingalls, 39 Ala. 193.-s.
But the Courts never admit evidence of an usage incompatible with the written contract; for, in the words of Mr. Baron Alderson, in the case of Clarke v. Rov-stone (c), "Where a stipulation is inconsistent with the custom of the country, the contract must prevail and the custom of the country must be excluded." In these cases it appears to be simply a question whether the words of the contract themselves sufficiently disclose the full import of the contract; if so, no *custom can vary it, and no evidence of custom is admissible.