But a tenant may avail himself of a local custom to take an away-going crop after the expiration of his term under a lease, although the terms of holding during the continuance of it are inconsistent with the custom, if it contain no stipulations as to the mode of quilting (d). For it is evident that the rights of the landlord and tenant may be governed by the terms of the agreement during the tenancy, and by the terms of the custom immediately afterwards.1
(c) 13 M. & W. 752.
(d) Holding v. Piggott, 7 Bing. (20 E. C. L. R.) 465.
1 Thus in Coit v. Ins. Co., 7 Johns. 385, evidence was admitted to show that, by general understanding, the word "roots" in New York policies of insurance, was limited to roots perishable in their own nature, and therefore excluded sarsaparilla; and in Astor v. Ins. Co., 7 Cow. 202, the usage offws and skins was admitted to show the meaning of those words in a policy; and other instances in whicfi usage was similarly permitted, by way of explanation, will be found in Taylor v. Briggs, 2 C. & P. (12 E. C. L. R.) 525; Smith v. Wilson, 3 B. & A. (23 E. C. L. R.) 728; Baker v. Ludlow, 2 Johns. Cas. 289; Macy v. Ins. Co., 9 Mete. 362; Putnam v. Tillotson, 13 lb. 517; Eyre v. Ins. Co., 5 W.
& S. 116; Allegre v. Ins. Co., 6 Harr. & J. 408; Allegre's Adm'rs v. Maryland Ins. Co., 2 Gill & J. 136. So, in a late case, where a vessel was libelled for freight of flour, the respondents proved that it had been damaged by being stowed in the hold on the top of moist sugar, and the libellants were permitted to show an established custom of storage in general ships from New Orleans to the northern ports-" it being, of course, well understood by the respondents that their flour would be thus shipped, unless they gave instructions to the contrary, they must be deemed to have assented to the mode of shipment:" Baxter v. Leland, 1 Blatch. 526. Evidence of a usage is not, however, admissible when the meaning is certain and not doubtful: Gross v. Criss, 3 Gratt. 262; Macomber v. Parker, 13 Pick. 176; Brown v. Brown, 8 Mete. 577; Sleght v .Rhinelander, 1 Johns. 192, reversed on another point in 2 lb. 531; nor where it will contradict the written contract, as where a policy was made in the usual form upon the ship, her tackle, apparel, boats, etc.. evidence of usage that the underwriters never pay for the loss of boats slung on the quarter was held as inadmissible: Blackett v. Ass. Co., 2 0. & J. 244; and to the same effect are Sch. Reeside, 2 Sum. 568; Turney v. Wilson,
7 Yerg. 340; Allen v. Dykers, 3 Hill, 593; Hinton v. Locke, 5 lb. 437. And it has also been said that a usage will not be recognized in a court of law unless it be reasonable, and adapted to increase trade and promote fair dealing between the parties: Maxcy v. Ins. Co., 9 Mete. 363; Bowen v. Stoddard, 10 lb. 381. The student will find the cases upon this subject collected, and the distinctions carefully noticed, in the American note to Wigglesworth v. Dallison, 1 Smith's L. C. 928. The later cases show a disposition rather to restrain than to enlarge the introduction of such evidence: Donnell v. Columbia Ins. Co., 2 Sum. 377; and under any circumstances it is said that a usage must not be proved by isolated instances, but be so certain, uniform, and notorious, that it must probably have been understood by the parties as entering into the contract: Cope v. Dodd, 13 Pa. St. 33; Nichols v. De Wolf, 1 R. I. 277.-R.
The following example relative to annexing a custom to the stipulations in a lease is also well worth observWhen the terms of a contract are clear, evidence of usage is inadmissible to vary its effect: George v. Bartlett, 22 N. H. 496; Catlin v. Smith, 24 Vt. 85; Wadsworth v. Alcott, 6 N. Y. 64. In the absence of clear stipulations in contracts, usage of trade or business is admissible to show the intention of the parties: Leach v. Beardslee, 22 Conn. 404; Dixon v. Dunham, 14 111. 324. If it be shown or may be fairly presumed that the parties to a contract entered into it in reference to a custom existing in the city where they did business, and where they contracted, the general law must give way to the custom: Fulton Ins. Co. v. Milner, 23 Ala. 420; Soutier v. Kellerman, 18 Mo. 509. The custom must be of such extent, universality, and antiquity as to warrant the conclusion that it was known to the contracting parties, and that they made their contract with reference to it: Dixon v. Dunham, 14 111. 324; Adams v. Otterback, 15 How. 539. It must be uniform, known, and established, and whether it is so is a question of fact for the jury: Farnsworth v. Chase, 19 N. H. 534. To vary the ordinary meaning of plain words in a contract, the evidence must show a special custom, precise, definite, and universal where it exists: Steward v. Scudder, 24 N. J. 96. Proof of a local usage can never be received to vary the construction that the law would otherwise give to a contract, unless it is clearly proved that its existence was known to the parties, and that their contract was made with reference to it: Wheeler v. Newbould, 5 Duer, 29; Martin v. Maynard, 16 N. H. 165; Steele v. McTyer, 31 Ala. 667. No custom, however general, can be given in evidence to vary or control the express terms of a contract: Caldwell v. Meek, 17 Ilk 220; Wheeler v. Nurse, 20 N. II. 220. It cannot be laid down as a positive rule that more than one witness is required to prove a usage : Partridge v. Forsyth, 29 Ala. 200; contra, Bissell v. Ryan, 23 111. 566. An isolated instance is not sufficient, nor the custom of one person: Burr v. Sickles, 17 Ark. 428. A usage must be notorious, certain, uniform, reasonable, and legal: Townsend v. Whitby, 5 Harring. 55. And see Oelricks v. Ford, 23 How. 49; Dalton v. Daniels, 2 Hilt. 472; Given v. Charron, 15 Md. 502; Berry v. Cooper, 28 Ga. 543; Shackelford v. New Orleans R. R. Co., 37 Miss. 202. It can be proved only by witnesses who have had actual experience of it, not by their own opinions: lb. A general custom or a special custom affecting the particular locality or trade, if proved, will be the law of the contract: Hursh v. North, 40 Pa. St. 241. A custom of the country which sanctions any contrivance by which creditors can get more than legal interest is bad: Greene v. Tyler, 39 lb. 361. When a custom is so universal and of such long standing that all men are presumed to know it, the Court will take judicial notice of it. Such is the custom of banks to allow their customers to withdraw their deposits in parcels: Munn v. Burch, 25 111. 35.