There is a strong and increasing disinclination of the courts to allow the general laws of the country to be varied by proof of local usages. Such a usage is binding only on the ground that the party sought to be charged contracted with reference to it. The evidence must be such as to clearly authorize the presumption that he had a knowledge of it. It must be of such age, ing. A lease for seven years contained a clause "that the tenant should, during the term, consume with stock on the farm all the hay, straw, and clover grown thereon, which manure should be used on the farm; and should, in the last year of the term, leave not less than fourteen acres of land, summer fallowed, manured with a full quantity of manure, and sown in good time for sheep feed." But there was a custom in the parish that an outgoing tenant who, on coming in, had paid for the straw, was entitled to be paid for it on going out, which payment on coming in had in fact been made by the plaintiff. It was held that the provision in the lease did not prescribe anything to be done with *the straw on quitting, and that the custom bound the outgoing tenant to leave the straw, and entitled him to be paid for it (e). But in a case where, by the custom of the country, the outgoing tenant was entitled to an allowance for foldage from the incoming tenant, but the lease under which the former had held specified certain payments to be made by the incoming to the outgoing tenant at the time of quitting the premises, among which there was not included any payment for foldage; the Court considered that the terms of the lease excluded the custom, and that the outgoing tenant was not entitled to any allowance in respect of foldage (f).
(e) Muncey v. Dennis, 26 L. J. (Ex.) 66; 1 H. & N. 216.
(/) Webb v. Plummer, 2 B. & Ald. 746; see Roberts v. Barker, 1 C. & M. 808. In Tucker v. Linger, 21 Ch. Div. 18; 51 L. J. (Ch.) 713, a custom for the tenant to take away and sell flints, which came to the surface by ploughing, was held not inconsistent with a reservation to the lessor of "all mines and minerals, sand, quarries of stone, brickearth, and gravel pits." such uniformity of observance, such certainty and fixedness of character, and of such notoriety, that a jury would feel clear in saying that it was known to the party sought to be affected by it: Caldwell v. Dawson, 4 Mete. (Ky.) 121. Proof of usage can only be received to show the intention or understanding of the parties in the absence of a special agreement: Fay v. Strawn, 32 111. 295; Meaher v. Luf kin, 21 Tex. 383.-s.
Parol evidence is admissible to annex customary incidents to written contracts, not only between landlord and tenant, but in commercial and other transactions of life in which known usages have been established.
Thus, a person employing a broker on the Stock Exchange impliedly gives him power to act in accordance with the rules there established, although he makes no mention of them in his instructions, *and although he may even be ignorant of them (g). But of course the rules by which he so gives the broker authority to act, must be rules existing when the contract is made, not such as are made after it is completed (h). Thus also an agreement in writing to serve from 11th November, 1815, to 11th November, 1817, at certain wages, expressed as follows, "We" (i. e., the servants) "engage to lose no time on our account, to do our work well and behave ourselves in every respect as good servants," was considered consistent with a usage in the particular trade for servants, under similar contracts, to have certain holidays and Sundays to themselves (i).
In another instance there was an agreement in writing between a master and a servant in the woollen and mohair cloth manufacture, that the plaintiff should serve the defendant therein at £150 a year, provided that if, at the end of the year, the defendant had found that the plaintiff had done sufficient business to justify him in making up his *salary to £180, he would make him a donation of £30. A general custom in the trade was proved that either party might determine the service upon giving the other a month's notice; and the question was, whether the terms of the agreement were such as to exclude the custom. The Court clearly thought that there was not anything in it to have that effect. Crowder, J., observed that the agreement did not contain any stipulation as to the time of quitting the service, or as to the term of dismissal. If it had contained such stipulations, then, according to the authorities, the custom would have been excluded, for the question in all these cases is, whether the incident which it is sought to import into the contract is consistent with the terms of the written instrument (k).
(g) Sutton v. Tatham, 10 A. & E. (37 E. C. L. R.) 27. See Bayliffe v. But-terworth, 1 Exch. 425; Stewart v. Cauty, 8 M. & W. 160; Bay ley v. Wilkins, 7 C. B. (62 E. C. L. R.) 886; Taylor v. Stray, 26 L. J. (C. P.) 185, 287; 2 C. B. N. S. (89 E. C. L. R.) 175; Smith v. Lindo, 27 L. J. (C. P.) 335; Grissell v. Bristowe, L. R. 4 C. P. (Ex. Ch.) 36, reversing lb. 3 C. P. 112; s. c. 37 L. J. (C. P.) 89; 38 lb. 10 (Ex. Ch.). But the custom of the Stock Exchange is not binding unless reasonable and legal. Neilson v. James, 9 Q. B. D. 546; 51 L. J. (Q. B.) 369.
(h) Westropp v. Solomon, 8 C. B. (65 E. C. L. R.) 345.
(i) R. v. Stoke-upon-Trent, 5 Q. B. (48 E. C. L. R.) 303.
For the same reason, in a case where it was proved that in the tobacco trade whenever a sale of tobacco takes place, and the written contract of sale contains no stipulation on the subject of samples, but samples are actually delivered, a usage prevails to consider the vendor as agreeing that the bulk shall correspond with the sample; and the question in the case was, whether the usage was excluded by implication; the Court of Exchequer decided that the usage might be proved, annexing thereby an additional term to the written contract not inconsistent with it (I). One more instance of a *mercantile contract to which, although in writing, a customary usage has been annexed, will suffice. A bill of lading provided that goods should be delivered to the consignee or his assigns at Liverpool, he or they paying freight for the same, 5/8 of a penny per lb., with primage and average accustomed. The shipowner sued the indorsee of the bill of lading, who had accepted the goods, to recover the freight and primage, when the latter was allowed to prove a custom at Liverpool by which lie was entitled to a deduction of three months' discount from the freight. "In all contracts " (said Coleridge, J., delivering the judgment of the Court), "as to the subject-matter of which known usages prevail, parties are found to proceed upon the tacit assumption of these usages; they commonly reduce into writing the special particulars of their agreement, but omit to specify these known usages, which are included, however, as of course, by mutual understanding: evidence, therefore, of such incidents is receivable. The contract in truth is partly express and in writing, partly implied or understood and unwritten. But, in these cases, a restriction is established on the soundest principle, that the evidence received must not be of a particular which is repugnant to, or inconsistent with, the written contract. Merely that it varies the apparent contract is not enough to exclude the evidence; for it is impossible to add any material incident to the written