his own account, and do his work well and behave himself in all respects as a good servant," extrinsic evidence was received to show that, by the custom of his trade, such a party was entitled to certain holidays.1 "It has long been settled that in commercial transactions extrinsic evidence of custom and usage is admissible to annex incidents to written contracts in matters with respect to which they are silent. The same rule has also been applied to contracts in other transactions of life, in which known usages have been established and prevailed; and this has been done upon the principle of presumption that in such transactions the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but to contract with reference to those known usages. "Mercantile contracts are very commonly framed in a language peculiar to merchants; the intention of the parties, though perfectly well known to themselves, would often be defeated, if the language were strictly construed according to its ordinary import in the world at large. Evidence, therefore, of mercantile custom and usage is admitted in order to expound it, and arrive at its true meaning. Again, in all contracts as to the subject-matter of which a known usage prevails, parties are found to proceed with the tacit assumption of those usages; they commonly reduce into writing the special particulars of their agreement, but omit to specify those 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

1 R. v. Stoke-upon-Trent, 5 Q. B. 303.

2 Parke, B., 1 M. & W. 474.

varies the apparent contract is not enough to exclude the evidence, for it is impossible to add any material incident to the written terms of a contract without altering its effect more or less; neither in the construction of a contract among merchants, tradesmen, or others, will the evidence be excluded, because the words are in their ordinary meaning unambiguous; for the principle of admission is, that words, perfectly unambiguous in their ordinary meaning, are used by the contractors in a different sense from that. What words more plain than "a thousand," "a week," "a day?” Yet the cases are familiar in which a thousand has been

held to mean twelve hundred ; "a week" only a week during the theatrical season; "a day " a working day. In such cases the evidence neither adds to, nor qualifies, nor contradicts, the written contract-it only ascertains it by expounding the language."1

The principles of this branch of evidence may be treated as fully expounded in the above luminous judgments of two of the most eminent of contemporary judges. A few illustrations will complete the practical outline of the doctrine. In Browne v. Byrne, a bill of lading specified a certain sum as payable for freight, and it was held that an indorsee, in an action for the amount, might give evidence of a customary deduction. The extrinsic evidence in this case, although bordering on repugnancy, was received because the bill of lading merely specified a sum certain for freight, without stipulating that it was to be free of all deductions. "If the bill of lading had expressed, or if from the language of it the intention of the parties could have been collected, that the freight at the specified rate should be paid free from all deductions, customary or otherwise, then it would have been repugnant to it to set up the usage.' Similarly, it is a leading principle that an agricultural custom, as that a tenant shall have an away-going crop,

1 Coleridge. J.: Browne v. Byrne, 23 L. J. 313, Q. B. 2 23 L. J. 316, Q. B.,

is good if not repugnant to the terms of a lease, although the lease says nothing about it; but not if the custom be repugnant to the express or implied terms of the lease.1 If the custom appear to be in a high degree unreasonable it will be strong evidence for a jury that it does not exist.2

When the usage is inconsistent with the express or implied terms of the written contract, it will be inadmissible to control it, on the principle expressum facit cessare tacitum.3 Where parties have come to an express contract, none can be implied; and, therefore, where a person contracts by writing in express terms, he cannot sue on an implied assumpsit. It is also the

opinion of the court and eminent jurists that the practice of admitting usage to explain written contracts ought not to be extended; and even its fundamental policy has been altogether denied.5

Extrinsic evidence is also not only admissible, but necessary to explain any alteration or interlineation that may appear in a written instrument. Generally the party tendering it in evidence must account for the alteration. If it appear to have been made contemporaneously with the instrument, or if it be made subsequently to its execution, with the privity of the parties, and there be no fraud on, or evasion of the stamp laws, its validity may be maintained. But if the alteration be material, as if the date, or amount, or time of payment of a bill of exchange be altered, or a joint responsibility converted into a joint and several responsibility,8 the instrument will be void, unless the alteration was

7

1 Wigglesworth v. Dallison, Dougl. 201; 1 Smith L. C. 299, and

notes.

2 Bottomley v. Forbes, 5 Bing. N. C. 128.

Blackett v. Royal Exchange Company, 2 Tyrw. 266.

• Cutter v. Powell, 2 Smith L. C. 1.

5 Lord Denman: Trueman v. Loder, 11 A. & E. 597. Clifford v. Parker, 2 M. & G. 909.

Alderson v. Langdale, 3 B. & Ad. 660.

8 Perring v. Hone, 4 Bing. 28.

made by consent of the parties, and equally so, although made with consent, if the stamp laws are infringed.1 So, where a bill has been altered with the privity of an indorser and his indorsee, but without the privity of the acceptor, the latter is discharged.2 The same rule holds when the alteration is accidental, or by a stranger without the privity of either party.3

The last case requiring notice in this chapter is when a contract is partly in writing and partly verbal; or when terms are offered in writing, and accepted verbally. At common law, such a combination of written and verbal evidence is strictly admissible to prove a complete contract, but not where the contract or other transaction is required to be in writing. Thus a contract, required by the Statute of Frauds to be in writing, must be wholly in writing; and such a contract cannot be proved by writings which require oral evidence to complete or connect them.4

1 Master v. Miller, 1 Smith L. C. 490, and notes.

2 Burchfield v. Moore, 23 L. J. 261, Q. B.

3 Davidson v. Cooper, 11 M. & W. 778; S. C., 13 M. & W. 352. 4 Boydell v. Drummond, 11 East, 142.

In this chapter only the leading principles of the numerous stamp laws will be stated, so far as they control the admissibility in evidence of written documents.

The general rule is that, where a stamp is essential to the legal validity of a writing, the writing cannot be given in evidence in civil proceedings if it be unstamped, or insufficiently stamped.

This rule does not extend to criminal proceedings, for by the 17 & 18 Vict. c. 83, s. 27, it is enacted that "every instrument liable to stamp duty shall be admitted in evidence in any criminal proceeding, although it may not have the stamp required by law impressed thereon, or affixed thereto."

The strictness of the rule has also been recently relaxed in the case of proceedings in the Superior Common Law Courts, by the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, ss. 28, 29), which requires the officer of the court to direct the attention of the court at the trial to any apparent insufficiency of the stamp; and empowers him to affix the proper stamp, on payment of the amount and penalty from the party tendering the writing in evidence. The following are the sections :

Sect. 28. Upon the production of any document as evidence at the trial of any cause, it shall be the duty of the officer of the court whose duty it is to read such document, to call the attention of the judge to any omission or insufficiency of the stamp; and the document, if unstamped, or not sufficiently stamped, shall not be received in evidence,