the shares to the vendor by the purchaser; and that the purchaser cannot demand to have the said shares delivered to him by the vendor before the time of payment for the shares agreed upon between the vendor and the purchaser. Whereupon the counsel for the defendant submitted that the evidence as to the usage or custom so offered to be given to the plaintiff was not good or admissible in law upon the said first and second issues or either of them, and that the said issues ought to be found for the defendant.

The LORD CHIEF BARON thereupon held and affirmed that the evidence as to the usage or custom, so offered to be given by the plaintiff as aforesaid, was not good or admissible in law. Whereupon the jury found a verdict for the defendant. The counsel for the plaintiff having tendered a bill of exceptions to the above ruling, the case was argued in Trinity Vacation, 1860 (1), by

Montague Smith (Coleridge with him), for the plaintiff :

The contract being silent as to the time for the delivery of the shares, evidence of the custom was admissible for the purpose of showing that the delivery and payment were to be contemporaneous.

(WILLES, J. In some cases the payment *is made before the shares are delivered.)

As a general rule evidence of usage is admissible where it merely seeks to add an incident to the contract, but does not control, nor is inconsistent with it. This custom is not inconsistent with the contract, and to incorporate it is merely to carry out the intention of the parties.

(WIGHTMAN, J.: Suppose there was when would the shares be deliverable?)

no evidence of usage,

Within a reasonable time. It is difficult to reconcile all the cases on this subject.

(BLACKBURN, J.: You must contend that Spartali v. Benecke (2) was wrongly decided.)

The judgment of the COURT in that case proceeded on the ground that the usage would, in effect, advance the time of payment stated in the contract, and was therefore inconsistent with it. The error in that case lies in supposing that evidence of usage is only admissible when the contract is ambiguous in

(1) June 19. Before Wightman, J., Williams, J., Crompton, J., Willes, J., Byles, J., Blackburn, J., and

Keating, J.

(2) 84 R. R. 532 (10 C. B. 212).

FIELD

v.

LELEAN.

[ *620 }

its terms. In Brown v. Byrne (1), the bill of lading expressly stated the rate of freight payable, yet it was held that evidence was admissible of a custom by which the shipowner, on payment, was bound to allow three months' discount. The principle on which the doctrine proceeds is, that the parties must be taken to have contracted with reference to the custom or usage. There are two branches of the rule: one relates to the language used, and evidence is admissible to explain its mercantile or trade meaning; the other has reference to known usages which prevail as to the subject-matter of certain contracts, and in that case such incidents may be annexed, provided they are not repugnant to, or inconsistent with the written contract. The French law agrees with our own in annexing incidents to

contracts.

(WILLES, J., referred to Toullier, de Droit Civil, vol. 6, chap. 3, sect. 5, pp. 304, 314, 319.

WIGHTMAN, J.: Syers v. Jonas (2) is an *express authority that where the contract is silent evidence is admissible, not merely to explain the terms used, but to annex customary incidents.

BLACKBURN, J.: That doctrine was affirmed in Humfrey v. Dale (3).)

In Parker v. Ibbetson (4) evidence was admitted to prove that, by the custom of a particular trade, a yearly hiring was determinable by a month's notice at any time; and it was left to the jury to say, first, whether such a custom existed; and secondly, whether the contract was made with reference to the custom. The jury found that the custom was proved, but that the hiring was a special hiring, to which the custom did not apply.

(WIGHTMAN, J.: In the judgment in Spartali v. Benecke (5), there is a mistake with reference to Syers v. Jonas (2): it is said, "the evidence was received, upon the ground that the incident sought to be annexed was not inconsistent with the contract; " but the evidence was rejected. Perhaps it means, "the evidence was held to be admissible, upon the ground," &c.) In Lucas v. Bristow (6), the plaintiffs sold to the defendant "fifty tons best palm oil," expected to arrive, &c., at 40l. 10s. per ton: wet, dirty, and inferior oil, if any, at a fair allowance." The oil, on arrival, contained only one-fifth of the "best"

(1) 97 R. R. 715 (3 El. & Bl. 703).
(2) 76 R. R. 515 (2 Ex. 111).
(3) 110 R. R. 587 (7 El. & Bl. 266).

(4) 114 R. R. 752 (4 C. B. N. S. 346). (5) 84 R. R. 532 (10 C. B. 212, 226). (6) 113 R. R. 944 (El. Bl. & El. 907).

oil; and, in an action for not accepting it, it was held that evidence was admissible to show that, according to mercantile usage, the contract was satisfied if the oil delivered contained a substantial portion of "best" oil; and that such evidence was for the jury.

(WIGHTMAN, J.: In that case there was an uncertainty on the face of the contract. Wet, dirty, and inferior oil was to be taken at an allowance, and it was uncertain how much of the "best," and how much wet, dirty, and inferior oil would be in each cargo. Therefore there was ambiguity enough to admit evidence of what proportion of good and inferior oil would satisfy the contract.)

In Humfrey v. Dale (1) evidence was admitted of a custom in the oil trade, that when a broker purchased without disclosing the name of his principal, he was liable to be looked to as the purchaser. Lord CAMPBELL, Ch. J., in delivering the judgment of the COURT, said: "Whether this evidence be treated as explaining the language used, or adding a tacitly implied incident to the contract beyond those which are expressed, is not material. In either point of view, it will be admissible unless it labours under the objection of introducing something repugnant to or inconsistent with the tenor of the written instrument."

(BLACKBURN, J.: The difficulty is to tell how much omission in a written contract will make the incident repugnant or inconsistent with it.

BYLES, J. The word "silent," which is used in some of the cases, is an equivocal word: it may mean not expressed but implied; or it may mean neither expressed nor implied.)

In the case of The Schooner Reeside (2), STORY, J., said: "The
true and appropriate office of a usage or custom is to interpret
the otherwise indeterminate intentions of parties, and to ascer-
tain the nature and extent of their contracts, arising, not from
express stipulations, but from mere implications and presump-
tions, and acts of a doubtful or equivocal character. It may
also be admitted to ascertain the true meaning of a particular
word, or of particular words, in a given instrument, when the
word or words have various senses, some common, some qualified,
and some technical, according to the subject-matter to which
they are applied. . . . But a written, and express contract
cannot be controlled, or varied, or contradicted by a usage or
custom; for that would not only be to admit parol evidence to
(1) 110 R. R. 587 (7 El. & Bl. 266, (2) 2 Sumner, Rep. Circ. Ct. U. S.
274).
569.

control, vary, or contradict written contracts, but it would be to allow *mere presumptions and implications properly arising, in the absence of any positive expression of intention, to control, vary or contradict the most formal and deliberate written declarations of the parties."

(BLACKBURN, J., referred to 1 Smith's Lead. Cas. p. 462.) In the case of the hiring of a domestic servant, the incident is annexed of "a month's warning or a month's wages."

(BLACKBURN, J.: A contract to hold from Lady Day in Northumberland, and the like contract in Cornwall, though in the same terms, might operate very differently if the custom in either county was applied to them.)

In Spartali v. Benecke (1), the contract was for the sale of specific goods at an agreed price to be paid on a future day, and therefore the COURT considered that the vendor did not mean to retain his lien.

(KEATING, J.: The usage there set up contradicted the terms of the contract as to the time of payment.

WILLIAMS, J.: I understand the Court to say that Syers v. Jonas laid down the general law, but they decided the case of Spartali v. Benecke on its particular merits. There the contract was for specific goods; here the contract would be satisfied by the delivery of any shares in that mine.)

Mathew, for the defendant:

There is a distinction between a contract which is silent and a contract which, by its language, impliedly excludes a particular usage or custom. This contract is not silent, and, according to its true construction, the shares are to be delivered within a reasonable time, and to be paid for at the times mentioned. The delivery and payment are not to be contemporaneous. The rule is positive, that evidence is inadmissible to contradict the express terms of a contract or its implied meaning: 1 Smith's Lead. Cas. 462. The law on this subject was laid down in Hutton v. Warren (2), and *adopted in Spartali v. Benecke (2).

(BLACKBURN, J.: Evidence of usage is never adduced for the purpose of annexing an incident to a contract, unless in order to vary it. According to the rule as sometimes laid down, evidence of usage would never be admissible except when it was not wanted.)

In a marine policy of insurance there is an implied warranty (3) 84 R. R. 532 (10 C. B. 212).

(1) 84 R. R. 532 (10 C. B. 212).

(2) 46 R. R. 368 (1 M. & W. 466).

of seaworthiness, and evidence would be inadmissible to contradict it. So, in the case of a demise of land, evidence could not be given that by local usage the lessor was precluded from distraining for rent. Spartali v. Benecke did not turn on the fact that the contract was for the sale of specific goods: whether the goods are specified or unascertained makes no difference. That decision proceeded on the ground that the usage was inconsistent with the contract, since its effect would be to give the vendor a lien on the goods, when by the terms of the contract he had waived it. In Ford v. Yates (1), where the contract imported a sale for ready money, it was held that evidence was inadmissible to show that, by the usual course of dealing between the parties, the goods were sold on a credit of six months.

(BLACKBURN, J.: That was not the case of a custom of trade, but merely of the terms of dealing between two individuals.) A long course of dealing between several persons is equivalent to a custom.

WIGHTMAN, J.: Suppose, in this case, for a long course of dealing the payment had always been contemporaneous with the delivery, would evidence of that have been admissible?)

In Brown v. Byrne (2) and Lucas v. Bristow (3) the evidence was admitted, under the other branch of the rule, to explain an' ambiguity in the language of the contract, not to annex an incident to it. In Parker v. Ibbetson (4) the contract was made in a particular trade, and therefore, according to the ordinary rule, all customs which regulated that trade were tacitly incorporated into the contract, unless excluded. Upon the face of this contract credit is expressly given to the vendee, but by implication no credit is to be given if this custom is admisssible. If the contract had contained no mention of payment, by implication of law the vendor would have had a lien on the shares, but the introduction of the stipulation as to the time of payment destroys the right of lien: How v. Kirchner (5), Kirchner v. Venus (6). Stipulations implied by law from the language of a written instrument are as binding as the express terms of the instrument, and as incapable of being controlled by custom; and it is clear that an express stipulation will exclude a custom: Roberts v. Barker (7).

(WILLIAMS, J.: The ground of that decision is that the parties, having made an express stipulation, did not mean to be governed

(1) 58 R. R. 471 (2 Man. & G. 549).
(2) 97 R. R. 715 (3 El. & Bl. 703).
(3) 113 R. R. 944 (El. Bl. & El. 907).
(4) 114 R. R. 752 (4 C. B. N. S. 346).

(5) 11 Moo. P. C. 21.

(6) 12 Moo. P. C. 361.

(7) 38 R. R. 773 (1 Cr. & M. 808).