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measurement. These, as described in the note, were to consist of twenty-three pieces in all, of which twenty appear to have required about 375 tons stowage space, calculated at 40 cubic feet per ton, with an aggregate dead weight of 209 tons. For the purposes of this case, it is not necessary to consider whether the note in question ought to be regarded as pars contractus, or as an unsigned jotting, because in either view it leads, practically, to the same legal result. Assuming it to be a mere memorandum, it nevertheless amounts to a distinct representation by the charterers that the appellants would not be required, under their guarantee, to carry more than twenty-three pieces of machinery of the size and character which it describes. That being the case, if the fact that the "Lauderdale" did actually stow and carry only 1690 tons dead weight of cargo was attributable to the respondents having sent forward large machinery in excess of their representation, their claim to a rateable deduction from freight is as effectually barred as if the representation had been embodied in the contract and made an express condition of the guarantee.
It was stated by Erle, J. in Parker v Winlo' that where one of the parties signing the charter-parties was described in the printed margin as 'broker,' this was no more part of the contract than the picture of a ship which often occurred at the top of marine instruments.
127 L. J. Q. B. 51.
Evidence of usage and
By the general rule of the law of evidence, a charter-party is conclusive as to the terms of the contract, and what is not in the charter cannot be part of the terms. To this there is an exception, that customs of trade are tacitly incorporated in the contract, though not expressed in it, provided the express terms of the writing are not so inconsistent with the custom as to exclude it.1
Parol evidence of mercantile usage is not admissible to vary the terms of a charter-party. But evidence of custom may be used to explain ambiguous mercantile expressions in a charter or to add incidents, or to annex usual terms and conditions which are not inconsistent with the written contract between the parties.3
The custom of merchants, where such custom has been settled by judicial determination, will be recognized without proof in courts of law."
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 this 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,
1 Robinson v. Mollett, L. R. 7 H. L. 802.
2 Phillipps v. Briard, 25 L. J. Ex. 233.
In French v. Newgass, Brett L. J. said :— "There is a rule of construction that unless words are of a technical character they must be construed according to their ordinary and grammatical meaning; and there is another rule that you cannot, by any evidence, import into any contract anything contradictory or inconsistent with its terms. If the words are technical you may add to them by evidence of a custom not inconsistent with them. But if there is no evidence of any technical use or any custom to add anything to the words as they stand, the words must be construed according to their ordinary grammatical construction."
Thus, oral evidence of the mercantile meaning of the term "cotton in bales," was held to be admissible.2 So "months," as meaning calendar months in a charter-party, and whether the word "days" meant working days or running days.*
Again in all contracts, as to the subject-matter of which a known usage prevails, parties are found to proceed with the tacit assumption for 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.
1 L. R. 3 C. P. D. 163; 47 L. J. C. P. 361.
Taylor v. Briggs, 2 C. & P. 525; Gorrissen v. Perrin, 27 L. J. C. P. 29. Jolly v. Young, 1 Esp. 186; Simpson v. Margitson, 11 Q. B. 32.
• Cochran v. Retberg, 3 Esp. 121.
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 terms of a contract without altering its effect more or less."
In the case of Bottomley v. Forbes, by a charterparty it was stipulated to pay a certain sum a ton for cotton shipped at Bombay for London, to be calculated at fifty cubic feet per ton, nothing was said as to the place where the measurement was to be made:-It was held that the defendant might call witnesses to shew an usage at the port of Bombay, of packing cotton by means of a screw, so as to compress a greater quantity into a less space. Held also, that it was competent to the plaintiff to produce witnesses in reply, for the purpose of proving such facts as would shew the alleged usage to be unreasonable, and that it was not acted upon by the parties; and that such evidence need not be given at first as a part of the plaintiff's direct case. In Buckle v. Knoop, the same custom, with slight variations, was again
Brown v. Byrne, 23 L. J. Q. B. 316; Humfrey v. Dale, 26 L.J.Q.B. 137. 3 L. R. 2 Ex. 125, 333.
28 L. J. C. P. 85,
proved. In Nielsen v. Neame1 a custom as to the method of measuring timber at a port of discharge was proved.
In the Skandinav Sir R. Phillimore held, in accordance with the opinion of Martin, B. in Gibson r. Sturge3 cited by Willes, J. in Coulthurst v. Sweet,* that as the mode of measuring the vessel's cargo in Sweden, where she was loaded, differed from the mode of measuring in Hull, the port of discharge, the latter measurement must be adopted. when the case reached the Court of Appeal it was held, on the language of the charter-party, that the parties had agreed that the measurement should be made according to the Gothenburg custom.
In Kirchner v. Venus, Lord Kingsdowne says:"when the evidence of the usage of a particular place is admitted to add to or in any manner to affect the construction of a written contract, it is admitted only on the ground that the parties who made the contract are both cognizant of the usage, and must be presumed to have made their agreement with reference to it. But no such presumption can arise when one of the parties is ignorant of it."
In Kell v. Anderson," evidence was admitted to show the time a vessel arrived at her place of discharge according to the usage of the port of London for such vessels.
In an action for demurrage evidence was held admissible tending to shew that, by the custom of
11 C. & E. 288.
L. R. 1 C. P. 619.
251 L. J. Ad. 93.
3 24 L. J. Ex. 121.
10 M. & W. 498.