[PART II. casks only. So, where a bill of lading contained the usual clause, "the dangers of the sea only excepted," the court held, that the shipowners could not rely on an established custom in the trade, that persons in their position should only be liable for damages. occasioned by their own neglect, provided they saw the merchandise properly secured and stowed. So, also, where some linseed was bought to be delivered at Hull, and "fourteen days to be allowed for its delivery from the time of the ship's being ready to discharge," evidence to show that this stipulation was intended by the parties for the benefit, not of the seller, but of the buyer, who had the option of accepting the seed during any portion of the fourteen days, has been rejected.3 § 1167. Where goods had been sold through a London broker 10 under a written contract, which stipulated that payment should be made by bills, Lord Ellenborough rejected evidence of a custom, that bills meant approved bills, and that the vendor had the option of rejecting any bill of which he disapproved; and, although the same learned judge, in a subsequent stage of the case, admitted evidence of a usage of trade, which reserved to vendors, selling through brokers in the manner above stated, the power of annulling the contract within a reasonable time after the name of the purchaser had been communicated to them,-serious doubts may be entertained whether he was right in so doing; and whether the custom, thus allowed to be proved, was so incidental to the contract, as, in the absence of express words, to be incorporated in it." § 1168. Parol evidence of usage or custom is not confined to cases where the written instrument is expressed in ambiguous technical language; for it is certainly sometimes admissible "to 6 10€ 1 Bend v. Georgia Ins. Co., Sup. Ct., N. York, 1842; cited in Gr. Ev. 292. 2 The Schooner Reeside, 2 Sumn. 567. 3 Sotilichos v. Kemp, 3 Ex. R. 105. ✦ Hodgson v. Davies, 2 Camp. 532, approved of by Ld. Denman in Trueman v. Loder, 11 A. & E. 599. Hodgson v. Davies, 2 Camp. 531, questioned by Ld. Denman in Trueman v. Loder, 11 A. & E. 599. Gr. Ev. 294, as to four lines. annex incidents," as it is termed,—that is, to show what things are customarily treated as incidental and accessorial to the principal thing, which is the subject of the contract, or to which the instrument relates. For instance, though a bill of exchange or promissory note is silent as to any days of grace,' parol evidence of the known and established usage of the country or place where the bill or note is payable, is admissible to show on what day the grace expired. So, it may be proved by parol, that it is the custom in 1 The time is surely come for abolishing this useless and inconvenient "incident." See next note, head "England." 2 Renner v. Bank of Columbia, 9 Wheat. 581, where the decisions on this point are reviewed by Thompson, J. The following table, copied from Mr. Chitty's large work on Bills, 374–376, may be found of practical use; though too much reliance should not be placed on its entire accuracy:— England, Scotland, Wales. and Ireland. But bills and notes, which are expressed to be payable on demand, or at sight, or on presentation, or in which no time for payment is expressed, are not entitled to any days of grace, 45 & 46 V., c. 61, 2 10, 14. Abolished by the Code Napoleon, Livre i., tit. 8, 5, pl. 135; 1 Pardess. 189. Ten days were formerly allowed; Poth. pl. 14, 15. Frankfort-on-the-) Except on bills drawn at sight, Sundays and France Leghorn Lisbon and Oporto 15 days on local, and 6 on foreign bills; but if Naples. Palermo not previously accepted, must be paid on the days they fall due Abolished by the Code Napoleon 3 days. 15 days. 3 days* none. 4 days. none. 12 days. 3 days. none. 6 days, or 15 days. none. none. particular trades, under general contracts of hiring and service, for the contracts to be defeasible on giving a month's notice on either side,' or for the persons employed to have certain holidays in the year, and the Sundays to themselves. So, it may be shown by parol, that a heriot is due by custom on the death of a tenant for Petersburgh . . . Bills drawn after date are entitled to 10 days' 2 grace, those drawn at sight to only 3 days, 10 days, 3, &c. 15 days. none. 3 days. Vary in different parts of Spain, generally 14 6 days, in which Sundays, holidays, and the 1 Parker v. Ibbetson, 4 Com. B., N. S. 348. 2 R. v. Stoke-upon-Trent, 5 Q. B. 303. 3 days. 6 days. 3 days. 3 days. life, though it be not expressed in the lease.' So, a lessee by deed may show, that, by the custom of the country, he is entitled to an away-going crop, though no such right be reserved in the deed.2 So, a publican, holding premises under a written agreement, which reserved a weekly rent, but was otherwise silent as to the period of the tenancy, has been allowed in Ireland to prove a custom among licensed victuallers, according to which a tenant paying in advance the yearly victualler's license, is deemed to have a yearly tenure, though the rent be payable weekly.' § 1169. Again, in an action for the price of tobacco, evidence will? 1067 be admissible to show, that, by the usage of the trade, all sales of tobacco are by sample, although this term be not expressed in the bought and sold notes. In another case, where a quantity of linseed oil had been sold through London brokers by bought and sold notes, and the name of the purchaser was not disclosed in the bought note, evidence was received of a usage of trade in the City, by which every buying broker, who did not, at the date of the bargain, name his principal, rendered himself liable to be treated by the vendor as the purchaser. So, where a person had contracted in the body of a charter-party "as agent," evidence was admitted to show a custom that he should be personally liable, if he did not disclose the name of his principal within a reasonable time." 5 1 White . Sayer, Palm. 211. * Wigglesworth v. Dallison, 1 Doug. 201; 1 Smith, L. C. 520; and 1 Bligh, 287, S. C.; Senior v. Armitage, Holt, N. P. R. 197, explained by Parke, B., in 1 M. & W. 476; Hutton v. Warren, 1 M. & W. 466; Tyr. & Gr. 646, S. C. See In re Estate of M. of Waterford, I. R., 5 Eq. 434. 3 Lundy r. Reilly, 30 Law Times, 223, in Ir. Ex. 4 Syers r. Jonas, 2 Ex. R. 111; O'Neill v. Bell, I. R., 2 C. L. 68. See, also, Brown r. Byrne, 3 E. & B. 703; Cuthbert v. Cumming, 10 Ex. R. 809; aff. in Ex. Ch., 11 Ex. R. 405; Lucas v. Bristow, 27 L. J., Q. B. 364; E. B. & E. 907, S. C. 5 Humfrey v. Dale, 26 L. J., Q. B. 137; 7 E. & B. 256, S. C.; Dale v. Humfrey, 27 L. J., Q. B. 390; E. B. & E. 1004, S. C., in Ex. Ch.; Imperial Bk. t. Lond. & St. Katherine's Dock Co., 46 L. J., Ch. 335, 337, per Jessel, M. R.; Fleet r. Murton, 41 L. J., Q. B. 49; 7 Law Rep., Q. B. 126, S. C. See Southwell v. Bowditch, L. R., 1 C. P. D. 100; 45 L. J., C. P. 630, S. C., per Ct. of App. 6 * Hutchinson v. Tatham, 42 L. J., C. P. 260; 8 Law Rep., C. P. 482, S. c. So, where some mining shares had been sold upon the terms that they should be paid for "half in two, and half in four months," but the contract was silent as to the time of their delivery, the court, in an action against the purchaser for not accepting and paying for the shares, admitted evidence of a usage among brokers, that on contracts for the sale of mining shares, the vendor was not bound to deliver them without contemporaneous payment.' So, where a horse had been sold by private contract at a repository, with a written warranty of soundness, and the purchaser afterwards brought an action against the seller, the horse turning out to be unsound, the defendant was permitted to show that, by one of the printed regulations hung up in the repository, warranties were only to remain in force till twelve o'clock on the day after the sale; and then, upon further proof, that the plaintiff was aware of this regulation, and yet made no complaint within the specified time, a nonsuit was directed to be entered.2 § 1170. This rule of annexing incidents by parol, which, time 1068 out of mind, has been adopted in explanation of mercantile proceedings, and is now generally applied to contracts respecting any transaction wherein known usages have prevailed, rests on the presumption that the parties did not intend to express in writing the whole of the agreement by which they were to be bound, but only to make their contract with reference to the established usages and customs relating to the subject-matter. But here it must be borne in mind, that "incidents" are frequently "annexed" to contracts, and conditions implied, not only by the usage or custom of trade, which is always a matter of evidence, but by the law-merchant, which is judicially noticed without proof, and by the common law, and also occasionally by statute. This doctrine of legal implication is sufficiently abstruse, and the soundest lawyers are often at fault, 3 4 1 Field v. Lelean, 30 L. J., Ex. 168, per Ex. overruling Spartali v. Benecke, 10 Com. B. 212. B. 229. 2 Ch.; 6 H. & N. 617, S. C.; Bywater v. Richardson, 1 A. & E. 508; 3 N. & M. 748, S. C. See Smart v. Hyde, 8 M. & W. 723; and Foster v. Mentor Life Assur. Co., 3 E. & B. 48. 3 Hutton v. Warren, 1 M. & W. 475, per Parke, B.; Gibson v. Small, 4 H. of L. Cas. 397, per id. 5 Gibson v. Small, 4 H. of L. Cas. 396, 397, per Parke, B. |