(District Uourt, E. D. Loui.iana. December, 1882.)
The expression" working days" has, in commerce and jurisprudence, " settled and definite meaning; it means days as they succeed each other, exclusive of Sundays and llOlidays.
:I. CHARTER,;PARTY-PAROL EVIDENCE TO CONTRADICT-(''uSTOM.
In a written instrument of where an unambiguous term is used, and which has an llccepted signification, both in commercial and judicial language, proof of usage will not be permitted to show that such term has a local meaning repugnant to its settled sense.
Edward H. Farrar, for Samuel P. Blanc and Frank N. Butler, for defendants. BILLINGS, D. J. In this cause the only question submitted is as to the meaning of the words "working days," as used in a charter-party executed in the city of New Orleans. The vessel was chartered for a voyage to Trieste. The charter-party provided "that lay days for loading shall be as follows: If not sooner disP!ttched, 14 working days, Sundays excepted, for loading; and days, Sundays excepted, for discharging at Trieste." The answer admits the allegations of the libel that - - days were consumed in lading beyond the lay days allowed in the contract, if only Sundays and holidays are to be excluded in the computation, and avers thai by the usage of the pori of New Orleans, with reference to cotton-carrying vessels, to whioh class the chartered vessel belonged, rainy days are also excluded, and that when the days wherein cotton could not be laden on account of the weather are also excluded, the ship's time of loading was within the period allowed by the charter-party. It is thus seen that the sole question is as to the meaning of the term "working days," and whether that meaning can be varied by parol testimony. The civil day is the solar day, and is measured by the diumal revolution of the sun, denoting the interval of time which elapses between the successive transits of the sun over the same hour circle, &'0 that the civil day commences and terminates at The expression "working days" has iu commerce and jurisprudence a settled and definite meaning; it means days as they succeed each other, exclusive of Sundays and holidays. The court give this precise and formal definition in Brooks v. Minturn, 1 Cal. 483. See,
-Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
PEDERSEN V. ENGBTER.
also. Bouv. Law verbis, '''lay days," and Webst·. Diet. under the head "working day:' If the word "days," alone. is used with reference to lay days or days for loading a ship. an the running or successive days are counted. If the term "working days" is used. all days are counted except Sundays and holidays. [f the parties wish further to except days when the. weather prevents work, they use the expression "weather working days." or "with customary dispatch," or some other expression which clearly indicates the intention to; recognize that days of inclemency from winds and storms are also excepted.. 'l'aking intocorlsideration the cycle of years since this term "working days" has receivaa a commercial interpretation. as sanctioned by the judges. and the frequency and universality with which conrts have adhered to that interpretation. for parties to use the-expression "working days" in a charter-party is to express that. except Sundays and holidays, all days are to be counted. whatever be the state of the weather. Now, to admit evidence that at the port of New Orleans any usage prevails which would· vary t.his legally-ascertained definition. would be to admit parol evidence to contradict a written contract. I am aware that in the many cases in which courts have been called upon to limit the admission of parol to affect written evidence, s()me may be found where the premises have not been sufficiently scrutinized, and thus laxity will be found in the conclusion. and where, therefore. a proper exception has been allowed to obliterate one of. the most salutar;y rules of evidence. But the best-considered and most-discriminating cases, and the commentators of highest repute, establish, in the language of Chancellor (then Chief Justice) KENT, in Frith v.Barker, 2 Johns. 335,that "usage ought never to be rec.eived to contradict a settled rule of law." Homer v. Dorr.10 Mass. 26. Phillips, in his treatise on Evidence, page 436, (marginal paging,) says: "Where the legal effect of an instrument or of the terms in it has been settled, no evidence of commercial usage is admissible." To same effect see Starkie.Ev. pt. 4, pp. 1036; 1038. In Angomar v. Wilson, 12 La. Ann. 857, our own supreme court excluded testimony as to the meaning of the term "household furniture," on the ground that "there was no ambiguity in the expression." In Woodruff v. Merchants' Bctnk, 25 Wend. 674. affirmed in the court of that days errors, (S. C. 6 Hill, 174,) parol evidence of usage, to of grace were not allowed upon an order upon a bank to pay to the order of A. B., on .such a sum of money, was excluded;
the court, through Judge NELSON, saying that "the effect of the proof of usage as given in this case, if sanctioned, would be to overturn the whole law on the subject of bills of exchange in the city of New York." The doctrine is adhered to in Bowen v. Newell, 8 N. Y. l!J4. The case presented is this: In a written agreement, parties have used a term which is unambiguous, and which has an accept,ed signification, both in commercial and judicial language. Proolof usage is sought to be introduced to show that in the very respect in which this term had its ongin and has had its world-wide employment, it has a local mel\ning repugnant to its settled sense. To permit this would be to introduce ambiguity where none exists, and defeat the clearly-expressed intent of a written contract. There must be judgment for the libelant upon the answer of the defendants.
. FRY V. COOK
(District Uourt, D.
1. ARREST IN ADMIRALTY.
The limitation in the statutes of the United States and the rules of the supreme court, allowing arrests in civil by virtue of a process from a court of the United States only in cases in which an arrest is authorized by the laws of the state..in which such court was sitting, applies to admiralty as well as to common-law processes
In the absence of showing cruelty or great llardship, the ad· miralty courts of the united States cannot be required or allow themselves to entertain jurisdiction of a case where subjects of a foreign government invoke their assistance against a merchant vessel of a foreign government.
R. H. Sh!lnnon, for libelant. Edward M. Hudson and J. Walker Pearn, for respondents.
BILLINGS, D. J. This is an action brought to recover damages for assault and battery, alleged to have been committed on the high seas. An order of arrest was at first issued, which, on argument, was vacated, on the grounds that the statutes of the United States and the rules of the supreme court allowed an arrest by virtue of a process from a court of the United States only in cases in which an arrest is authorized by the laws of the state in which such court was sit-
.Reported by Joseph P. Hornor, Esq., of the New Orleans bar.