Usage

Uniform practice

Usage and custom are now used interchangeably, though custom seems to have been originally confined to local usages immemorially existing; Browne, Us. & Cust 13. A usage must be established; that is, it must be known, certain, uniform, reasonable, and not contrary to lawj but it may be of terg y. R. Co., 69 Pa. 374, 8 Am. Rep. 264; Walls v. Bailey, 49 N. Y. 464, 10 Am. Rep. 407; Power v. Bowdle, 3 N. Dak. 107, 54 N. W. 404, 21 L. R. A. 328, 44 Am. St. Rep. 511; and no usage is good which conflicts with an established principle of law; East B. L. Co. v. Dennis, 85 Ala. 565, 5 South. 317, 2 L. R. A. 836, 7 Am. St. Rep. 73; Pickering v. Weld, 159 Mass. 522, 34 N. E. 1081. Parties who contract on a subject-matter concerning which known usages prevail incorporate such usages by implication into their agreements, if nothing is said to the contrary; Hostetter v. Park, 137 U. 6.

30, 11 Sup. Ct. 1, 34 L. Ed. 568.

The usages of trade afford ground upon which a proper construction may be given to contracts. By their aid the indeterminate intention of parties and the nature and extent of their contracts arising from mere implications or presumptions, and acts of an equivocal character may be ascertained; and the meaning of words and doubtful expressions may become known; Mc Comber v. Parker, 13 Pick. (Mass.) 182; 2 C. & P. 525; Mechanics’ Bank v. Bank, 5 Wheat. (U. S.) 326, 5 L. Ed. 100; Nordaas v. Hubbard, 48 Fed. 921. Among commercial and business men in a locality, it need not be so ancient “that the memory of man runneth not to the contrary,” nor that it should contain all the other elements of a common-law custom, as defined in the books; Lane v. Bank, 3 Ind. App. 299, 29 N. E. 613. One seeking to avoid the effect of a notorious and uniform usage of trade must show that he was ignorant of it: Robertson v. S. S. Co., 139 N. Y. 416, 34 N. E. 1053. General usage may be proved in proper cases to remove ambiguities and uncertainties in a contract, or to annex incidents, but it cannot destroy, contradict or modify what is otherwise manifest. It cannot make a contract where there is one, nor prevent the effect of settled rules of law; First N. Bk. v. Burkhardt, 100 U. S. 686, 25 L. Ed. 766, followed in Moore v. U. S., 196 U. S. 166, 25 Sup. Ct. 202, 49 L. Ed. 428; Adams v. Goddard, 48 Me. 212; Home Ins. Co. v. Ins. Co., 180 N. Y. 389, 73 N. E. 65, 105 Am. St. Rep. 772; evidence of an established custom among men in the same line of work is not admissible to justify negligence per se; Larson v. Ring, 43 Minn. 88, 44 N. W. 1078; evidence is admissible in a suit on a fire policy to show whether the parties intended standard or solar time, as fixing the expiration of the policy; Globe & Rutgers F. Ins. Co. v. David Moffat Co., 154 Fed. 13, 83 C. C. A. 91. A local usage must be one known to both contracting parties; Chateaugay O. & I. Co. v. Blake, 144 U. S. 476, 12 Sup. Ct. 731, 36 L. Ed. 510. See East Tennessee, V. & G. R. Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489; Van Hoesen v. Cameron, 54 Mich. 609, 20 N. W. 609; Park v. Viernow, 16 Mo. App. 383. the authorities vary greatly; Lawson, Us. & Oust. 25; 7 E. & B. 266; Van Horn v. Gilbough, 10 Wkly. Notes Cas. (Pa.) 347. See Custom; Lawson; Browne, Us. & Cust.