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Opinion of the Court, per FOLGER, J.
openings in wall, but not for openings in chimneys nor jambs, nor for caps, sills nor lintels, was admitted as not unreasonable. So in Barton v. McKelway (2 Zabriskie, 22 N. J., 165), in a contract to deliver certain trees from a nursery, they were to be not less than one foot high. The dispute was as to the measurement; and evidence was held competent of a usage in that trade to measure only to the top of the ripe, hard wood, and not to the tip of the tree. (See, also, Wilcox v. Wood, 9 Wend., 346; Grant v. Maddox, 15 M. & W., *737.)
So in the case before us. How shall the number of the square yards of work done be ascertained, is not so determinately reached by the language of the contract as that the law can say there was but one method in the minds of the parties, and this is it.
And from the cases above cited, it appears that the meaning of words may be controlled and varied by usage; even when they are words of number, length or space, usually the most definite in language.
Every legal contract is to be interpreted in accordance with the intention of the parties making it. And usage (with a limitation hereafter noticed), when it is reasonable, uniform, well settled, not in opposition to fixed rules of law, not in contradiction of the express terms of the contract, is deemed to form a part of the contract, and to enter into the intention of the parties. (Starkie on Ev., 637, *710; Williams v. Gilman, 3 Greenl., 276.) Parties are held to contract in reference to the law of the State in which they reside. For all men, being bound to know the law, are presumed beyond dispute, to contract in reference to it. And so they are presumed to contract in reference to the usage of the particular place or trade in or as to which they enter into agreement (1 Greenl. on Ev., SS 292-294; Broom's Leg. Max., 682, *889, 890), when it is so far established and so far known to the parties that it must be supposed that their contract was made in reference to it. (2 Parsons on Cont., 541, and cases cited.)
Opinion of the Court, per FOLGER, J.
Evidence of usage is received, as is any other parol evidence, when a written contract is under consideration. It is to apply the written contract to the subject-matter, to explain expressions used in a particular sense, by particular persons, as to particular subjects, to give effect to language in a contract as it was understood by those who made use of it. (Per Savage, Ch. J.; Boorman v. Johnston, 12 Wend., 573.)
The jury, in the case before us, have found the existence of the usage contended for by the plaintiffs, and upon evidence which well sustains the finding. The same evidence shows that the usage was uniform, continuous and well settled. Nor was it one which was in opposition to well settled principles of law, or which was unreasonable. The appellant has cited to us Jordan v. Meredith (3 Yeates, 318), in which it is said that the pretended usage of plasterers to charge for a part of the openings is unreasonable and bad. The reason there given why it is so, is that it is the height of injustice to charge an employer with materials never furnished. But as to this case, it is to be remarked that this expression is obiter. For it did not appear that the jury found that there existed the usage commented upon; and the decision of the case is put upon the ground that there was no proof that the jury had been governed by a usage. Again; the remark is confined to a consideration of the material furnished; whereas, the usage claimed in the case before us is concerned as well with labor performed. And the usage is not designed to obtain payment for material never furnished. It is a method devised for more conveniently and readily ascertaining the quantum of compensation for what work has been done in fact, and what material has been in fact furnished. It is agreeable with common sense that it is more difficult, asking more skill and care, requiring more time, to plaster about the frames of doors and windows, and along the edges of base. boards and cornices, than over the plain uninterrupted surface of wall or ceiling. The more then, of such openings or obstacles, the more, in proportion to the space of plaster actually laid on, should be the compensation. And it matters
Opinion of the Court, per FolgER, J.
not in law, nor in reason, how the amount of that greater compensation is arrived at; whether by a minute and precise calculation of part plain and of part broken space, at a greater price for the square yard of space actually covered, or by an assumption that the whole surface worked upon is plain, and then payment be made for it at a less price per square yard thereof.
The aim which the usage takes, is at a compensation which shall be just to employer and employed. The mode of reaching it, proposed by the usage, does not infringe upon any principle of law; for it is but a mode. It is not unreasonable; for the price per square yard will, in the rivalry of competition for the work, be made to agree in amount with the method used of ascertaining the number of yards. And the difference in amount of material furnished will be but a make-weight in determining the compensation for the labor performed. (And see Lowe v. Lehman, supra.)
These views dispose of the points made by the appellant in this court, save the one that the trial court erred in over- / ruling the question put to the defendant when on the stand as a witness in his own behalf, to wit: “ When you
made that contract, had you any knowledge of any custom in Buffalo of measuring openings in measuring plastering ?”
It does not appear, from the printed case, on what ground the objection to the question was put by the plaintiffs, nor on what ground it was disposed of by the court.
It will be observed that the inquiry calls for ignorance of custom. A technical ruling would dispose of the point adversely to the appellant. For strictly speaking, custom is that length of usage which has become law. It is a usage which has acquired the force of law (Bouvier Law Dictionary, voce, “Custom;" Hursh v. North, 40 Penn. St., 241); and ignorance of the law will not excuse. A general custom is the common law itself, or a part of it. Thus the allowance of days of grace, on a bill or note, is a custom of merchants; but it is established by a usage so general, so long continued, so pervading the whole commercial world, that it
Opinion of the Court, per FOLGER, J.
is universally understood to enter into every bill or note of a mercantile character; and to form so completely a part of the contract that the bill or note does not become due, in fact or in law, on the day mentioned on its face, but on the last day of grace. (Bk. of Wash. v. Triplett, 1 Peters [U. S.), 25; Bodfish v. Fox, 10 Shepley, 23 Maine, 90; and see, per Chancellor, Sleght v. Hartshorne, 2 J. R., 540, *541.) In such a case, a party would not be heard to say that he was ignorant of the custom. But the words custom and usage are often used in the books as convertible terms. It is evident that, throughout the trial in this case, the word custom was used as synonymous with word usage. It is proper then, to treat the question as calling for the ignorance of the defendant of any usage, existing in Buffalo in the trade of the plaintiffs, such as was claimed by them. And without doubt, it was the purpose of the trial court to hold that the defendant could not make proof of his ignorance in fact of the usage which had been shown by the plaintiffs; and thus a question is raised, which, from the expressions used in many decisions, is not to be determined without a seeming departure from some previous holdings. There are many cases in which the language used would seemn to indicate that the existence of a usage of a trade, profession or locality having been shown, the presumption indisputable arises that the parties did contract in reference to it. Thus, in Sewell v. Corp. (1 Carr. & P., 392), Best, Ch. J., says: If there is a general usage, applicable to a particular profession, parties employing an individual are supposed to deal with him according to that usage. So in Mayor, etc., v. O'Neill (1 Penn. St., 342), it is said: All trades have their usages; and when a contract is made with a man about the business of his craft, it is framed on the basis of its usage, which becomes part of it, except when its place is occupied by particular stipulations. It is apprehended that this form of expression means only this: that the facts and circumstances of the case are such, that the usage is of so long continuance, so well established, so notorious, so universal and so
Opinion of the Court, per FOLGER, J.
reasonable in itself, as that the presumption is violent that the parties contracted with reference to it, and made it a part of their agreement. There are cases, too, where such form of utterance has been used in which both parties were of the same trade or kind of business; and, therefore, the usage proven was of the technicalities of their calling, of which it was held they might not profess ignorance. There are cases, too, of principal and agent, where one has been set by another to do acts in a particular business, to be done at a particular locality, as on stock exchange, where the power to deal is a privilege obtained by payment of a fee, and is restricted to a body which has, for its regulation and government, como under certain prescribed rules or established usages; and, as the agent could not do the will of his principal, nor could the principal himself, save in conformity with those rules or usages, it is held that the principal must be bound thereby, whether cognizant of them or not; and that ignorance will not excuse him. (Pollock v. Stables, 12 Q. B., 765.) It is to be considered too, that these decisions (many of them certainly) were of a time when parties were not, as a general rule, called to testify in their own behalf, and when express evidence of knowledge or of ignorance of a usage could not ordinarily be given; and when the fact of knowledge or of ignorance was to be reached only as the result of a presumption or inference from the other facts established in the case. Doubtless, if a custom is ancient, very general, and well known, it will often be a presumption of law, that the party had knowledge of it. (See Clayton v. Gregson, 5 A. & E., 302.)
It would seem however, that upon principle, for a party to be bound by a local usage, or a usage of a particular trade or profession, he must be shown to have knowledge or notice of its existence. (Id.) For upon what basis is it that a contract is held to be entered into with reference to, or in conformity with, an existing usage? Usage is engrafted upon a contract or invoked to give it a meaning, on the assumption that the parties contracted in reference to it; that is to say,