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Opinion of the Court, per FOLGER, J.

that it was their intention that it should be a part of their contract wherever their contract in that regard was silent or obscure. But could intention run in that way unless there was knowledge of the way to guide it? No usage is admissible to influence the construction of a contract unless it appears that it be so well settled, so uniformly acted upon, and so long continued, as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference thereto. (See Rushforth v. Hadfield, 7 East, 224.) There must be some proof that the contract had reference to it, or proof arising out of the position of the parties, their knowledge of the course of business, their knowledge of the usage, or other circumstance from which it may be inferred or presumed that they had reference to it. (Bodfish v. Fox, supra, p. 96.)

Frequent are the expressions in the later authorities that, where the usage is of a particular trade or locality, it must appear that it was known to a party before he is bound by it, so as to make it a part of his contract. In Bradley v. Wheeler (44 N. Y., 500) it is said, though not perhaps absolutely necessary to be said in the decision of that case, that local custom could not affect the plaintiffs without proof that they had knowledge or notice of it. In Higgins v. Moore (34 N. Y., 425) it is said (with the same qualification, it is to be received, however): “The usage being local, its existence must be clearly proved to have been known to the plaintiffs at the time.” And it appears that in that case the plaintiffs showed affirmatively, that they understood the usage to be the reverse of that set up by the defendants and found by the referee to exist. In Esterly v. Cole (3 Coms., 502) it is said that, where there is a general usage in any particular trade or branch of business to charge or allow interest, parties having knowledge of the usage are presumed to contract in reference to it. And again, in the same case, that if proof of the existence of the usage had been followed with proof that the defendant had knowledge thereof, the case would have been made out.

Opinion of the Court, per FOLGER, J.

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In Dawson v. Kittle (4 Hill, 107) it is said that the usage must be known to the party at the time of contracting, or he must be presumed to have known and assented to it. In

Wheeler v. Newbould (5 Duer, 29) it is expressly held that proof of a local usage can never be received to

vary struction which the law would otherwise give to a contract, unless it is clearly proven that its existence was known to the parties, and that their contract was made in reference to its terms. The judgment in the case last cited was affirmed in this court (16 N. Y., 392). The usage sought to be availed of was here pronounced illegal and void; and the holding above extracted was not noticed.

Kirchner v. Venus (12 Moore Priv. Coun. Cases, 361) was a case in which a usage of shipping merchants at Liverpool was shown, to affect a question of freight to Sydney, in New South Wales, against a party living at the latter place. Proof was admitted to show that the usage was unknown at Sydney. It was held that this proof was prevalent, and that evidence of the usage of a particular place is admitted only on the ground that the parties who contracted are both cognizant of the usage, and must be presumed to have made their agreement in reference to it. In Caldwell v. Dawson (4 Metc. Ky., 121) it is held, that it must appear that the party had actual knowledge of the usage, or the evidence must be such as to clearly authorize the presumption that he had knowledge of it. And further, that the fact that one party had knowledge of the usage, and supposed that it would enter into the contract, is not sufficient.

In Barnard v. Kellogg (10 Wallace, 383) it is said, that usage is used as a mode of interpretation, on the theory that the parties knew of its existence, and contracted with reference to it; and that the conduct of the parties in that case showed clearly that they did not know of this custom, and could not therefore have dealt with reference to it. (See also, Martin v. Maynard, 16 N. H., 166; Dodge v. Favor, 15 Gray, 82; Fisher v. Sargent, 10 Cush., 250; Stevens v. Reeves, 9 Pick., 200.)

Opinion of the Court, per FOLGER, J.

Not only the existence of such a usage, but whether knowledge of it exists in any particular case, is a question of fact for the jury. (10 Cush., supra; Winsor v. Dillaway, 4 Metc., 221.)

Of course then, it is to be established or negatived in all its essentials, as well as to knowledge as to any other, by the same character and weight of evidence as are necessary to maintain other allegations of fact. It may be established by presumptive, as well as by direct, evidence. Nor, on the other hand, is it exempt from the difficulty, that a presumption may not prevail against direct evidence to the contrary of it. The jury may presume, from all the circumstances of the case, that knowledge or notice existed. Thus, in the case before us, it was in proof that this usage had existed in Buffalo for twenty years or over, that the defendant did then reside in that city, and had resided there for ten years, and that he had been reared as an engineer and builder. From these and other facts in the case, the jury might have made a legitimate presumption, that the defendant came into this agreement with knowledge or notice, and in view of the existence of this usage. But it would have been a presumption, and of fact.

We have seen that there are usages which have become so general and so universally received and acted upon, as that they have become a part of the common law, and no one can be heard to profess ignorance of them. But it is equally true that there are usages so restricted as to locality, or trade, or business, as that ignorance of them is a valid reason why a party may not be held to have contracted in reference to them. There are many cases of this kind collected in notes in Broom's Legal Maxims. (See p. 684 [*691], notes 2 and 3.)

It seems then, to coine to this: Is the presumption, which the jury may thus make conclusive, or may not that presumption be repelled by express negatory proof of ignorance? When the defendant proposed, by the question which was rejected, to offer evidence tending to show his ignorance of the existence of the usage, he claimed no more than to exer

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Opinion of the Court, per FOLGER, J.

cise the right of attempting, by direct evidence, to repel the presumption of his knowledge, which might without that proof, or perhaps in opposition to it, be made from the facts of the case.

It is for the jury then, under proper instructions from the court, to take all the evidence in the case; that as to the existence, duration and other characteristics of the custom or usage, and that as to the knowledge thereof of the parties; and therefrom to determine whether there is shown a custom of such age and character, as that the presumption of law will arise, that the parties knew of, and contracted in reference to it; or whether the usage is so local and particular, as that knowledge in the party to be charged, must be shown affirmatively or may be negatived.

In this view it was proper for the defendant to put and answer the question rejected. For the jury had yet to determine the question of the existence and characteristics of the usage or custom; and as it was not to be assumed what their verdict thereon would be, it was needful that they have before them all the elements, offered by either party, which would assist in the correct determination of all the questions which could arise.

In my judgment, the trial court should have admitted the question.

For this reason, the judgment should be reversed and a new trial ordered, with costs to abide the event of the action.

All concur, except PECKHAM, J., dissenting.
Judgment reversed.

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Statement of case.

49 478 136 575

BERNARD SHERIDAN, Appellant, v. BENJAMIN ANDREWS et al.,

Respondents.

The docketing of a judgment in the office of the county clerk, under the

provisions of the act of 1840 (chap. 386, Laws of 1840), is not essential to the conclusiveness of a judgment in an action to recover possession of real property. If such judgment is docketed by the clerk of the court where rendered, as judgments in courts of record are required to be docketed (2 R. S., 360, § 13), it is sufficient. If the judgment was obtained by default, after three years from such docketing, it is conclusive upon the defendant, and upon all persons claiming from or through him by title accruing after the commencement of the action. (2 R, S.,

309, § 38.) Where, however, one has entered into possession of premises, the sub

ject of such an action, claiming under title not derived from defendant, and accruing before a recovery therein, the subsequent acquisition by him of a title from defendant does not deprive him of the right of claiming possession under the prior title, and the judgment is neither conclusive nor any evidence against him, but in order to dispossess him

plaintiff must prove his title. The only office of a notice of lis pendens is to give constructive notice to,

and to bind by the subsequent proceedings, those who may deal with defendant in respect to the property involved in the action during its pendency and before final judgment. No notice is necessary to make the judgment effectual as against parties claiming under defendant by transfer subsequent to the judgment. The judgment disposes of the rights of the parties, is a matter of public record, and is conclusive both

upon defendant and any subsequent grantee. A notice of lis pendens is unnecessary in an action to recover possession of

real property, even as against a purchaser pendente lite. The plaintiff in such an action can only recover upon a legal title; it is only against mere equities that a purchaser without notice is protected.

(Argued February, 14, 1872; decided May 28, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of defendants rendered by the city court of Brooklyn.

The action was brought to recover possession of certain premises in the county of Kings. The facts are set forth in the opinion.

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