CUSTOM. Such a- usage as by common consent and uniform practice has become the law of the place, or of the subject-matter, to which it relates.
Custom is a law established by long usage. Wilcox v. Wood, 9 Wend. (N. Y.) 349. See Pollock, 1st Bk. of Jurispr. 263.
It differs from prescription, which is personal and is annexed to the person of the owner of a particu lar estate ; while the other is local, and relates to a particular district. An instance of the latter oc curs where the question is upon the manner of con ducting a particular branch of trade at a certain place; of the former, where a certain person and his ancestors, or those whose estates he has, have been entitled to a certain advantage or privilege, as to have common of pasture in a certain close, or the like. 2 Bla. Cora. 263. The distinction has been thus expressed: "While prescription is the making of a right, custom is the making of a law;" Laws. Us. & Cust. 15, n. 2.
General customs are such as constitute a part of the common law of the country and extend to the whole country.
Particular customs are those which are confined to a particular district ; or to the members of a particular class ; the exist ence of former are to be determined by the court, of the latter, by the jury. Laws. Us. & Cust. 15, n. 3 ; see Bodfish v. Fox, 23 Me. 90, 39 Am. Dec. 611.
In general, when a contract is made in relation to matter about which there is an established custom, such custom is to be un derstood as forming part of the contract, and may always be referred to for the purpose of showing the intention of the parties in all those particulars which are not expressed in the contract ; 2 Pars. Contr. 652, 663; Fulton Bank et New York v. Benedict, 1 Hall (N. Y.) 602; Van Ness v. Paeard, 2 Pet. (U. S.) 138, 7 L. Ed. 374 ; Stultz v. Dickey, 5 Binn, (Pa.) 285, 6 Am. Dec. 411; 1 M. & W. 476 ; L. R. 17 Eq. 358; Robinson v. Fiske, 25 Me. 401; Bragg v. Bletz, 7 D. C. 105.
Evidence of a usage is admissible to ex plain technical or ambiguous terms; 3 B. & Ad. 728 ; Lane v. Bank, 3 Ind. App. 299, 29 N. E. 613 ; Nonantum Worsted Co. v. Mfg:
Co., 156 Mass. 331, 31 N. E. 293. But evi dence of a usage contradicting the terms of a contract is inadmissible ; 2 Cr. & J. 244; Brown v. Foster, 113 Mass. 136, 18 Am. Rep. 463 ; Farmers' & Mechanics' Nat. Bank of Buffalo v. Logan, 74 N. Y. 586; Exchange Bank of Virginia v. Cookman, 1 W. Va. 69 ; Gilbert v. McGinnis, 114 Ill. 28, 28 N. 'E. 382 ; De Cernea v. Cornell, 1 Misc. 399, 20 N. Y. Supp. 895; Globe Milling Co. v. Elevator Co., 44 Mhm. 153, 46 N. W. 306. Nor can a local usage affect the meaning of the terms of a contract unless it is known to both con tra cting parties ; Chateaugay Ore & Iron Co.
v. Blake, 144 U. S. 476, 12 Sup. Ct. 731, 36 L. Ed. 510; nor can it affect a contract made elsewhere; Insurance Co. of North America v. Ins. Co., 140 U. S. 565, 11 Sup. Ct. 909,. 35 L. Ed. 517.
"Merely that it varies the apparent con tract is not enough to exclude the evidence, for it is impossible to add any material in cident to the written terms of a contract, without altering its effect more or less. To fall within the exception of repugnancy the incident must be such as, if expressed in the written contract, would make it insen sible or inconsistent ;" Per cur. in 3 E. & B. 715. See Leake, Contr. 197; 7 E. & B. 274.
In order to establish a custom, it will be necessary to_ show its existence for so long a time that "the memory of man runneth not to the contrary," and that the usage has continued without any interruption of the right; for, if it has ceased for a time for such a cause, the revival gives it a new beginning, which will be what the law calls within memory. It will be no objection, how ever, that the exercise of the right has been merely suspended. 1 Bla. Corn. 76; 2 id. 31; Freary v. Cooke, 14 Mass. 488; L R. 7 Q. B. 214 ; v. Farnsworth, 80 Me. 500, 15 Atl. 65. See Hyde v. News Co., 32 Mo. App. 298. It must not have begun within legal memory, 1. e. A. D. 1189 ; L. R. [1905] 2 Ch. 538; but a jury may find an immemorial cus tom upon proof of a period of twenty years or so ; 21 L. J. Q. B. 196.