USAGE. Uniform practice.
Usage and custom are now used inter changeably, though custom seems to have been originally confined to local usages im memorially existing; Browne, Us. & Cust. 13.
A usage must be established ; that is, it must be known, certain, uniform, reasonable, and not contrary to law; but it may be of very recent origin; 4 B. & Ald. 210; McMas ters v. 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 noth ing is said to the contrary ; Hostetter v. Park, 137 U. S. 30. 11 Sup. Ct. 1, 34 L. Ed. 568.
The usages of trade afford ground upon which si proper construction may be given to contracts. By their aid the indeterminate in tention of parties and the nature and extent of their contracts arising from mere implica tions or presumptions, and acts of an equivo cal character may be ascertained; and the meaning of words and doubtful expressions may become known ; McComber v. Parker, 13 Pick. (Mass.) 182 ; 2 C. & P. 525; Mechan ics' 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 lo cality, it need not be so ancient "that the memory of man runneth not to the contrary," nor that it should contain all the other ele ments 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 ambigiiities and uncertain ties in a contract, or to annex incidents, .but it cannot destroy, contradict or modify what is otherwise manifest. It cannot make a con tract where there is one, nor prevent the ef fect of settled rules of law; First N. Bk. v. Burkhardt, 100 U. S. 686, 25 L. Ed. 766, fol lowed 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; evi dence of an established custom among men in the same line of work is not admissible to justify negligence per Larson v. Ring, 43 Minn. 88, 44 N. W. 1078 ; evidence is admis sible in a suit on a fire policy to show wheth er 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 0. & 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.
Modern English cases incline to extend the functions of usages, but in America the authorities vary greatly ; Lawson, Us. & Oust. 25; 7 E. & B. 266 ; Van Horn v. Gil bough, 10 Wkly. Notes Cas. (Pa.) 347.
See CUSTOM ; Lawson ; Browne, US. & Oust.