privatum, unalterable, in our opinion, either in the states of the United States, or England, except by legislative enactment."


Usages of a particular business become so well known and universal as to be, as it were, the laws of the trade, and as such are entitled to careful consideration by the courts in order to ascertain the true intention of parties to business contracts.

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A usage of a particular trade may sometimes be proved with a view of raising the presumption that the parties contracted with knowledge of and reference to it, so that it entered into and became part of the contract. known to the parties that it must be supposed In such a case it must be shown that the party

A custom or usage to become a part of a contract must be so far established and so far

that their contract was made with reference to it. For this purpose the custom must be established and not casual-uniform and not varying general and not personal, and known to the parties. Sipperly v. Stewart, 50 Barb. 62. Therefore, a custom to be good must be general, uniform, certain and notorious, and to be binding on parties to a transaction must be directly known to them, or so universal and general in its character that knowledge may well be presumed. Where a contract is made as to a matter about which there is a custom well established, such custom is to be understood 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. Southwestern Freight Co. v. Stanard, 44 Mo.


The Delaware Court gives us the following closely-drawn distinction between usages and customs: "The one must be ancient, even from time immemorial; it is sufficient for the other if it be established, known, certain, uniform and legal. For the purpose of ascertaining the otherwise uncertain meaning of the parties where there is no special contract, such a usage even of a particular person may be proved if it be generally known." Townsend v. Whitby, 5 Harr. 55. But a certain person or class of persons can not establish a usage which may result in injury to other persons or classes, even though it may be general. Thus, if all the railroads in the country were to establish a custom which was unreasonable or dangerous, the generality of the custom will not justify them in case of accident. Hill v. R. R. Co., 55 Me. 438. Proof of knowledge or of facts from

against whom the usage is set up had notice of it at the time of making the contract, or it must be shown to have been so long continued universal and notorious that all persons may be presumed to have notice of it. Wadley v. Davis, 63 Barb. 503. But usage of trade is a matter of fact and not of opinion; it must be proved by witnesses testifying of its existence and uniformity from their knowledge obtained by observation and experience, and not by their conclusions or inferences, as to its effect either upon the contract or the legal rights of the parties. Haskin v. Warren, 115 Mass. 514.

Usage is not to be used to engraft on a contract or sale an obligation different from, or inconsistent with, the rule of the common law on the subject (ib), and it must be in opposition to no statute (Walker v. Trans Co., 3 Wall. 150), or against public policy.

42 Pa. St. 159.

Local customs may be proved with a view of explaining the meaning of particular terms in a written contract, but not to alter its legal effect, for the beauty of the law consists in its uniformity, and, to allow each neighborhood to make its own laws, would be to destroy the law (Dewees v. Lockhart, 1 Texas, 535); thus, a custom by which a man may obtain usurious interest is not good. Greene v. Tyler 39 Pa. St. 361.

In the drawing up of legal papers usage must be regarded especially in the matter of deeds which will be construed by usage. Kirkendall v. Mitchell, 3 McLean, 144.

Lex loci is particularly applicable to usages, for it is only because the custom is supposed to have influenced the parties who act within the sphere of its operation, that it is admissi

ble at all. It must, therefore, be clearly shown that the custom existed at the place where, and time when, the contract or act sought to be affected by it was made or performed. It is only in some exceptional cases that proof of a usage in one place is allowed to show that it existed in another. Walker v. Barron, 6 Minn. 508. The Delaware court, in regard to generality and place, say: "There can be no doubt that the known and received usage of a particular trade and the established course of commercial dealings under it are tacitly annexed to the terms, and constitute a part of a commercial contract. As, for instance, although a draft is on the face of it made payable at a future day certain, yet the three days of grace, according to the known and established custom of merchants, are understood to be annexed to, and constitute a part of the contract. And yet, even quite a number of banks or mercantile firms or houses in a large commercial city, cannot, by their practice, establish a commercial usage, so as to make it binding as such on the trading community generally. The established custom or usage of a trade is the law of that trade, but it does not follow that, because a custom or usage is recognized as obligatory in Philadelphia or New York, that it is recognized as such in Baltimore or New Orleans, or has any force or effect in those cities. The custom or usage in one state may not be the same as in another. The states of the Union, in regard to commercial purposes, stand in the relation of foreign states to each other, so that a custom or usage in one state is not necessarily binding or obligatory upon persons engaged in the same business in another state. And in absence of affirmatory proof you cannot presume the existence of a usage. Mears v. Waples, 3 Houst. 581. However a custom may be proved to exist in all states, or if a custom is not general but confined, even to a certain individual, and is certain and known to the contracting party, we think such a custom would have the same force as though it were universal, and the contract would be presumed to have been made with reference to it. Where a man ordered glass a certain size, and they sent it according to the custom of measurement at the place of manufacture which was entirely different from the custom in the place the glass was ordered, the court held that he had it to pay for though he

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could not use it, as the custom of the place of manufacture would govern before the place of sale. Glass Co. v. Morey, 108 Mass. 570. Thus, his troubled spirit was compelled to be calmed by the sight of a lot of peculiarsized glass, which he had no use for and knew no one who had-his only hope of even partial deliverance, the likelihood of some travelling vendor of glass-cutters, wanting it for practicing material, which was but slight consolation to his wounded spirit and lightened purse.

The only safe way, if you want a peculiar sized article, is to be very sure of the size it will be according to the rule of the place of manufacture, or you may find it comes rather more peculiar in size than you desired.

Boats must conform strictly to the usage of the river, and the descending boat may act under the presumption that the other does not intend to run into her, when the ascending boat has choice of sides (Barret v. Williamson, 4 McLean 589,) and this usage will be used in determining questions of negligence (Myers v. Perry, 1 La. An 372,) as each party must not only comply but presume that others will comply with such custom. Drew v. The Chesapeake, 2 Doug. (Mich.) 33. A custom which holds a person liable for one-half the expense of a party wall is good. 3 Rich. (S. C.) 283. A custom will control the liability of carriers, but to relieve a carrier both the custom and the employer's knowledge must be clearly proven, or at least that it was sufficiently notorious to raise a clear presumption of knowledge. McMasters v. R. R. Co., 69 Pa. St. 374. "Where an agent receives no instructions, he must conform to the of usages the trade or custom applicable to the particular agency; and deviation therefrom, unany less it be justified by the necessity of the case, will render him liable for all loss or injury resulting from it. Thus, if an agent should sell goods on credit when the usage was to make such sales for cash or should omit to present notes taken by him for payment; or should allow further time for the payment of them after they became due; he would be personally responsible. So also if following the usage, he should appoint a sub-agent, the sub-agent would in like manner be responsible. Yet if the compliance with such usage would in a particular case be injurious to the interests of his principal, he will not only not be

bound to comply with it, but if he do, knowing that it will be productive of injurious results, he will render himself personally liable therefor. Thus if an agent should store the goods of his principal in a place which he knew to be dangerous or improper, he would not be justified although similar goods were stored in similar places." 1 Story on Con. 236.

"A usage repugnant to the terms and objects of a written contract is not competent ot control it; as a usage for a master cooper to send his apprentice abroad on a whaling voyage, and receive his earnings on such voyage; or where by the terms of a contract to manufacture bricks, the bricks when made were the joint property of the contracting parties, that one of the parties had no interest in them; or in a written contrac; for the manufacture of retorts, that founders in the absence of an express agreement, should not be held to warrant their castings against latent defects, or in case of apparent defects, they were entitled to have them returned to them in a reasonable time; or when the contract of pledge of stock only provided that it might be transferred after default that it might be transferred at the pleasure of the holder; or where by a policy of insurance the re-insurer is to make a full indemnity within the amount of risk taken by him, that he is chargeable only for such proportion of the loss as the amount of re-insurance bears to the original policy; or for an insurance company, in case of a total loss, to retain two per cent. per month on the balance of the premium notes from the date of the last assessment until the expiration of the terms of the policy, when such usage limits and controls the terms of the policy. So no usage can be sustained in opposition to the established principles of law, as a usage to return a portion of a premium note when the in

not discoverable either in them or the sample by ordinary care; or for the master of a stranded ship to sell the cargo without necessity.

"So also the law refuses to give its sanction to a usage that is absurd or unreasonable, as a usage of ship owners to pay the seamen's advance wages to their own shipping agent, employed to procure a crew and for him in his turn to pay the same to the boardinghouse keeper, who brings the seamen to him; or for merchants of a particular locality engaged in the whaling trade to accept the bills of their masters drawn for supplies furnished abroad.

"When a practice, affecting a particular branch of business in a given locality, ripens into a usage of trade, it is evidence of the intention of the parties engaged in such business to make their contracts in reference to it. The competency of such evidence is an exception to the general rule of evidence, since by it a new provision or stipulation is sought to be engrafted upon the written contract of the parties which cannot be done by evidence of an actual contemporaneous verbal agreement between them. Hence it behooves courts to be exceedingly watchful lest this exception should be extended so far as either to make a new and different contract of an existing written one by poorer evidence, or entirely to defeat it and render it null and void. The danger thus to be apprehended in such cases was foreseen and stated by Judge Story, in The Schooner Reside, 2 Sumn. 569, in which he says: "I rejoice to find that of late years the cases of law, both in England and America, have been disposed to narrow the limits of the operations of such usages and customs and to discountenance any further extension of them." We will add that courts of law, since Judge Story's day, have not been unmindful of their duty in this respect, as the authorities we have cited abund

and cases cited.

surance is effected on a cargo from a particu-antly show." Randall v. Smith, 63 Mo. 105, lar port to a foreign port and back, if the vessel fails to get a return cargo; or, that a vessel warranted to be neutral is not neutral, but only pretended to be; or to shorten the time of presentment, demand, and notice in respect to promissory notes within that fixed by law applicable to such a class of notes; or to make the seller of manufactured goods by sample liable to the purchaser for damages occasioned by latent defects in the goods sold,


A press despatch says that Judge Dyer of the United States District Court, sitting at Milwaukee, on the 12th inst., rendered an important decision in a trade-mark A demurrer to the jurisdiction raised the question of the constitutional power of Congress to legislate upon the subject. It was decided that the constitutionality of the trade-mark statute can not be sustained under the clause which gives to Congress the power to regulate commerce among the several States, nor under any of the provisions of the Constitution which prescribe the legislative power of Congress.

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SHELDON, J., delivered the opinion of the court: On the 19th of May, 1871, appellees, by deed containing the ordinary covenant of general warranty, and the other usual covenants, conveyed to William H. Dewey, the south half of a section of land in Greenwood County, Kansas. Dewey afterwards conveyed the land to Dunlap and Robinson, as trustees, &c., who afterwards, in pursuance of a decree of court, conveyed the same to Edward Scott, the appellant, as their successor in trust. Scott brought this action of covenant against the appellee, upon the covenant of warranty in their deed to Dewey, alleging a breach thereof. Upon a trial by the court, without a jury, the issue was found in favor of the defendant, and a judgment rendered accordingly, from which the plaintiff appealed.

The facts, as presented by the evidence, are that, at the time of the execution of the deed by the appellee, they had no title to the land, but the paramount title to one quarter section of the land was still in the United States, and to the other quarter in one Holman, by virtue of a patent from the United States, issued on the 15th day of August, 1871. The land was vacant and unoccupied. Neither appellant, appellee, Holman or Dewey has ever had actual possession of any of the land. These are all the material facts bearing upon the point of a breach of the covenant of warranty.

The only question presented by the record, which we need to consider, is, whether there can be a recovery in an action of covenant for breach of covenant of warranty, in a case where the land conveyed is, and ever has been vacant and unoccupied, without showing more than an outstanding paramount title. The current of authority is in favor of the negative of the proposition. It is common doctrine, and well established, generally, that the mere existence of a paramount, legal title, which has never been asserted, can not amount to a breach of this covenant. The covenantee, or his assignee, must be disturbed in the possession actual or constructive; he must be evicted or there

must be something equivalent thereto; and in the action the plaintiff must allege and prove an ouster or eviction by a paramount title. It is not necessary, however, that he should be evicted by legal process; it is enough that he has yielded the possession to the rightful owner; or, the premises being vacant, that the rightful owner has taken possession, 3 Washb. Real Prop. 406. Sedgwick on Damages, 6th Ed., 158 Marg.; Greenvault v. Davis, 4 Hill, 643; St. John v. Palmer, 5 Id. 599; Day v. Chism, 10 Wheat. 449; Marston v. Hobbs, 2 Mass. 433; Sprague v. Baker, 17 Id. 586; Jenkins v, Hopkins, 8 Pick. 345; Moore v. Vail, 17 Ill. 185; Mattison v. Vaughn, decided by the Supreme Court of Michigan at its January term, 1878, and see note to Foote v. Burnet, 10 Ohio, 319, for a collection of cases as to what amounts to eviction. This covenant of warranty is regarded as, in effect, a covenant for quiet enjoyment, and can only be broken by something equivalent to an eviction or disturbance of possession by the grantee. 3 Wash. Real Prop. 398. What will be held as equivalent to eviction, authorities may differ concerning; but there is a general concurrence that something more than the mere existence of a paramount title is necessary to constitute a breach of the covenant of warranty.

The cases cited by appellant's counsel from our own reports, of Beebe v. Swartwout, 3 Gilm. 162; Moore v. Vail, 17 Ill. 185; Claycomb v. Munger, 51 Id. 373; Wead v. Larkin, 54 Id. 499, as being supposed to sanction the doctrine that the action may be maintained upon the mere existence of a superior title in another, we regard as falling short of so doing. The last case has no particular application. Beebe v. Swartwout, and Claycomb v. Munger, affirm nothing more than that the covenantee may peaceably and voluntarily yield to the paramount title, not deciding that he may do so, when the adverse title has not been hostilely asserted. In Claycomb v. Munger, a mortgage existing upon land at the time of the execution of a deed with warranty, was subsequently foreclosed, and a deed executed to the purchaser under the foreclosure sale, and acknowledging that the covenant of warranty is broken only upon an eviction, or by something equivalent thereto, it was held that the grantee in the warranty deed might voluntarily yield to the superior title under the foreclosure sale, and purchase it for his own protection, and thereupon maintain suit upon his covenant of warranty. The decision was based upon the authority of Moore v. Vail, supra, among others. Moore v. Vail touches the precise question here involved, and is in direct opposition to the theory upon which this suit is sought to be maintained. It was an action upon a covenant of warranty. The court there, after laying it down that where the premises were in the actual possession of another, who held them under a paramount title, the covenant of warranty was broken, as also that if the covenantee be in the actual possession of the estate, he has the right to yield that possession to one who claims it under paramount title, say: "This, however, is not to be understood as holding that the mere existence of a paramount

title constitutes a breach of the covenant, or that it will authorize the covenantee to refuse to take possession when it is quietly tendered to him, or when he can do so peaceably, and then claim that, by reason of such paramount title, and his want of possession, the covenant is broken; nor will it justify him in abandoning the possession without demand or claim by the one holding the real title. His possession, under the title, acquired with the covenant, is not disturbed by the mere existence of that title; and he has no right to assume that it ever will be, until he actually feels its pressure upon him." And, again: "Until that time [the taking possession by the owner of the paramount title] he might peaceably have entered upon and enjoyed the premises without resistance or molestation, which is all his grantors covenanted he should do. They did not guarantee to him a perfect title, but the possession and enjoyment of the premises." We do not see but what this fully decides the present case against the appellant.

It holds that the mere existence of a paramount title does not constitute a breach of the covenant. That is all there is here. There has been no assertion of the adverse title. The land has always been vacant. Appellant could at any time have taken peaceable possession of it. He has in no way been prevented or hindered from the enjoyment of the possession by any one having a better right. It was but the enjoyment and possession of the premises which was assured to him, and there has been no disturbance or interference in that respect. True there is a superior title in another, but appellant has not "felt its pressure upon him." To sustain the present action would be to confound all distinctions between the covenant of warranty and that of seizin or right to convey. They are not equivalent covenants. An action will lie upon the latter, though there be no disturbance of possession. A defect of title will suffice. Not so with the covenant of warranty, or for quiet enjoyment, as has always been held by all the best authorities. See, too, Rawle on Covenants for Title. 235. 271.

We regard the judgment as right, and it is affirmed.



quence of defects in the track, evidence of defects at other points than where the accident took place, is immaterial.

3. EVIDENCE OF THE GREAT VALUE OF THE CARS is not admissible as tending to show that the railway company were not chargeable with negligence in running them.

4. A CONDUCTOR OF EXPERIENCE IS COMPETENT to express an opinion of the fitness of the ties over which he runs his trains.

5. INJURY EVIDENCE OF ATTENDING PHYSICIAN. -Where one who has suffered injuries for which he claims damages, calls in a physician for the purpose of an examination of his injuries, the physician may testify concerning them. Expressions and exclamations of pain made during the examination can not be testified to by the physician.

6. COMPANY NOT LIABLE FOR LATENT DEFECTS. -Where a railway company procures its cars for the carriage of passengers from manufacturers of established reputation, and an injury occurs in consequence of hidden defects which examination by the company would not have discovered, the company is not responsible for such injury.

CAMPBELL. J., delivered the opinion of the


Suit was brought by Mrs. Huntley for personal injuries suffered on the 5th day of November, 1874, by reason of an accident caused by a passenger car being thrown from the track and upset. The testimony showed that the mischief was caused by the breaking of an axle containing a large flaw, within the wheel or near its edge. Those witnesses who made any actual examination found the flaw entirely within the axle, and covered by a small thickness of sound metal. The suit was tried in April, 1877, about two years and a half after the accident. Mrs. Huntley was injured in the shoulder, and claimed that the injury was permanent. Testimony was introduced bearing upon the condition of the cars and track, and the speed of the train, as well as concerning the character of the injury. The principal questions arise upon the medical testimony and upon the charge; although some other points are presented.

We do not consider it necessary to dwell minutely on the testimony of speed. It was held in D. & M. R. R. v. Van Steinberg, 17 Mich. 99, that questions touching the speed of trains were not properly scientific inquiries, and were not beyond the competency of ordinary witnesses who had means and habits of observation. In this case it may be doubted whether the witnesses were all near enough to observe, and some of them gave no such data as to indicate what the speed was except as to its comparison with ordinary rates. It would be going too far to hold that any increase over ordinary speed was evidence of danger or of negligence. The testimony should at least show approximately what the real rate was, and that it was faster than safety warranted, before the case should be allowed to go to the jury on such a point. The well known liability of all common observers to be deceived as to the rate of speed of heavy trains, renders it necessary to guard as far as pos2. EVIDENCE OF DEFECTS IN TRACK. - Where a sible against vague testimony, which cannot be railway accident is alleged to have occurred in conse- directly met or corroborated by the proof of per

Supreme Court of Michigan.-October Term, 1878.
HON. J. V. CAMPBELL, Chief Justice.







Associate Justices.

1. OPINIONS OF PERSONS RIDING IN RAILWAY CARRIAGES, who are not shown to have a special fitness for judging of the speed the train is moving, are not admissible on that point.

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