such as salaries of public officers and pensions, are generally held incapable of being anticipated in this way for reasons of public policy. Contracts to sell future goods must be carefully distinguished from contracts to furnish work and materials. The distinction is sometimes important under the Statute of Frauds: thus an agreement to deliver at a future date an automobile or a carriage of a stock type, would, if the price were sufficient, require writing, whereas a similar agreement to furnish a special type, made to order, would not. (Goddard v. Binney, 1874, 115 Mass. 450.) Cf. Uniform Sales Act, Sec. 4.

A similar question as to whether the terms of the Sales Act apply to a transaction resembling a sale, namely, the furnishing of food and entertainment, is discussed obiter in the preceding section.

The furnishing of certain services of a wide public interest, such as those of the carrier of goods and passengers, banks, insurance companies, telephone and telegraph companies, is, as indicated in §35, supra, subject to public regulation, as well as to certain inherited limitations upon the freedom of contract, discussed in §§52 and 52a, supra. The object, in the main, of these regulations is to insure to the public fair treatment in the matter of service and prices, and security against loss from mismanagement or insolvency. In other respects the contracts made with reference to these services have become subject to the ordinary laws of commercial contracts, though each business has its own usages and customs, similar in scope to those discussed in the following sections.

The numerous contracts involved in safeguarding and facilitating credit operations are treated with greater particularity (§§270-340, infra) as are those involved in the various plans of business organization (§§341-431, infra).

$202. From John Cassan Wait, Engineering and Architectural Jurisprudence (1898), p. 531-" Usages and customs are especially annoying to young and inexperienced engineers and architects, who read a contract and its accompanying specifications in the light and understanding of their schoolbooks or of the popular meaning of the terms employed; whose

understanding of the words 'cord' or 'perch,' etc., is that number of cubic feet given by their arithmetics or described by the lady teachers of their childhood. An experienced engineer would read between the lines, 'as it were,' and a 'cord' to him would mean several things either a load of given weight or 100 or 128 cubic feet. Novices may marvel at interpretations given to terms of contract by trades, sometimes in plain contradiction to the usual meaning of the words employed, but the meaning adopted by the trade or business which employ them, will be the meaning given to them by the courts.

If accidents occur or injuries result from negligence or delay, the liability for such injury is often a matter of custom or usage. The liability of one party as against another for patterns, molds, or requisite appliances to prosecute or complete the work is sometimes a question of custom, as is also the meaning of words, terms, and phrases, and therefore the proper performance and completion of a contract or the skillful execution of a piece of work.

It may seem strange that it can be successfully maintained that a perch in a contract means 25 cubic feet, or that 1000 must be taken to mean 100 dozen, or 1200; or that black means white, or that a contract to pay for brick per 1000 means to pay for brick never laid or furnished; yet these are instances of the effect of usage on the interpretation of contracts.

All trades and businesses have trade usages and trade customs which may differ, even for different localities in the same trade, and since courts recognize them and employ them to construe the meaning of contracts, it is essential to know: (1) What constitutes a usage of custom; (2) when they may be employed to explain the meaning of contracts; (3) how may they be shown or proved; (4) usage of what place controls; (5) instances and terms defined.

$203. Business Customs and Law. So far as usage and custom control in the interpretation of terms in an agreement very much as law does, the lawyer must be guided in his judgment by his business client. It is true, of course, as Lord Mansfield says, that if a point of law is "once solemnly settled, no par

ticular usage shall be admitted to weigh against it; this would send everything to sea again." Nevertheless, Lord Mansfield's greatest accomplishment consists in the very act of transforming trade customs into legally recognized rules and principles. No sharp line can be drawn between the customs of a trade and its law, though it is true that the road through which a custom gets into the law is more likely to be legislation than adjudication today.

$204

PENNELL v. DELTA TRANSPORTATION CO. Supreme Court of Michigan, 1892. [94 Michigan 247.]

LONG, J.: This action was commenced in justice's court, and after a trial there appealed to the circuit, where, upon the trial before a jury, plaintiff had verdict and judgment for $29.78.

It appears that the plaintiff entered into a verbal contract with the defendant through defendant's agent, Capt. Field, who was in the employ of defendant as captain of a boat running on what is known as the "Inland Route," through Cheboygan county, by the terms of which the plaintiff was to clean out Crooked river from snags, logs, stumps, etc., that obstructed the channel. He was to be allowed two dollars per day, and the same for all help which he might employ. He hired two men, and entered upon the work the next day. Upon the completion of the work, plaintiff was paid the two dollars per day for himself and each man, as the contract stipulated. He then presented a bill for board of himself and men during the time employed. It is conceded that nothing was said about the board of himself and men at the time the contract was entered into, but on trial the court permitted the plaintiff to give evidence of a custom or usage in that community to pay the board of men employed in certain kinds of business. This evidence was admitted under objection of defendant's counsel. It was shown by several witnesses for the plaintiff that a custom existed among lumbermen in that vicinity to pay the board of the men who were engaged in running logs down the streams, and cleaning out streams for the purpose of running logs. It was also shown that Capt. Field, defendant's agent, had resided in that vicinity for five years and upwards. Capt. Field was called as

1Edie and Laird v. The East India Company (1761), 1 Wm. Blackstone 295. A discussion of the conditions necessary to make usage binding upon parties may be found in Morse on Banks and Banking, 4th ed., Sec. 9.

a witness by defendant, and asked if he knew of any such custom. The answer was objected to by plaintiff's counsel as incompetent, and it was ruled out by the court. . . .

The court charged further: "The custom must be general, and it must be uniform. It must not vary from time to time. It must be an established custom; that is to say, a custom which would spring up at the time this contract was made, and continue from that time to the present, would not be an established custom. This must be the custom of that vicinity; it must be general, universal." Continuing, the court said: "Now, if you find that such a custom existed, and that this contract was made in relation to such custom, or that it was so well established and universal that all persons in that vicinity would be supposed to know the custom, and make their contracts in relation to it, then you will bring in a verdict for the plaintiff."

We think the court was in error in refusing to permit the defendant's agent to testify that he had no knowledge of such a custom; and that the court was also in error in refusing to give the defendant's second, third, and fourth requests to charge, as well as in the charge as given. Where the custom or usage is restricted to a certain locality, or business, though it has become general and uniform in that locality or in that particular business, and the custom is relied upon as a ground of recovery, it is settled, we think, that such custom is not conclusive on the party, so that he may not give evidence that it was unknown to him.

In cases where evidence of usage is admissible at all, it is only on the ground that the parties who made the contract are both cognizant of the usage, and must be presumed to have made their engagements in reference to it. Van Hoesen v. Cameron, 54 Mich. 614. The decisions in this state are uniform that custom cannot change a definite contract, and that no custom is binding which is not certain, definite, uniform, and notorious. Lamb v. Henderson, 63 Mich. 305, and the cases there cited. In the above case it was said by Chief Justice Campbell: "No attempt was made to bring notice of this usage to the knowledge of plaintiff." The defendant in that case sought to set up a custom to defeat the payment of certain traveling expenses to one of his salesmen during the time he spent at the home office.

The court in the trial of the present case should not only have allowed Capt. Field to answer the question, and given the requests to charge asked, but should have also instructed the jury that the plaintiff could not recover unless they found that the parties contracted in reference to this custom; and in determining the question they should consider the testimony of

defendant's agent, who made the contract. Higgins v. Moore, 34 N. Y. 425.

Judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.

$205

HAYDEN v. FREDERICKSON.

Supreme Court of Nebraska, 1898. [55 Nebr. 156.]

SULLIVAN, J.: By this proceeding in error Hayden Bros. seek to reverse a judgment rendered against them by the district court of Douglas county in an action based on the following contract:

"This is to bear witness that Nicholas Frederickson has this day sold and delivered to Hayden Bros. a stock of linens, flannels, domestics, blankets, quilts, and all patterns that are staple and down to date, and everything belonging to the linen and domestic department of the Bell Department Store, of Omaha, Nebraska. It is hereby agreed and understood that said Hayden Bros. pay to said Nicholas Frederickson therfor cash at the completion of the inventory, at the rate of ninety (90) per cent. of the original contract price of said goods, without discount. And it is further agreed that said Hayden Bros. pay to Nicholas Frederickson the sum of $250 to bind the bargain at the signing of this agreement.

"Witness our hands this 16th day of September, 1893.
"Nicholas Frederickson.
"Hayden Bros."

The verdict in favor of the plaintiff was returned in response to a peremptory direction of the trial court. The controversy results from the refusal of the defendants to accept and pay for the patterns mentioned in the contract. This refusal they attempted to justify at the trial on the ground that the patterns were not "staple and down to date." In making the invoice and ascertaining the patterns that answered the requirements of the contract the plaintiff used an album issued for the then current year by the manufacturer of the patterns. The contention now is that this album was the exclusive criterion by which to determine whether the patterns were "staple and down to date." The trial judge, it is quite evident, took this view of the matter, for he excluded the testimony of competent witnesses offered by the defendants for the purpose of showing that the patterns were not staple on account of the condition of the sealed envelopes in which they were contained and in which they would be kept