that is in part responsible for the anomalous attitude of the Pennsylvania Court (ante, § 2431) towards the general rule.3

§ 2440. Trade Usage and Custom. Where the parties have not intended to make the document embody the transaction upon a particular topic, its terms may be as well supplied by implied extrinsic agreement as by express extrinsic agreement. In other words, that usage or custom of a trade or locality, which would otherwise by implication form a part of the transaction, will equally form a part when the transaction has been embodied in a document, provided the document was not intended to cover the topic affected by the custom. The test is on principle the same as for express extrinsic agreements; except that in the case of the custom the ordinary presumption is in favor of its implication, because the topics covered by the writing will usually be those which do not concern some known and usual term but vary in each particular transaction:

1836, Parke, B., in Hutton v. Warren, 1 M. & W. 466, 475: "[The inclusion of customs into written contracts] has been done upon the principle of presumption that in such transactions the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but a contract with reference to those known usages." 1854, Coleridge, J., in Brown v. Byrne, 3 E. & B. 703: "In all contracts, as to the subject-matter of which known usages prevail, parties are found to proceed with the tacit assumption of these usages; they commonly reduce into writing the special particulars of their agreement, but omit to specify these known usages, which are included however, as of course, by mutual understanding; evidence therefore of such incidents is receivable. The contract in truth is partly express and in writing, partly implied or understood and unwritten."

1837, Story, J., in The Schooner Reeside, 2 Sumn. 567: "I own myself no friend to the almost indiscriminate habit, of late years, of setting up particular usages or customs, in almost all kinds of business and trade, to control, vary, or annul the general liabilities of parties under the common law, as well as under the commercial law. It has long appeared to me, that there is no small danger in admitting such loose and inconclusive usages and customs, often unknown to particular parties, and always liable to great misunderstandings and misinterpretations and abuses, to outweigh the well-known and well-settled principles of law. And I rejoice to find, that, of late years, the Courts of law, both in England and in America, have been disposed to narrow the limits of the operation of such usages and customs, and to discountenance any further extension of them. The true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising, not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character. It may also be admitted to ascertain the true meaning of a particular word, or of particular words, in a given instrument, when the word or words have various senses, some common, some qualified, and some technical, according to the subject-matter to which they are applied. But I apprehend that it never can be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and, a fortiori, not in order to contradict them. An express contract of the parties is always admissible to supersede, or vary, or control a usage or custom; for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled, or varied, or contradicted by a usage or custom; for that would not only be to admit parol evidence to control, vary, or contradict written contracts, but it would be

3 The unsoundness of that theory of fraud is well expounded in an opinion by Allen, P., in Towner v. Lucas (1857), 13 Gratt. 705, 716.

to allow mere presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary, or contradict the most formal and deliberate written declarations of the parties."

The application of the rule in a given instance depends entirely on the nature of the transaction and the terms of the particular document, and precedents are of little service.1

§ 2441. Novation, Alteration, and Waiver; Subsequent Agreements. The general rule now under consideration rests on the assumption that a specific

1 The following will suffice as examples; distinguish the cases cited post, §§ 2462, 2464 (usage to interpret the words in a document): Eng: 1779, Wigglesworth v. Dallison, 1 Doug. 201 (lease for 21 years; custom for the tenant to take crops sown before expiration of the lease, admitted); 1800, Ougier v. Jennings, 1 Camp. 505, note (policy on a ship from Newfoundland to Portugal" beginning the adventure from the loading thereof"; usage admitted to include an intermediate loading before the voyage to Portugal); 1808, Vallance v. Dewar, 1 Čamp. 503 (policy on a ship at and from any port or ports in Newfoundland"; usage admitted to include an intermediate voyage after arrival in Newfoundland and before starting homeward); 1816, Yates v. Pym, 6 Taunt. 446 (written sale of bacon; trade usage requiring inspection of defects before a certain time, excluded); 1832, Blackett v. Ins. Co., 2 Cr. & J. 244, 249 (policy on a ship, tackle, apparel, etc.; a usage of underwriters not to pay for boats hung outside the ship on the quarter, excluded, since the policy was "upon the face of it, upon the whole ship, on all her furniture, and all her apparel "); 1838, Bottomley v. Forbes, 5 Bing. Ñ. C. 121 (a charter-party provided for the payment of freight on cotton, "cotton to be calculated at 50 cubic feet per ton"; cotton after unloading expands so that the cubic measurement at loading and unloading differ greatly; a usage to measure at the shipper's warehouse was admitted); 1843, R. v. Stoke-upon-Trent, 5 Q. B. 303 (contract to work "from the 11th day of November next until the 11th November 1817"; a custom in that branch of manufacturing "to allow holidays at certain fixed times of the year," on the ground that "its notoriety makes it virtually part of the contract"); 1848, Syers v. Jonas, 2 Exch. 111, 116 (usage in the tobacco trade that sales should be conditioned on correspondence with sample, admitted; "such usage is admissible whenever it is not expressly or impliedly excluded by the tenor of the written instrument "); 1854, Brown v. Byrne, 3 E. & B. 703 (bill of lading agreeing to pay "freight § d. per pound, with 5 per cent primage, and average accustomed," and saying nothing about time of payment or discount; a local custom to allow 3 mos. discount, admitted); 1859, Martin, B., in Langton v. Higgins, 4 H. & N. 401, 408 (sale of goods in writing, and issue as to time of delivery to pass title; "they cannot add to the writing by showing that at the time the contract was made they had been accustomed to do something further"); U. S.: 1903, Withers v. Moore, 140 Cal. 591, 71 Pac.

VOL. IV.

66

697 (custom as to alteration of coal prices, excluded); 1841, Kilgore v. Bulkley, 14 Conn. 362, 391 (note falling due on a date which was Sunday; local usage admitted to show that in such cases the note was payable on the Saturday before; clear opinion by Storrs, J.); 1885, Gilbert v. McGinnis, 114 Ill. 28, 28 N. É. 382 (sale of crn, with an agreement by the buyer to make "advances" of money; a custom among grain merchants to make such an advance only upon a note by the seller for the amount advanced, excluded); 1890, Scott v. Hartley, 126 Ind. 239, 25 N. E. 826 (sale of grain at 50 net"; a custom to deduct freight paid by the consignee, excluded); 1893, Destrehan v. Lumber Co., 45 La. An. 920, 924, 13 So. 230 (custom of measuring, etc., allowed, to supply the contract on matters not covered by the writing); 1900, Menage v. Rosenthal, 175 Mass. 358, 56 N. E. 579 (salesman's contract to travel "throughout the New England States"; custom to stay and work in New York "whenever trade is in town," excluded); 1898, Germain v. Lumber Co., 116 Mich. 245, 74 N. W. 644 (custom as to taking away logs, not admitted on the facts); 1895, Fairly v. Wappoo Mills, 44 S. C. 227, 22 S. E. 112, 114 ("sold 2000 tons, seller paying brokerage at 10 cents per ton"; evidence of a custom to pay brokerage on only the amount delivered, not the amount contracted for, was rejected); 1895, Richards Co. v. Hiltebeitel, 92 Va. 91, 22 S. E. 806 (a contract specifying the prices for laying bricks; local usage admitted as to the method of ascertaining the quantities laid); 1897, Hansbrough v. Neal, 94 id. 722, 27 S. E. 593 (custom admitted to fix the value of services).

From the foregoing rule are to be distinguished three other classes of questions in which usage becomes material: (a) The question of contract, whether a particular usage may be implied into a contract, supposing it not to have been reduced to writing; and the doctrine that a local custom will not be added by implication alone to the terms of a contract, where a definite rule of law obtains to the contrary (Barnard v. Kellogg, 1870, 10 Wall. 383); (b) The question of standard of interpretation, whether a term used in a transaction, written or oral, is to be interpreted by a usage not known to both parties (post, § 2464); (c) The further question of interpretation, whether a usage adopted by both parties can be allowed to displace the general meaning of a word when contrary to the usage (post, § 2462); the cases involv ing this question are often apt to be confused with cases involving the rule here under consideration about varying the terms of a document. 3441

All dis

transaction has been embodied exclusively in a single document.
tinct and separate transactions may therefore be established and availed of,
whenever they are in themselves valid. Now a transaction subsequent in
time must always be a separate transaction. The rule of exclusion can only
apply to negotiations contemporaneous in time, or prior but incomplete.
Where a document, for example, is executed on July 1, it may be held to
embody the final and exclusive result of negotiations before and up to the
time of execution; but a transaction on August 1 must be a separate one and
therefore can never be excluded, so far as the effect of the document of July 1
is concerned. It may be that some rule of form (post, § 2454) will some-
times make the transaction of August 1 invalid in itself (as when a writing
is required by the statute of frauds, or where a parol release will not discharge
a sealed contract); but the present rule can interpose no obstacle. In partic-
ular, any subsequent agreement altering, waiving, discharging, or otherwise
novating a prior transaction is not excluded by reason of the prior transaction
having been reduced to writing:

1833, Denman, C. J., in Goss v. Lord Nugent, 5 B. & Ad. 58: "By the general rules of the common law, if there be a contract which has been reduced into writing, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made, or during the time that it was in a state of preparation, so as to add to or subtract from, or in any manner to vary or qualify the written contract; but after the agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreements, or in any manner to add to, or subtract from, or vary or qualify the terms of it, and thus to make a new contract; which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement. And if the present contract was not subject to the control of any act of Parliament, we think that it would have been competent for the parties, by word of mouth, to dispense with requiring a good title to be made to the lot in question, and that the action might be maintained. But the Statute of Frauds has made certain regulations as to contracts for the sale of lands."

The application of this principle varies in practice according to the nature of the particular legal right and the actual separation of the transactions in time.1

§ 2442. Miscellaneous Applications of the Rule to exclude or admit “Collateral" Agreements. It does not seem possible to generalize further than on

1 The following rulings will serve as examples: 1773, Milton v. Edgworth, 5 Bro. P. C. 313 (the rate of interest on a mortgage loan made in writing may be reduced by subsequent oral agreement); 1892, Guidery v. Green, 95 Cal. 630, 634, 30 Pac. 786 (oral agreement that another instrument should be substituted for the one in question, admitted); 1892, Chicago B. & O. R. Co. v. Dickson, 143 Ill. 368, 32 N. E. 380 (agreement not to ride in stock-car; a practice of the railroad to permit it, admitted as a waiver); 1837, Eaves v. Henderson, 14 Wend. 190 (though a contemporary agreement to apply other claims in set-off of a note was excluded, a subsequent agreement to accept them

in payment was admitted); 1896, Harris v.
Murphy, 119 N. C. 34, 25 S. E. 708 (contract
for work and labor in raising a barge; a sub-
sequent alteration admitted); 1896, Dunklee v.
Goodnough, 68 Vt. 113, 34 Atl. 427 (subse-
quent agreement relating to the mode of pay-
ment; admitted); 1899, Keating v. Pacific S. W.
Co., 21 Wash. 415, 58 Pac. 224 (the plaintiff
signed shipping-articles as seaman; on board-
ing the vessel, he found a sail unseaworthy;
he had then the right to abandon the voyage,
and a parol agreement by the ship not to use
the defective sail was a new contract which
could be availed of).

the preceding topics. The application of the rule, resting as it does upon the parties' intent, can be properly made only after a comparison of the kind of transaction, the terms of the document, and the circumstances of the parties. Even in the foregoing classes of transactions, it is rarely that the circumstances of a particular case cannot justify a special result contrary to the ordinary one. Such is the complexity of circumstance and the variety of documentary phraseology, and so minute the indicia of intent, that one ruling can seldom be of controlling authority or even of utility for a subsequent one. The opinions of judges are cumbered with citations of cases which serve no purpose there except to prove what is not disputed, the general principle. Other than in relation to some of the foregoing topics which have broad and uniform bearings, individual rulings can have little value as precedents unless the entire detail of the documents and circumstances is set forth; and an abbreviation of them is therefore more likely to mislead than to profit. The application of the rule should in almost all instances be left (ante, § 16) to the trial judge's determination.1

1 The following citations may serve to illustrate the variety of application of the rule: England: 1769, Preston v. Merceau, 2 W. Bl. 1249 (in an action for rent on a house-lease "for 21 years at 26/. per annum," the lessor, who owned the house only, was not allowed to prove a further agreement by the defendant to pay the ground rent of 21. 12s. 6d. a year); 1808, Higginson v. Clowes, 15 Ves. Jr. 516 (auctionsale in writing of lots of land, the purchaser "to take the timber at a fair valuation"; the auctioneer's oral statement at the sale that the timber of each lot was to be valued separately, excluded); 1838, Ellis v. Thompson, 3 M. & W. 445, 452 (sale of lead, "deliverable in the river Thames"; "the question of reasonable or not reasonable time is collateral to the contract"); 1845, Eden v. Blake, 13 id. 614 (at an auction sale the catalogue described an article as silver, but the auctioneer before selling announced publicly that it was only plated; the defendant bought but refused to accept; held, that the oral declaration of the auctioneer could be received, subject to the jury's finding that the catalogue was understood by the buyer not to be the exclusive basis of the purchase; "the sole question is, what were the terms upon which this article was sold? Are they in writing?

.. It is for the jury to say whether the contract existed in the printed particulars alone or partly in them and partly in parol"); 1871, Morgan . Griffith, L. R. 6 Exch. 70 (lease of grass land; oral agreement by the landlord to destroy the rabbits, held "collateral to the lease") 1875, Angell v. Duke, 32 Law T. Rep. N. S. 320 (lease of premises, with the furniture on the premises; an agreement by the lessor to put in more furniture, excluded); 1894, Grimston v. Cunningham, 1 Q. B. 125 (written agreement to employ an actor; oral agreement to give him certain parts, excluded); United States: Ala.: 1897, Brewton v. Glass, 116 Ala. 629, 22 So. 916 (written agreement to build waterworks, etc.; oral agreement to give bond for faithful

performance, excluded); Ark.: 1898, Rector v. Bernaschina, 64 Ark. 650, 44 S. W. 222 (written agreement to board "three persons"; oral agreement specifying the three, excluded); Cal.: 1897, Bradford S. Co. v. Joost, 117 Cal. 204, 48 Pac. 1083 (agreement as to the use of collateral security); 1897, Wolters v. King, 119 id. 172, 51 Pac. 35 (written agreement for commissions; oral agreement as to time of payment received); Colo. 1896, United States M. A. Ass'n v. Kittenring, 22 Colo. 257, 44 Pac. 595 (oral agreement different from terms of policy; excluded); Fla.: 1897, Chamberlain v. Lesley, 39 Fla. 452, 22 So. 736 (papers not purporting to contain the whole agreement; other evidence admitted); Ida.: 1897, First Nat'l Bank v. Bews, 5 Ida. 678, 51 Pac. 777 (mortgage of building, etc.; oral agreement of mortgagees to insure for $25,000, excluded); Ind.: 1855, Noble v. Epperly, 6 Ind. 468, 471 (replevin; written agreement between the parties affecting an alleged partnership; their true intent in making the agreement allowed to be shown, on the facts); 1859, Draper v. Vanhorn, 12 id. 352 (treated as similar); 1859, Williams v. Dewitt, 12 id. 309, 312 (writi..g containing terms of arbitration, held exclusive); 1896, Smith v. McClain, 146 id. 77, 45 N. E. 41 (the fact rejected that a quitclaim deed transferring the interest of heirs to an estate was intended merely as a partition, and therefore merely severed unity of possession without conferring additional title); 1898, Lowry v. Downey, 150 id. 364, 50 N. E. 79 (exchange of land by deeds; oral agreement by one party to pay off an incumbrance on the land conveyed, admitted); Ia.: 1894, Lerch v. Times Co., 91 Ia. 750, 60 N. W. 611 (written lease; oral agreement to put in a steam-heating apparatus, excluded); 1897, Beeson v. Green, 103 id. 406, 72 N. W. 555 (deed containing assumption of mortgages; grantee not allowed to deny the agreement); Kan.: 1899, Milich v. Packing Co., 60 Kan. 229, 56 Pac. 1 (contract between next of kin and one charged with

§ 2443. Rule applied to Negotiable Instruments; General Principle. The general principle of Integration (ante, § 2425)-in other words, the rule