Randall v. Smith.

themselves are personally liable. The court said, that "apart from the evidence of custom it is quite clear that upon a contract framed as this is, the defendants could not be personally liable. The evidence of the usage was admitted on the ground that it only added a term to the contract, or, in other words, to make the contract, which prima facie was that of the principal, likewise binding on the agent personally in a particular event. BRETT, J., said: "It is clear, however, that no such evidence can be admitted to contradict the plain terms of a document. If evidence were tendered to prove a custom that the defendants should be liable as principals under all circumstances, that would contradict the document; but it has been decided that, though you cannot contradict a written document by evidence of custom, you may add a term not inconsistent with any term of the contract," and this language expressed substantially the views expressed by the other judges — as well as the grounds of the decisions in Humfrey v. Dale and Fleet v. Murton, supra.

To permit usage to govern and modify the law in relation to dealings of parties it must be uniform, certain and sufficiently notorious to warrant the legal presumption that the parties contracted with reference to it. Citizens' Bank v. Grafflin (31 Md. 507), 1 Am. Rep. 66; Rapp v. Palmer, 3 Watts (Penn.), 178; Parksdale v. Brown, 1 Nott & M. 519; Harper v. Pond, 10 Ind. 32: Smith v. Gibbs, 44 N. H. 335; Shackelford v. New Orleans, etc., R. R. Co., 37 Miss. 202. Evidence of particular usage to add to, or in any manner affect the construction of a written contract is admitted only on the principle that the parties who made the contract were both cognizant of the usage, and are presumed to have made the contract in reference to it. See Kirchner v. Venus, 12 Moore's P. C. C. 361; Myer v. Dresser, 16 C. B. (N. S.) 646; Appleman v. Fisher, 34 Md. 540; Southwestern Freight Co. v. Standard, 44 Mo. 71. See, also, Walls v. Bailey, 10 Am. Rep. 407, wherein the subject is very elaborately discussed, and the authorities examined by the Court of Appeals of New York.

A usage may be proved, though not ancient or general. Townsend v. Whitby, 6 Harr. (Del.) 55. But in Bissell v. Ryan, 23 Ill. 571, it was said that "the true test of a commercial usage is its having existed a sufficient length of time to have become generally known, and to warrant a presumption that contracts are made in reference to it." Also Leggat v. Sands' Ale Co., 60 Ill. 158; Heb

ler v. McCartney, 31 Ala. 507; Winsor v. Dillaway, 4 Metc. 221.

Whether a contracting party has knowledge of a usage or particular custom is a questoin of fact for the jury. Berkshire Woolen Co. v. Proctor, 7 Cush. 417. Where a party is sought to be bound by a particular usage, and the only evidence of the intention of the parties to adopt it, as applicable to their contract, is the fact of its existence, such usage must be clearly shown to be general and uniform, so as fairly to give rise to the presumption that the parties were acquainted with it, and intended to contract with reference to it. But where their knowledge or intentions are established by other direct or circumstantial proof, their contract will be governed by the usage, however local or partial, in reference to which it is proved or persumed to have been made. 1 Duer on Insurance, 258; Merchants' Mutual Ins. Co. v. Wilson, 2 Md. 217; Foley & Woodside v. Mason, 6 id. 50; Gabay v. Lloyd, 3 B. & Cr. 793; Appleman v. Fisher, 34 Md. 510. It is a presumption of law that a man is aware of a general usage existing in a place where he traffics. Dwight v. Whitney, 15 Pick. 179; Goodenew v. Tyler, 7 Mass. 36. But this presumption may be rebutted. Walls ▼ Bailey, supra. Nevertheless a usage may be so notorious, universal and wel established, that knowledge thereof will be conclusively presumed. Walsh v Mississippi, 52 Mo. 434; Wadley v. Davis, 63 Barb. 501.

Randall v. Smith.

Usage or custom must be reasonable, or rather "not unreasonable," which is not always, as Lord COKE says (1 Inst. 62), “to be understood of every learned man's reason, but of artificial or legal reason, warranted by authority of law; upon which account a custom may be good, though the particular reason of it cannot be assigned." It has been held that a custom or usage is not reasonable if an honest or right-minded man would deem it unfair or unrighteous. Paxton v. Courtnay, 2 F. & F. 131; see also Leuckhart v. Cooper, 3 Scott, 521; Southwestern Freight, etc., Co. v. Stanard, 44 Mo. 71; Wilkes v. Broadbent, 1 Wils. 63. Where evidence of a usage has been admitted therefore, evidence tending to show that it is unreasonable may be given in reply. Bottomly v. Forbes, 5 Bing. N. C. 128.

Usage of trade must be proved by instances, and cannot be supported by evidence of opinion merely. Cunningham v. Fonblanque, 6 C. & P. 44; Garey v. Meagher, 33 Ala. 209; Chesapeake Bank v. Swan, 29 Md. 483; Mills v. Hallock, 2 Edw. Ch. 652; Haskins v. Warren, 115 Mass. 514.

Usage of trade is a general and prevailing course of business, and witnesses who are called to prove it, should cause their minds to revolve over instances known to them of its having been acted in. Hall v. Benson, 7 C. & P. 911; see Chenery v. Goodrich, 106 Mass. 566.

As a general rule, one witness is not

sufficient to prove a custom. Thomas v. Graves, 1 Mill. (S. C.) 309; Wood v. Hickok, 2 Wend. 501; Bissell v. Ryan, 23 Ill. 566; Watts v. Lindsay's Heirs, 7 Wheat. 158, but see Partridge v. Forsyth, 29 Ala. 200; Vail v. Rice, 5 N. Y. 155.

So an isolated instance is not sufficient to prove usage, nor will evidence of the custom of one person be sufficient to establish usage. Burr v. Sickless, 17 Ark. 428; nor is proof of four instances, during two years, in which a bank departed from the law merchant as to the time of giving notice to an indorser, Bufficient to establish a usage binding on the indorsee. Adams v. Otterback, 15 How. (U. S.) 339.

Usage is frequently resorted to, to show that words used in a contract are used in a peculiar, technical or local sense, but the proof of such a usage must be clear and irresistible. Lewis v. Marshall, 7 M. & G. 729; 8 Scott's N. R. 477. Thus usage has been proved to explain the meaning of the following words: "inhabitant," Rex v. Mashiter, 6 A. & E. 153; "level," as understood by miners, Clayton v. Gregson, 5 id. 302; "thousand," Smith v. Wilson, 8 B. & Ad. 728; weeks," Grant v. Maddox, 15 M. & W. 737; "months," Jolly v. Young, 1 Esp. 186; "days," Cochran v. Retberg, 3 id. 121; "fur," Astor v. Union Ins. Co., 7 Cow. 202; corn," Mason v. Skurry, Parks. Ins. 245; “pig iron," Mackenzie v. Dunlop, 8 Mackf. S. C. 26; "freight," Peisch v. Dickson,

66

1 Mason, 11; "salt," Jrumee v. Bourdieu, Parks. Ins. 245; "barrels," Miller v. Stevens, 1 Am. Rep. 139; "roots," as used in insurance policies, Coit v. Commercal Ins. Co., 7 Johns. 385; "outfits," Macy v. Whaling Ins. Co., 9 Meto. 354; "day's work," Hinton v. Lock, 5 Hill, 437; "wholesale factory price," Avery v. Stewart, 2 Conn. 69; "after proof and adjustment thereof," Allegre v. Ins. Co., 6 Harris & Johns. 408; cargo," Allegre v. Ins. Co., 2 Gill. & Johns. 137; "Sea-letter," Seyht v. Rhinelander, 1 Johns. 192; "inevitable dangers of the river," Gorden v. Little, 8 Serg. & R. 533; but see Core v. Hadley, 20 Penn. St. 247. For other instances see United States Digest, title Usage," where is a full collection of the American cases. — REP.

Railroad Commissioners v. Portland and Oxford Central Railroad Co.

RAILROAD COMMISSIONERS V. PORTLAND AND OXFORD CENTRAL RAILROAD COMPANY.

(68 Me. 269.)

Railroads — are public highways — duties of corporations ministerial and under public control. Constitutional law.

Railroads, whether built, owned and conducted by the State or by private corporations, and whether exacting tolls or free, are public highways. In consideration of the franchise they receive from the State, railroad corporations agree to perform certain duties toward the public, and the power of determining those duties and enforcing their performance is vested in the appropriate tribunals of the State.

By the charter of the P. Railroad Company it was provided, among other things, that the corporation should "be obliged to receive at all proper times and places" persons and articles for transportation, etc. That the legislature should have the right to inquire into and correct abuses of the franchise, but that the charter should not be revoked, annulled, altered, limited or restrained without the consent of the corporation, etc., and that the president and directors should have "authority to exercise all the powers granted the corporation for locating, building, completing and running the road." The railroad commissioners under the provisions of an act passed subsequent to the charter, ordered the company to build and maintain a station for the receipt of goods and passengers at a specified place on its line. Held, (1) that the duties imposed upon the corporation were ministerial to do and perform what public convenience should require, and (2) that it was not in the discretion of its directors to determine ultimately what their duties were; (3) and that the legislature had the constitutional right and authority to confer jurisdiction over the subject, and nothing in the act conferring it conflicted with the charter of the corporation. State v. Noyes, 47 Me. 405, distinguished.

P

ETITION by the railroad commissioners praying that the court will enforce an order made by them directing the building and maintenance by the Portland and Oxford Central Railroad Company of a depot for freight and passengers at Hartford Centre upon its line of railroad. The facts were these: Upon the petition of certain citizens of Hartford, on the 15th of May, 1871, under the provisions of chapter 204 of the general laws of 1871, a hearing was had before said commissioners to determine whether such depot should be established. The commissioners granted the petition and directed the erection of a building, particularly described in a

Railroad Commissioners v. Portland and Oxford Central Railroad Co.

place specified. The railroad company refused compliance. The court below decided pro forma in favor of the commissioners, and it was agreed that upon the hearing before t..is court the question whether the railroad company were entitled to a hearing before the court as to the necessity and convenience of the depot at the specified place was also to be determined. The railroad company excepted. Other facts appear in the opinion.

Samuel H. Blake, for railroad commissioners.

F. O. J. Smith and Geo. D. Bisbee, for railroad company.

DICKERSON, J. In pursuance of the authority conferred on them by chapter 204 of the Public Laws of 1871, the railroad commissioners, upon petition therefor and a hearing thereon, decided that public convenience and necessity required the erection and maintenance of a depot for freight and passengers upon the Portland and Oxford Central Railroad, at Hartford Centre, and ordered the corporation to build such depot within thirty days from the receipt of the order. The corporation refused to comply with the order, and the railroad commissioners filed this petition, praying that this court will enforce a compliance therewith.

The duty of governments to provide facilities for public travel and transportation at the public expense, by means of roads, turnpikes, canals and other artificial structures, has been recognized and discharged by all civilized governments from the earliest times. Governments soon learned that such facilities could not be provided by private enterprise alone, and that nothing but the exercise of the right of eminent domain and the power of taxation could satisfy the public necessities in this behalf. In the progress of events, however, as business and population increased and wealth accumulated, it was found that this function of government might, in many cases, be conveniently and safely performed by private individuals, associated together under a grant from the government, the corporation giving the public the right to use the highway built by it, in consideration for the franchise received.

Among the instrumentalities thus employed railroads stand preeminent. Indeed, they have come to be a public necessity scarcely exceeded by the public wants that evoked those ruder means of transit in earlier times. They are open for the public use without VOL. XVIII.-27

Railroad Commissioners v. Portland and, Oxford Central Railroad Co. discrimination. To the State's guaranty of the right of public use are superadded heavy pecuniary liabilities of the corporation in case of a breach of this right. The requirement for the payment of fare does not, by any means, conflict with the right of public use. The fare is the consideration for the service performed, whether done by the State directly, or by a corporation under a grant from the State; it is simply a substitute for the tax rendered necessary when the State builds and conducts railroads at the public expense; the corporation, upon the payment of the fare, is under the same obligation to render the required service for the public that the State would be if railroads were free and conducted by State authority. Nor does the ownership of railroads, whether it be in the State or a private corporation, affect the nature of their use, since in either case the function to be exercised and the uses to be subserved are public. Neither does it make any difference in this respect that private individuals cannot use their own rolling stock upon railroads. The use is one thing, and the mode of use is another. The use, being public, does not become private from the mode of use; that is exclusively within the discretion of the legislature, and whether the railroad corporation, the public or the State have authority under the charter to put on and use rolling stock, the use of the road is, nevertheless, public.

The public character of railroads further appears from the authority granted to them to exercise the right of eminent domain. No such right is ever granted to banking, manufacturing or insurance corporations, or to academies, colleges or hospitals established and conducted by private individuals or private corporations. It is solely because the use of railroads is public that this distinction is made. So, too, upon the same ground of public use, the legislature may authorize municipal corporations to aid in building railroads, by taking stock in railroad corporations and paying for the same by municipal taxation, a power denied to all municipalities in respect to purely private corporations.

The conclusion, therefore, is that railroads, whether built, owned and conducted by the State or private corporations, and whether exacting tolls or free, are public highways. Olcott v. Supervisors of Fond Du Lac, 16 Wall. 678; Belfast & Moosehead Lake R. R. Company v. Brooks, 60 Me. 569; Allen v. Jay, id. 124.

In considering the right of the public to the use of railroads, and the public interest resulting from this right, it should not be