Opinion
(December Term, 1853.)
Where parties enter into an express and specific contract, which is neither general nor doubtful, local usage cannot be resorted to in ascertaining its terms.
ACTION of ASSUMPSIT, tried before his Honor Judge MANLY, at Fall Term, 1853, of Edgecombe Superior Court.
Singeltary, for plaintiff, argued as follows:
The plaintiff says, that when he hired the negro girl, the administrator promised to pay him ten dollars, if she was delivered of a child during the term of hire. That, although nothing was said about it at the time, the promise was implied, and was part of the contract, for it was so understood and acted on by all the persons present and bidding, which the administrator knew, and profited by in silence, which was a virtual assent. The plaintiff then offers to show that it was the established custom of the neighborhood for the owner to pay ten dollars in such cases, and to this the defendant objects. As a matter of fact, it is clear enough that what is here offered in evidence, bears directly on the issue. But the defendant says, it is incompetent under the decision of the Court in the case: HAYWOOD v. LONG, 5 Ired. 438. The Court there decide that the owner of a slave hired is not liable to the physician, because there is a special contract between the physician and the hirer. But it is intimated that the owner might be held answerable to the hirer, because that would carry out the reason of the custom. In the present case, the reason of the custom and its form are together, and no special contract intervenes.
On the former trials of this case, the plaintiff has produced no authority, because, after diligent search through the reports, none could be found. A subsequent reference to the Text Books has supplied the deficiency. Vide Starkie 2, 362; it says: "When parties have not entered into any express and specific contract, a presumption, nevertheless, arises, that they meant to contract, and to deal according to the general usage, practice and understanding, if any such exist, in relation to the subject matter." "Where an agreement between parties is general, or doubtful, the custom and usage of the country in which it was made, are frequently evidence of the terms upon which the parties meant to contract; for, in the one case, their silence raises a presumption that they intended to be governed by the usual course of dealings in such cases, prevalent in the neighborhood."
Another ground taken by the defendant is, that the contract was reduced to writing, and nothing said about the matter is dispute. That is, the plaintiff gave his note for the hire. The answer is, that in this the plaintiff did nothing more than fulfil his part of the contract, which was, that he should pay or bind himself to the payment of a certain sum of money.
Biggs, for defendant.
The defendant, as administrator of Lewis Purvis, hired out a negro girl at public hiring, in June 1851, for the residue of the year, to the plaintiff. Though not known at the time, it soon became manifest that she was pregnant, and in the Fall she was delivered of a child.
There was proof of a long and well established custom in the county, embracing the place of the transaction, and the residences of the parties, to allow the hirer of a woman in such cases ten dollars.
The evidence of the custom was objected to, as immaterial. but the Court held, that, as there was nothing in the law or in the contract to forbid the operation of the usage in case it was so generally known and acquiesced in as to make it a part of the contract: in case, in other words, the custom was a consideration under which the biddings were conducted, and under which the parties acted, in making their bargain, the testimony was material, and if believed, the plaintiff was entitled to recover.
Verdict for plaintiff, and appeal to this Court.
We differ with his Honor upon the question raised on the trial, as to the admissibility of proof of the custom or usage relied on by the plaintiff, to imply a contract in his favor. It is directly opposed to the principle laid down by the Court, in the case of JONES v. ALLEN, 5 Ired. Rep. 473. That was an action brought by a physician, against the owner of a slave, for professional services rendered to the slave, while in the possession of a hirer, and at the instance of the hirer. In support of his action, the plaintiff offered to prove, that, in the section of country where the hiring took place, it was the universal custom for the owners, and not the hirers, to pay for medical attendance upon the slaves, but the testimony was rejected. This Court held that the testimony was properly rejected, and said that "no doubt the liability of general and special owners of hired slaves, for the expenses of their maintenance and medicine during sickness, is often and perhaps generally the subject of contract between them. But, without some stipulation on that point, the general rule of law must operate, and cannot be controlled by any understanding to the contrary, in particular neighborhoods.
There was no established general custom on the point; for, if there was, that would be the law: but a mere local usage in a small part of the country cannot change the law, and give the plaintiffs an action against one man, when they are employed by another. So, in the case before us, it is not contended that the custom is a general one; nor are the terms very generally defined. Whether it extends to hirers by the year, by the half year, by the month or the week, we are not informed. If to the latter, it is very unreasonable, and ought to be abolished by force of the maxim, malus usus abolendus est. But the decisive objection to the allowance of such neighborhood customs is the uncertainty in relation to the proof of them, and the great inconvenience of having local laws, in any part of the State, to regulate matters which ought to be the subjects of express contracts. But the counsel of the plaintiff relies, for the support of his action, upon certain passages in Starkie on Evidence, vol. 2, page 258-9, of 1st Am. edition: "Where parties have not entered into any express contract, a presumption nevertheless arises, that they meant to contract, and to deal according to the general usage, practice and understanding, if such exist, in relation to the subject matter." And again: "Where an agreement between parties is general and doubtful, the custom and usage of the country in which it was made, are freqently [frequently] evidence of the terms upon which the parties meant to contract; for, in the one case, their silence raises a presumption that they meant to be governed by the usual course of dealing in such cases prevalent in the neighborhood." We need not inquire whether Mr. Starkie's doctrine be correct or not; for it is not at all applicable to the case. The parties here did enter into "an express and specific contract," which was neither general nor doubtful, and therefore left nothing to be presumed or inferred.
Judgment reversed, and a venire de novo awarded.